Muller v. Government Printing Office ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
RAYMOND MULLER,
Petitioner
v.
GOVERNMENT PRINTING OFFICE,
Respondent
______________________
2015-3032
______________________
Petition for review of an arbitrator’s decision in Case
No. 14-54839 by Arbitrator Marvin J. Feldman.
______________________
Decided: January 15, 2016
______________________
JOHNNIE ALLEN LANDON, JR., Johnnie Landon, Es-
quire, Washington, DC, argued for petitioner.
MELISSA M. DEVINE, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by EMMA BOND, BENJAMIN C. MIZER, ROBERT E.
KIRCHMAN, JR., REGINALD T. BLADES, JR.
______________________
2 MULLER v. GPO
Before PROST, Chief Judge, DYK, and STOLL, Circuit
Judges.
Opinion for the court filed by Circuit Judge DYK.
Concurring opinion filed by Chief Judge PROST.
DYK, Circuit Judge.
Raymond Muller filed a grievance against his employ-
er, the Government Printing Office, which was referred to
an arbitrator pursuant to a collective bargaining agree-
ment. The arbitrator dismissed the grievance as “not
arbitrable,” on the ground that a four-month deadline for
holding a hearing, required by the agreement, had passed.
We conclude that the arbitrator erred; the contractual
provision does not require dismissal of the grievance in
the event of noncompliance with the four-month deadline.
The deadline is merely a nonbinding housekeeping rule to
encourage timely arbitration, one that is addressed to the
arbitrator as well as the parties. There is no past practice
requiring dismissal under the circumstances of this case.
We accordingly reverse and remand with instructions to
address Mr. Muller’s grievance on the merits.
BACKGROUND
Mr. Muller is an employee of the U.S. Government
Printing Office (“GPO” or “agency”) and a member of the
International Brotherhood of Teamsters, Local 713-S
union (“union”), which belongs to the Joint Council of
Unions. The Joint Council of Unions and GPO are signa-
tories to a collective bargaining agreement, a multi-party
Master Labor Management Agreement (“master agree-
ment”), which creates a negotiated grievance procedure
for GPO employees to contest adverse employment actions
as an alternative to appeal to the Merit Systems Protec-
tion Board (“MSPB”). The master agreement specifies
that resolution of adverse employment actions under the
MULLER v. GPO 3
negotiated procedure can proceed to arbitration if not
resolved at the agency level.
Article VII of the master agreement sets forth various
rules for the arbitration process. Section 10.d.(1) of the
master agreement stipulates that, “[i]f the grievance is
not resolved [at the agency level] . . . the union may
inform the Director, Labor and Employee Relations
Service of its decision to proceed to arbitration.” J.A. 42.
Arbitration must be invoked within 30 days: “This written
statement must be submitted to the Director within 30
days after the decision of the Joint Grievance Committee”
of agency and union officials. J.A. 42. Sections 10.d.(2)
and (3) establish the rules of arbitrator selection, includ-
ing the possibility that either the union or the agency may
begin the arbitrator selection process and that the Feder-
al Mediation and Conciliation Service (“FMCS”) can step
in if the process stalls. J.A. 42–43. Section 10.d.(4) states
that “[t]he arbitration hearing will take place within 4
months after filing of the notice of decision to proceed to
arbitration, unless the parties mutually agree to an
extension of the time limit.” J.A. 43. Section 11.e speci-
fies that “[a]n arbitrator will render his decision as quick-
ly as possible, but not later than 30 calendar days after
the close of the record.” J.A. 43.
Mr. Muller was reassigned between divisions of the
GPO, resulting in demotion to a lower grade and a reduc-
tion in pay, an adverse employment action under 5 U.S.C.
§ 7512. Mr. Muller elected to challenge his reassignment
through the negotiated grievance procedure, and, after
proceeding through the steps of review required by the
master agreement, the agency issued a decision denying
the grievance. The union timely invoked arbitration on
February 19, 2014, and requested and received a list of
arbitrators from the FMCS on April 2, 2014. The union
and the GPO jointly selected Marvin Feldman as arbitra-
tor, and Mr. Feldman was notified of his selection on May
4 MULLER v. GPO
29, 2014. The arbitrator thus received the case approxi-
mately three weeks prior to June 19, 2014, the date on
which the four-month deadline expired. The arbitrator
wrote the union and the agency on June 9, 2014, to sug-
gest the hearing be held July 23 or August 6, 2014.
