2 Grievances Reno Training October 2003 John R. ObstVice President NFFEMelissa BaumannVP Forest Service CouncilJohn PaolinoSecretary-Treasurer NFFE
3 It is a given that disputes will arise among people. Workplace conflicts WILL happen!There are many ways to address and resolve workplace disputes.
4 But the Route for Resolving Workplace Disputes is: The Grievance Procedure.Master Agreement Article 9
5 Grievance Procedure (AKA Negotiated Grievance Procedure - NGP) The NGP is the most important part of any collective bargaining agreement (CBA). (CBA = “contract” = Master Agreement in the FS).Required by law to be in every CBA.Why? It is the process used to resolve contract disputes.
6 Negotiated Grievance Procedure is EMPLOYEE POWER. The NGP is the most versatile and powerful process there is to address workplace complaints AND, most importantly, the final word does notrest with management.NGP/Arbitration addresseswhat’s right, not who’s right.
7 Some other routes for resolving issues: Unfair labor practice (ULP) filed with Federal Labor Relations Authority (FLRA).EEO complaint process.OSHA complaints.Negotiations.Merit systems protection board (MSPB).Office of Special Counsel (OSC).Whistleblower complaint.Other processes (litigation, OPM appeals, etc.)
8 Are there other “grievance processes”? The NGP is the ONLY grievance process that Bargaining Unit Employees may use.“Informal grievances” have no standing under the Master Agreement.Administrative grievances (using an agency grievance process) are not permitted. (Alternative Dispute Resolution is not a grievance process.)
9 According to Title 5 U.S. Code 7121 the NGP must be: Fair and simple.Provide for expeditious processing.
10 According to U.S. Code, the grievance procedures must: Assure that the Union, in its own behalf, or on behalf of any Bargaining Unit employee, may present and process grievances;Assure an employee the right to present a grievance, and assure the Union the right to be present during grievance proceedings;Provide for a binding arbitration process when grievances cannot be resolved.
11 Who can file (NGP) grievances? An employee in theBargaining Unit.The Union.The Agency.Can an employee file a grievance against another employee? No.Can a manager file a (NGP) grievance against the agency? No.
12 Who may represent a Bargaining Unit employee in the NGP? The grievant can represent her/himself.The Union.The Union is the exclusive representative of the BU.No one else, such as a friend,co-worker, relative, attorney, etc.,may represent the grievant, unless authorized by the Union.It is rare when the Union authorizes someone else to represent the grievant. Usually, it will be an attorney. Be sure to check with your RVP or GC Chair or NFFE before doing so. If the attorney is not being paid by the Union, a clear written understanding that the grievant is responsible for attorney fees must be signed so that the Union is not financially liable. Note: in some cases, if the grievant prevails, attorney fees may be paid by the agency.
13 Who may represent the Agency? Supervisor or Manager.HR Specialist.Labor Relations Officer.Attorney.Other designated officials.
14 Who may represent the Agency and make binding decisions? Only an Agency official with the authority to resolve the grievance may formally respond or offer resolution.
15 What should happen if the agency official receiving the grievance does not have the authority to grant resolution?MA Article 9.6.f.:- Manager is to inform the grievant of the lack of authority and forward the grievance to the official at the higher step of the process.
16 What is a grievance? (MA Article 9) A grievance is any complaint:by any Bargaining Unit (BU) employee concerning any matter relating to employment of the employee;by any labor organization concerning any matter relating to employment of any employee; or
17 What is a grievance? (cont’d) (MA Article 9) A grievance also is any complaint:by any employee, labor organization, or agency concerning -the effect or interpretation, or a claim of breach, of a collective bargaining agreement; orany claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.
18 What is not grievable? (MA Article 9.3) Hatch Act violations.Retirement, life or health insurance.Suspension or removal for nationalsecurity reasons.Any examination, or certification,administered by OPM.Appointments.Generally, these issues may be addressedthrough other complaint processes.
19 What is not grievable? (MA Article 9.3 continued) Position classification.RIF or furloughs of more than thirty (30) days.Separations during a probationary or trial period.Determinations of exempt/non-exempt status and claims for compensation under FLSA.Generally, these issues may be addressedthrough other complaint processes.
20 Contracting out (mgmt. right). Compliance with the A-76 Process (?). What is not grievable?Contracting out (mgmt. right).Compliance with the A-76 Process (?).
