What Happens When The Employer Fails To Respond To A Grievance?

Written on 07/09/2022
Will Aitchison

Police officers for the City of St. Petersburg, Florida are represented by the Sun Coast Police Benevolent Association. The PBA filed an unfair labor practice charge alleging that the City had violated its bargaining obligation in the handling of a termination grievance.

At issue was the City’s failure to answer the grievance at Step 1 of the contract’s grievance procedure. Though the contract requires that the Chief “shall issue a written response that includes an affirmation or denial of the facts upon which the grievance is based,” the City instead directed that the grievance be advanced to Step 2 on the day the griev­ance was filed. That afternoon, the PBA sent a letter to the City objecting to what it perceived as an attempt by the City to ignore Step 1 of the grievance procedure.

In an abundance of caution, the PBA advanced the grievance to Step 2, which requires a meeting between the City’s labor relations manager and the grievant. Despite this provision, the only Step 2 communication from the City was an email to the PBA stating that someone would be in touch. However, no such contact was made.

In its unfair labor charge, the PBA maintained that because the City failed to participate in Steps 1 and 2 of the grievance process, the City has effectively granted the grievance. The PBA argued that the City was attempting to avoid reinstatement of the officer by forcing a moot and costly arbitration proceeding, and that even if the City’s silence did not amount to sustaining the grievance, it refused to discuss the grievance in good faith.

The General Counsel for PERC dismissed the charge. The General Counsel found that “as an initial matter, the charge is factually deficient. Section 447.503(1), Florida Statutes, and Florida Administrative Code Rule 60CC-5.001(5) require a charge to be accompa­nied by documentary evidence sufficient to support a prima facie violation of the applicable provision. A charge must be accompanied by a copy of the CBA under which it was filed. Here, the PBA did not submit a full copy of the CBA, only the provision governing grievances.

“Even if the PBA had included the entire CBA, the charge still would not be sufficient. PERC has explained that an employer’s technical noncompliance with a grievance procedure, or failure to respond to a grievance at a pre-arbitral step, is unlawful only if the employer’s conduct prohibits the grievant from advancing the grievance to arbitration and thus fully utilizing the contractual grievance procedure. While the City initially may not have complied with the terms of the CBA, the City had informed the PBA that it was willing to proceed directly to arbitration or to participate in a Step 2 hearing.

“Thus, the City is not prohibiting the PBA from advancing the grievance to arbitration. To the contrary, the City is actively attempting to resolve the grievance. Therefore, the PBA has failed to demonstrate a prima facie violation of Section 447.501(1)(f), Florida Statutes, and this portion of the charge is insufficient.”

Sun Coast PBA v. City of St. Peters­burg, 2022 WL 1521990 (Fla. PERC Gen. Coun. 2022).

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