On June 19, 2014, four months to the day from the
date that arbitration had been invoked, the GPO wrote to
the union and the arbitrator to ask that the arbitration be
closed for failure to comply with the four-month deadline.
The arbitrator requested briefs from both sides on the
question of arbitrability and ultimately issued a decision
on September 15, 2014, dismissing Mr. Muller’s grievance
as “not arbitrable,” J.A. 7, because the master agreement
“requires that the arbitration hearing take place within
four months after filing of the notice of decision to proceed
to arbitration, unless the parties mutually agree to an
extension of that time limit,” J.A. 5. The arbitrator
concluded that noncompliance with the four-month hear-
ing deadline automatically terminated the grievance but,
at the same time, found that the union was primarily
responsible for the delay. “[T]here is ample evidence in
the record, although none is required contractually, that
the union, not FMCS, was the direct and primary cause
for the failure of the parties to meet the four-month
requirement.” J.A. 6.
Mr. Muller petitions for review, arguing that the arbi-
trator’s decision to close arbitration and dismiss the
grievance was arbitrary, capricious, and an abuse of
discretion, and was not supported by substantial evi-
dence. Mr. Muller requests that the arbitrator’s decision
be set aside. We have jurisdiction under 5 U.S.C.
§§ 7121(f) and 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
MULLER v. GPO 5
DISCUSSION
I
Under 5 U.S.C. § 7121(e)(1), part of the Civil Service
Reform Act of 1978 (“CSRA”), a federal employee seeking
to challenge disciplinary action by his employing agency
may appeal his claim to the MSPB or, alternatively, take
his claim to an independent arbitrator under a negotiated
grievance procedure created by collective bargaining
agreement. The arbitrator’s decision is reviewed by this
court under 5 U.S.C. § 7121(f). Section 7121(f) establishes
that arbitrations of such grievances are reviewed under
the same standard of review that applies to appeals from
decisions of the MSPB. The statute provides that, “[i]n
matters covered under sections 4303 and 7512 of this title
which have been raised under the negotiated grievance
procedure in accordance with this section, section 7703 of
this title . . . shall apply to the award of an arbitrator in
the same manner and under the same conditions as if the
matter had been decided by the Board.” 5 U.S.C. § 7121(f);
see also Cornelius v. Nutt, 472 U.S. 648, 661 n.16 (1985);
Newman v. Corrado, 897 F.2d 1579, 1582 (Fed. Cir. 1990).
Mr. Muller’s claim arises under § 7512, as it concerns a
reduction in grade and a reduction in pay, so § 7703
applies here. 5 U.S.C. § 7512(3), (4).
Section 7703(c) requires this court to set aside “any
agency action, findings, or conclusions found to be (1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); see also Appleberry v. Dep’t of Home-
land Sec., 793 F.3d 1291, 1295 (Fed. Cir. 2015). The
standard of review under § 7703 differs from the standard
that applies to arbitrations conducted under the Federal
Arbitration Act, 9 U.S.C. § 1 et seq., where an arbitrator’s
6 MULLER v. GPO
decision can be set aside only under narrow circumstanc-
es, such as corruption or misconduct on the part of the
arbitrator. 9 U.S.C. § 10(a); see also Hall Street Assocs.,
L.L.C. v. Mattel, Inc., 552 U.S. 576, 584–85 (2008); First
Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995).
This difference, with substantially less deference granted
to arbitrations of the grievances of federal employees, is
consistent with the purpose of the CSRA, which created
arbitration defined by collective bargaining agreement as
a parallel alternative to dispute resolution at the MSPB.
“Congress clearly intended that an arbitrator would apply
the same substantive rules as the Board does in reviewing
an agency disciplinary decision.” Cornelius, 472 U.S. at
660.
The CSRA makes clear that employees and their un-
ions are obliged to invoke arbitration promptly, or their
claims are forfeited. See, e.g., 5 U.S.C. § 7121(e)(1) (“An
employee shall be deemed to have exercised his option
under this subsection to raise a matter . . . under the
negotiated grievance procedure at such time as the em-
ployee . . . timely files a grievance in writing in accordance
with the provisions of the parties’ negotiated grievance
procedure . . . .”) (emphasis added). As the government
points out, failure to comply with the deadline for invok-
ing arbitration can result in dismissal of an employee’s
grievance. In Appleberry, we upheld an arbitrator’s
dismissal of a federal employee’s claim because it “was not
properly ‘raised under the negotiated grievance procedure’
in the first place,” 793 F.3d at 1297, the employee having
failed to invoke arbitration within 30 days of the agency’s
denial of her grievance, as required by the controlling
collective bargaining agreement, id. at 1294.