21 A-76 and the Collective Bargaining Agreement Grievances on non-compliance with Circular A-76 are non-negotiable and non-arbitratable. [(U.S. Department of Treasury, IRS v. FLRA, 996 F. 2d 1246 (D.C. Cir. 1993); AFGE Local 1345 and DOD, Fort Carson, 48 FLRA 168, 206 (1993).]
22 BUT, case law was established for the old OMB Circular A-76. There is no case law on the new Circular.The old Circular had an appeal process built in, the new Circular does not.Grievances that are filed on the newA-76 Circular will test existing case law.
24 Grievance Handling - Initial BUE contact Conduct private, confidential interviews with the grievant.Put the employee at ease.Encourage discussion about issues giving rise to the complaint; get the background.Let the employee tell his/her own story.Listen attentively, do not interrupt.Give full attention. Do not create a negative atmosphere.
25 Grievance Handling - Initial contact cont’d. Take Notes.When the employee has finished, ask questions to clarify any issue.Get names, times, and places involved.Avoid personalizing the issues, maintain an objective position.Avoid asking questions which may reveal some predisposed decision on how the complaint will be handled.Have the employee repeat the story.
26 Grievance Handling - Initial contact cont’d. Avoid being baited by the employee or becoming irritated.Recap your understanding of the complaint.Clarify the remedy sought; don’t ask for remedies which aren’t available.Complete a complaint form (handout), have the grievant sign it.Don’t make any promises- other than to do your best.
27 Grievance Handling - Preparation Check the time limits; monitor the “clock.”Prepare a file containing a copy of the signed complaint form and your notes.Check appropriate contract provisions, regulations, laws and policies.Check to see if the matter is grievable and/or arbitrable.Make copies of relevant documents and place file them.
28 Grievance Handling - Investigation Locate and interview all witnesses and persons, including management officials who may have knowledge of the circumstances giving rise to the grievance.Check all facts.Visit the site, if necessary.Check past practices and similar cases and their disposition.Take Notes.Cannot compel anyone to respond to interviews!
29 Investigative techniques Stop talking – you cannot listen wellwhile talking.Empathize with the grievant.Ask questions.Concentrate on what the grievant is saying.Observe the grievant’s body language.Listen for what is not said.Evaluate the facts and evidence, be objective.
30 Evaluation of the case. Examine all records and documents. Determine if you need to file an information request with management.Review all the facts of the case.Consider strengths and weaknesses ofthe case.Consider if this is the proper forum (NGP, MSPB, EEOC, OWCP, negotiations, Other?).Develop possible solutions.
31 Evaluation Cont’d NOTE: When an employee is the recipient of a disciplinary or adverse action, the burdenof proof rests with the employer.When the employee is making the allegation, the burden of proof rests with the employee.
32 Evaluation Cont’dIf, in the case of disciplinary or adverse action, the action taken is supported by the evidence, then mitigating factors (Douglas Factors) need to be explored to determine if the penalty is too harsh and may be reduced.
33 Evaluation Cont’dReach a preliminary decision on the merits of the case; consider any other factors.Seek advice and assistance, if necessary.
34 Decision Time If filing a grievance is not warranted: Be prepared to explain your reasoning to the employee. (And file the explanation.)Some reasons for not filing a grievance:Matter not grievable or arbitrable.No violation of law, rule, regulation or contract.Facts and evidence do not support allegation.Matter may be best pursued in another forum.
35 Decision Time Cont’d When filing a grievance is warranted: Meet with employee to advise him/her of the results of your investigation.Prepare the grievance for the employee to sign. You may sign for the grievant as their representative and/or as a Union representative.Confirm the remedy sought.But, do not promise to obtain the remedy sought.Do not promise to refer the matter to arbitration if the grievance is not resolved.
36 Writing the Grievance; in general: Use the information on the grievance form.Address the grievance to the appropriate management official.Include the name of the grievant and his/her title.Clearly state the grievance, including dates, times, and location. If there is a main issue, list it first. (Sometimes, separate grievances for each issue are advisable.)
