Arbitration: Time Limits and Continuing Violations

Time limits in a collective bargaining agreement, particularly as they apply to the grievance procedure, are very important. Filing or processing deadlines are taken as seriously in the context of these private documents and negotiated time limits as they are in the world of standard litigation, with deadlines that are imposed statutorily or otherwise. Management advocates often view the time limitation provisions as virtually the only thing employers gain, as opposed to give, in the bargaining relationship. Deadlines have been strictly, if reluctantly, construed by most arbitrators. The “continuing violation” provides a meaningful exception to the otherwise immutable time bar. As the violation continues, so does the window of opportunity to protest it. The most important element in recognizing a new violation is the fact that the arbitrator will not consider the failure to grieve prior breaches fatal to the claim of one protesting the current actions. But defining what the continuing violation does is easier than understanding what it is. It is apparent that the term itself – “continuing violation” – is both a misnomer and a source of some confusion among the parties and in the minds of arbitrators as well, and that leads, on occasion, to conceptual dilemmas and errant results. The purpose of this discussion is to highlight the true nature of this very important concept.