However, the CSRA does not itself create any statuto-
ry timing requirements that apply after arbitration has
been invoked. Instead, arbitration of grievances is al-
lowed to proceed under a timetable and procedural rules
MULLER v. GPO 7
set by the governing collective bargaining agreement. We
have noted that “[c]ourts should be careful not to ‘judicial-
ize’ the arbitration process. Arbitration normally envi-
sions that each case be decided on its own under the
controlling contract . . . .” Gonce v. Veterans Admin.,
872 F.2d 995, 998 (Fed. Cir. 1989). “The collective bar-
gaining agreement is the primary tool used in the arbitra-
tion process.” Gunn v. Veterans Admin., 892 F.2d 1036,
1038 (Fed. Cir. 1990). It is therefore up to the negotiating
parties to impose any internal deadlines on the arbitra-
tion process.
II
The government notes, correctly, that “collective bar-
gaining agreements are . . . contracts governed by the
rules of contract interpretation.” Respondent’s Brief at 12
(quoting Muniz v. Newman, 972 F.2d 1304, 1320 (Fed.
Cir. 1992)). “Interpretation of a collective-bargaining
agreement is a question of law we review de novo.” Gar-
cia v. Dep’t of Homeland Sec., 780 F.3d 1145, 1147 (Fed.
Cir. 2015); see also Huey v. Dep’t of Health & Human
Servs., 782 F.2d 1575, 1577 (Fed. Cir. 1986) (“It is well
settled that the interpretation of a[] [collective bargain-
ing] agreement is for the court.”). We conclude that
noncompliance with the four-month deadline in Sec-
tion 10.d.(4) of Article VII of the master agreement does
not require dismissal of the arbitration.
First, Section 10.d.(4) is not directed specifically to the
union; it is not within the union’s power to ensure compli-
ance with the four-month deadline; and the provision does
not specify dismissal as a sanction for failure to comply
with the deadline. As an initial matter, the master
agreement does establish at least one deadline that is
clearly directed to, and binding on, the union. Consistent
with 5 U.S.C. § 7121(e)(1), the master agreement creates
a 30-day deadline for invoking arbitration via written
8 MULLER v. GPO
notice. Section 10.d.(1) of Article VII of the agreement
specifies,
If the grievance is not resolved at Step 3 or there
is no response in the time limit set forth above,
the union may inform the Director, Labor and
Employee Relations Service of its decision to pro-
ceed to arbitration. This written statement must
be submitted to the Director within 30 days after
the decision of the Joint Grievance Committee.
J.A. 42.
However, subsequent arbitration steps recited in the
master agreement either impose no deadlines or the
deadlines (as with the four-month deadline) are not
directed to the union alone. Sections 10.d.(2) and (3) of
Article VII of the agreement, which follow Sec-
tion 10.d.(1), establish the rules for selecting an arbitrator
but do not include any time limits. J.A. 42–43. Sec-
tion 10.d.(4) of Article VII next provides that, once an
arbitrator has been selected, “[t]he arbitration hearing
will take place within 4 months after filing of the notice of
decision to proceed to arbitration, unless the parties
mutually agree to an extension of the time limit.” J.A. 43.
This deadline is not directed solely to the union but to the
parties collectively as well as to the arbitrator. Sec-
tion 11.e of Article VII later provides that “[a]n arbitrator
will render his decision as quickly as possible, but not
later than 30 calendar days after the close of the record,”
a deadline directed to the arbitrator alone. J.A. 43.
The arbitrator found, and the government now ar-
gues, that the four-month hearing deadline of Sec-
tion 10.d.(4) binds the union. However, the four-month
deadline, which immediately follows the provisions of the
master agreement concerning selection of the arbitrator,
is clearly addressed to all three actors, not to the union
alone. Section 10.d.(4) indicates that once an arbitrator
MULLER v. GPO 9
has been selected, pursuant to Section 10.d.(3), the arbi-
trator, union, and agency should work together to sched-
ule a hearing. Unlike the 30-day deadline for invoking
arbitration, compliance with which is entirely within the
union’s control, the union cannot unilaterally ensure that
a hearing is held within four months. Indeed, under the
arbitrator’s approach, even delay occasioned entirely by
the government would result in dismissal of an employ-
ee’s grievance.