37 Writing the Grievance, cont. State the facts of the case.Briefly state your positions on the issues. No requirement to fully argue your case in writing*. Identify any mitigating factors.List the remedies requested. If the grievance is over discipline/adverse actions you need to request that the employee be made “whole.” You should also add “should the evidence support discipline the penalty should be appropriately reduced”.An exception to written arguments – if the step three grievance is going to the WO – written arguments have been found to be helpful as the WO will rarely meet to discuss or do ADR.
38 Grievance specifics, first step Clearly state:What the issue isViolation of law or policy;Violation of Master Agreement;Complaint about a condition of employment;Violation of a past practice.The facts in the casewho did what;when;where.The requested remedy (along with statement such as “or other appropriate resolution”).
39 Grievance specifics, first step (cont’d) Request that Union (and employee) meet with responding official to discuss issues and resolutions.Request alternative dispute resolution -- Early Intervention Program, mediation, etc.Include any supporting documentation (label and reference in the text).
40 Grievance specifics, first step (cont’d) File with proper officialFor specific employee complaint other than adverse action: First line officerFor adverse action or performance-based action: File as 3rd step grievance with Regional Forester, Station Director, JC Field Office Director*.Union grievance for general violation of law, rule, regulation, MA, etc.: ???Keep evidence of date grievance was filed. to official and cc yourself. SAVE.First line officer:District Ranger,Staff Director,Job Corps Center Department Head,RO/WO Group Leader,Supervisory Law Enforcement Officer,Station Project Leader/Group Leader,Nursery Superintendent, orIITF Assistant Director or Group Leader(For employees who are assigned to report to a higher level, e.g. located in the RO, it is possible that the first line officer is the Regional Forester)
41 Local Union grievance of general violation of law, rule, regulation, Master Agreement: Article 9 is silent. Therefore,File with the official whom you think can resolve the complaint.And, file with your 1st line officer.And, file with anyone else in between just to be safe.Include statement: “If you are not the proper official to respond to this grievance, please forward it to that official and so inform me.”
42 Remedies Must not be illegal. Agency must have authority to grant. For example, management cannot grant:Discipline for another employee/manager (although management can assure the grievant that the allegation will be investigated and appropriate action taken).Cash settlements beyond the loss the employee suffered as a result of management’s actions (no punitive damages).
43 Remedies (cont’d)Should not adversely affect the rest of the bargaining unit.If case goes to arbitration, the arbitrator must not order anything that excessively infringes upon mgmt rights.For discipline which is overly harsh, it is wise to ask for a “reduction of penalty to a more appropriate penalty” rather than a specific penalty (or no penalty).If there are expenses incurred as a result of management’s actions and the Union’s representation, request that they be recovered (including attorney fees).To determine the mission, budget, organization, and number of employees in AgencyTo determine internal security practices of the AgencyTo hire, fire, layoff, discipline employeesTo assign work, make determinations regarding contracting out, determine personnel by which management’s operation shall be conductedIt is OK to ask for something that infringes upon management rights in the first step (e.g. a transfer due to problems with the employees’ relationship with his/her supervisor). Management may be able to grant. But if the issue goes to arbitration, the arbitrator cannot grant a remedy that violates management rights.
44 Grievance Housekeeping/Administration Make a file for your use which contains all documents evidence notes, etc.Make a file for the grievant less any of your notes and opinions of the caseMake a file for the Union officeIf you plan to seek assistance from others make a file for them.
45 Getting help:When seeking advice or assistance the help you get will depend on the information you provide.Detailed, accurate information will facilitate giving good advice. Inaccurate, incomplete data will result in poor advice, and may cause the loss of the grievance, or considerable unnecessary work.
46 Where to get help.FSC Vice-President for Region, Research, or Job Corps.FSC Grievance Committee.Melissa Baumann, mbaumann,NFFE Business Representative. (www.nffe.org)NFFE National Office. (Only Local president or designee should call NFFE National.)
47 Key Points to Remember.When did the incident giving rise to the complaint occur? (Time limit.)Who was involved in the incident? Witnesses?Where did the incident occur?What makes the incident a grievance and not another kind of complaint?Why did the incident occur?Is the grievance likely to be sustained?(Or sustained through arbitration?)What is the remedy sought?Is there anything you can do to help the grievant personally deal with the problem?
48 Specific knowledge required to effectively process grievances. 5 USC Chapter 71, (Federal Service Labor-Management relations (statute).Collective Bargaining Agreement (CBA).Pertinent Agency Regulations.Local Agreements/MOUs.Complaint Handling.