Both the four-month hearing deadline of Sec-
tion 10.d.(4) and the 30-day arbitration decision deadline
of Section 11.e are, on their face, provisions to encourage
prompt handling of the grievance. Neither contractual
provision stipulates any consequences for the union or the
agency in the event of noncompliance with these dead-
lines, and indeed Section 10.d.(4) expressly contemplates
the possibility of the parties’ agreeing to extend the four-
month deadline.
The government argues that, in fact, Section 9 of Arti-
cle VII of the master agreement creates consequences for
the union if the time limits of Section 10 are not met.
Section 9 reads, in full,
Expeditious Handling. The parties agree that they
will handle grievances in an expeditious manner
and abide by the time limits set forth in this
agreement. If these time limits are not met, the
grievance will move to the next step as provided
in Section 10 of this Article.
J.A. 42. Section 9 adds precatory language encouraging
the parties to proceed “in an expeditious manner and
abide by the time limits,” and states that failure to meet a
deadline will result in the grievance moving to the next
step. The only next step after a hearing is the decision by
the arbitrator. It is nonsensical, and the government does
10 MULLER v. GPO
not argue, that failure to meet the four-month deadline
should result in a decision without a hearing.
The government conceded at oral argument that the
30-day decision deadline of Section 11.e is merely a goal
for the arbitrator, triggering no consequences for noncom-
pliance, and that an arbitrator’s delay in issuing a deci-
sion would not prejudice an employee’s claim. The
government, and the arbitrator’s decision, offer no expla-
nation why the four-month hearing deadline should be
treated any differently. Neither deadline is within the
union’s unilateral control, and the master agreement
specifies no consequences for noncompliance with either.
As the government notes, our court has upheld arbi-
trators’ dismissals of employee grievances when the
employee, or his union, failed to comply with internal
deadlines imposed on him by the collective bargaining
agreement, but in these cases the relevant contractual
deadlines were specifically directed to the union. In
Gonce, we affirmed an arbitrator’s dismissal of two feder-
al employees’ claims because the union failed to comply
with a requirement in the collective bargaining agree-
ment that “the moving party . . . request the Federal
Mediation and Conciliation Service to provide a list of
seven (7) impartial persons to act as an arbitrator.”
872 F.2d at 996 (alteration in original). The Gonce court
noted that “it was the union’s responsibility to request the
panel of arbitrators ‘on or after the date of the notice of
arbitration’ so as to secure ‘prompt and equitable resolu-
tion of grievances,’ but it waited seventeen months before
it did.” Id. at 999. Gonce noted further that the govern-
ing collective bargaining agreement specified “strict time
limits on earlier steps of the grievance procedure no
longer than forty-five days.” Id.; see also Gunn, 892 F.2d
at 1038 (assuming that noncompliance with an arbitrator
selection deadline directed to the union (as moving party)
MULLER v. GPO 11
would have forfeited an employee’s grievance, absent
waiver by the agency).
In Herrera v. Department of Homeland Security, we
upheld the MSPB’s affirmance of an arbitrator’s dismissal
of an employee’s grievance due to the union’s noncompli-
ance with an “obligation to cooperate promptly with the
designated arbitrator in setting a date for a hearing” and
“for failing to proceed with due diligence in setting a
hearing date pursuant to the [collective bargaining
agreement].” 498 F. App’x 35, 38 (Fed. Cir. 2012). In
Herrera, the union asked for and received an extension of
time to schedule an arbitration hearing date but then
failed to respond by that extended deadline. Id. Unlike
the master agreement at issue here, the controlling collec-
tive bargaining agreement in Herrera expressly provided
that noncompliance with the arbitration timetable could
lead to dismissal of the grievance: “Failure of either party
to proceed with due diligence in responding to an offer of
dates may serve as a basis for establishment of a hearing
date by the arbitrator or dismissal of the grievance.” Id.The case at hand is similar to Stevens v. Department
of the Air Force. 395 F. App’x 679 (Fed. Cir. 2010). In
Stevens, a collective bargaining agreement governing
resolution of Air Force employee grievances specified that
the agency would “strive to effect disciplinary action
within . . . 45 days of the offense” but defined no conse-
quences for noncompliance. Id. at 681, 682. Our court
affirmed a finding by the MSPB that the 45-day decision
deadline merely “articulated a goal, rather than a manda-
tory time limit.” Id. at 682. We concluded that such a
deadline is “best read as a housekeeping requirement that
is not judicially enforceable.” Id. (quoting Timken U.S.
Corp. v. United States, 421 F.3d 1350, 1357 (Fed. Cir.
2005)).
12 MULLER v. GPO
Here, as in Stevens, the deadline is a goal, not a re-
quirement, and the master agreement specifies no conse-
quence for failure to observe the four-month deadline.
The provision is thus merely a housekeeping rule. Of
course, the parties are free to contract into binding dead-
lines that guarantee prompt dispute resolution, if they so
desire. But they did not. Here there is nothing in the text
of the master agreement to indicate that the GPO or the
union intended noncompliance with the four-month
hearing deadline to lead to automatic dismissal of
Mr. Muller’s grievance. 1
1 The government suggests that without an auto-
matic dismissal rule, there would be no way to prevent
the union from unduly delaying the proceeding. However,
other provisions of the master agreement operate to
ensure diligence. First, as noted above, the union must
invoke arbitration within 30 days of a decision by the
Joint Grievance Committee or forfeit the grievance.
Second, if the union were to invoke arbitration on time
but fail to initiate arbitrator selection, the agreement
specifies that the agency has the authority to do so. J.A.
42 (Section 10.d.(2)). Third, if the union were to fail to
participate in the strike process for arbitrator selection,
“the FMCS will be empowered to select” an arbitrator.
J.A. 43 (Section 10.d.(3)). The FMCS has that power “[i]f
either party refuses to take part in selecting an arbitra-
tor.” Id.Moreover, an arbitrator, once selected, has inherent
authority to create a timetable for arbitration and conse-
quences for noncompliance therewith (limited, of course,
by the precise terms of the controlling collective bargain-
ing agreement). See, e.g., Uliano v. Ctrs. for Medicare &
Medicaid Servs., 185 F. App’x 967, 970 (Fed. Cir. 2006)
(affirming an arbitrator’s dismissal of an agency employ-
MULLER v. GPO 13
There is therefore no basis in the text of the master
agreement to support the arbitrator’s conclusion that
noncompliance with the four-month hearing deadline
automatically invalidated Mr. Muller’s claim. The arbi-
trator was wrong to conclude that “the plain language of
the contractual provision” obliged him to terminate the
arbitration. J.A. 7.
III
Second, there is no past practice between the parties
suggesting that the agreement should be interpreted to
require dismissal for failure to comply with the deadline
when the matter was submitted to the arbitrator in time
for a hearing to be held within the four-month period.
The arbitrator found, and the government now argues,
that past practice of the GPO should lead to an interpre-
tation of the master agreement under which failure to
comply with the four-month deadline requires dismissal.
It is true that past practices can supplement a collec-
tive bargaining agreement. The Supreme Court has
noted that “[t]he labor arbitrator’s source of law is not
confined to the express provisions of the contract, as the
industrial common law—the practices of the industry and
the shop—is equally a part of the collective bargaining
ee’s grievance in view of the employee’s failure to appear
at an arbitration hearing and noting that “[t]he Supreme
Court has recognized the inherent power of a decision
maker to dismiss a case for failure to prosecute”) (citing
Chambers v. NASCO, 501 U.S. 32, 49 (1991)); Forsythe
Int’l, S.A. v. Gibbs Oil Co. of Tex., 915 F.2d 1017, 1023 n.8
(5th Cir. 1990) (“Arbitrators may, for example, devise
appropriate sanctions for abuse of the arbitration pro-
cess.”); cf. 5 C.F.R. § 1201.43(b) (granting the MSPB
authority to dismiss an appeal for failure to prosecute).
14 MULLER v. GPO
agreement although not expressed in it.” United Steel-
workers of Am. v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 581–82 (1960); see also Cruz-Martinez v.
Dep’t of Homeland Sec., 410 F.3d 1366, 1370 (Fed. Cir.
2005). In Cruz-Martinez we upheld an arbitrator’s dis-
missal of an employee grievance because his union waited
longer than a year after invoking arbitration to request
an arbitrator and schedule a hearing, in violation of an
established practice of the parties. 410 F.3d at 1367,
1372. We found that the past practice there created a
binding, consequential deadline even in the absence of
express language in the collective bargaining agreement.
Id. at 1370. “Clear and long-standing practices of the
parties—in other words, ‘past practices’—can establish
terms of the agreement that are as binding as any specific
written provision.” Id. “The arbitrator’s reliance on the
sixteen years of the union’s acquiescence in the past
practice is substantial evidence supporting the arbitra-
tor’s decision” to dismiss the employee’s claim. Id.The past practice evidence in the record here consists
of eight letters from the GPO to the union dismissing
grievances because no arbitration hearing had been held
within four months of invocation of arbitration. In each of
the letters, the agency sought to dismiss a grievance
because the union had failed to select an arbitrator within
the four-month window. The letters therefore evidence an
established practice of closing arbitration when the union
was not diligent in selecting an arbitrator before the four-
month deadline.
Mr. Muller’s situation is different. Even if the union
were dilatory up to the point that the arbitrator was
selected, there is no question that Mr. Muller’s grievance
was submitted to the arbitrator in sufficient time to
schedule and conduct a hearing within four months. The
GPO and the union jointly selected Mr. Feldman as
arbitrator in April of 2014, and the union informed FMCS
MULLER v. GPO 15
of the selection on May 9. FMCS notified the arbitrator of
his selection on May 29, three weeks prior to the four-
month deadline of June 19, 2014. At oral argument,
Mr. Muller’s counsel indicated that the hearing would
likely have taken a few days, and the government conced-
ed that the hearing could have been held within the three
week period. Unlike the eight letters cited by the gov-
ernment, here the union succeeded in getting the griev-
ance into the arbitrator’s hands within the four-month
limit. At that point, under the terms of Section 10.d.(4),
the duty to proceed diligently to hearing was not the
union’s alone but was instead shared among the arbitra-
tor, the agency, and the union.
As the government conceded at argument, there is no
evidence in the record of past practice germane to the
situation here, where an arbitrator was timely selected
and the case was in his hands comfortably before the four-
month deadline. There is accordingly no basis in past
practice to support dismissal of Mr. Muller’s claim.
IV
In view of the plain language of the master agreement
and the absence of any pertinent past practice evidence,
we find that the arbitrator’s dismissal of Mr. Muller’s
claim was contrary to the collective bargaining agree-
ment. The case is remanded for a determination of the
merits of Mr. Muller’s grievance. Given that Mr. Feldman
has withdrawn from the case for medical reasons, the
parties must select a new arbitrator under the terms of
their agreement.
REVERSED AND REMANDED
COSTS
Costs to petitioner.
United States Court of Appeals
for the Federal Circuit
______________________
RAYMOND MULLER,
Petitioner
v.
GOVERNMENT PRINTING OFFICE,
Respondent
______________________
2015-3032
______________________
Petition for review of an arbitrator's decision in No.
14-54839 by Marvin J. Feldman.
______________________
PROST, Chief Judge, concurring.
I join the majority opinion in the result based on the
facts and circumstances of this case and in its reasoning
with respect to Part III. I respectfully disagree, however,
that in all circumstances, the provisions of the Master
Labor Management Agreement (“master agreement”) at
issue should be construed as having no consequences for
the parties here. I agree that in the absence of clear past
practice, we must look to the text of the master agreement
and surrounding circumstances to determine the conse-
quences for failure to comply with the deadlines imposed
by the master agreement.
As the majority notes, the master agreement does not
explicitly provide that non-compliance with the deadlines
2 MULLER v. GPO
imposed in Section 10 could lead to the dismissal of the
grievance. However, I respectfully disagree that in the
absence of an established prior course of conduct, the lack
of an explicit consequence for noncompliance requires that
the deadline is a mere “housekeeping rule.” Majority Op.
at 12. Rather, we should look to the facts and circum-
stances surrounding the delay and the party or parties
who may control compliance with the stated deadlines.
Here, the union was not the sole cause of delay. The
grievance was submitted to the arbitrator in sufficient
time to complete the hearing before the four month dead-
line in the master agreement. From the time the matter
was submitted, scheduling was jointly controlled by the
arbitrator, the agency, and the union. Because the union
could not unilaterally ensure that the hearing took place
in time under these circumstances, it should also not be
penalized for the failure. However, in cases where the
delay can be solely attributed to a single party, then it
would be appropriate to enforce the deadlines present in
the master agreement against the party responsible.
Accordingly, like the majority, I would reverse the ar-
bitrator’s decision and remand the case to address the
merits, but on the basis that the union was not the sole
cause for the delay.