49 Knowledge Required, cont. General knowledge of:Title 5 United States Code (5 USC).5 Code of Federal Regulations (5 CFR).Regulations of the MSPB, FLRA, EEOC.
50 Grievance TimelinesTimelines for filing and responding to grievances are different depending upon where you are in the process.DOUBLE CHECK (MA Article 9.6) when your next step is due.A missed timeline by the Union or employee means the grievance is dead.
51 The grievance is dead:unless there are mitigating circumstances (emergency situations such as, an office fire or flood, terrorism, heart attack, etc.).But, if the instance continues or can be recreated, you can start over.(For example, if PD accuracy is being grieved, the process can be started anew.)
52 “Informal grievances” Can be a part of a NGP, BUT do not exist in the FS Master Agreement.If you talk to mgmt. about a grievable issue (“informal grievance” to some) the clock is still ticking and you are in peril of violating time limits to file.It’s good to talk, but always be mindful of time limits; file the grievance & talk, or request extensions, if necessary!
53 Time limit for filing a grievance. Step 1. Grievance must be filed within 30 days of the occurrence of the matter being grieved, or within 30 days after first becoming aware of the matter.For adverse actions, grievances must be filed within 30 days of receiving the Agency decision. (Note that MSPB filing deadline is 30 days from effective date of action.)
54 Time Limits. Step One Grievance 30 Days. Educate your BU!!! Advice: Never go to the brink on any time limit at any step.If you miscalculate, or make a mistake, YOU LOSE.File well in advance of your deadline, or request an extension to file.
55 What happens when Mgmt misses a time limit? If the complaint goes to arbitration, the FS has to pay arbitrator costs.(Normally, loser pays in arbitration.)(If there were equity, a time limit violation by mgmt would result in an automatic win for the grievant.)
56 Time Limit Extensions (Article 9.9) Union or management may request an extension to file or respond.Request must include the reason why the extension is needed.If the requesting party gives a reason, the responding party must grant at least 7 days.An extension may be requested even before the filing of the 1st step.When an information request is made, the time limits will be extended equal to the amount of time required to receive the information. (Document it, copy mgmt.)
57 Continued: Time limit extension request: - The request must be made in writing.( and electronic documents are fine – but, copy yourself and save to verify date sent.)- Send the request to the agency official who would receive the grievance.- Get extensions in writing.- If denied, get it in writing.
58 An example of a time limit extension request: “The Union is requesting a three week extension to file a Step Two Grievance on behalf of Smokey Bear who is grieving an untimely Performance Evaluation. The reason for this request is that the Steward who is handling this matter is on an emergency fire detail and is unavailable. If granted, the new deadline will become October 31, 2003.”Other reasons:Busy with critical agency work. Attending training on RIF. Union officer has surgery scheduled. Time needed to evaluate the resolution offered in the Step One Response. The dog ate the grievance file.Why grieve this? Employee is applying for another job at no Performance appraisal looks bad.
59 What is a day? “Day” means day, not “work day.” Weekends and holidays are “days.”If a grievance falls due on a non-work day, by practice, the deadline becomes the following work day.Advice: If a time limit falls on a non- work day, avoid any possible problems: get it in earlier, or get an extension.
60 Representational Rights Union has the right to be present at all discussions and grievance processing meetings between Management and bargaining unit employees, even if the Union is not representing the employees.If management talks to the employee without notifying the Union, file a ULP.Union has right to choose its own representatives. Do not let management or a BUE select who they want present.Union has a right to be present even if the EMPLOYEE doesn’t want you. You are representing the bargaining unit in the grievance resolution meeting.
61 Management response to 1st step Hopefully, an agreement to participate in ADR -- Union shall be present to actively participate. Clock does not stop.If the receiving official cannot grant resolution, (s)he should forward to next higher level AND inform the Union.Response due in 21 days* unless an extension is granted. Response must inform the Union of who the Step 2 deciding official is *3 Day Rule may apply.
62 The “Three Day Rule”. MA Art. 9.9 “In the event that the grievance is mailed or sent by Electronic Communications, the receipt date shall be the date of mailing plus 3 days.”
63 Second step grievanceMust be filed with the next higher level within 21 days of receiving 1st step response from management. (May request extensions.)Include first step grievance, supporting documents, and management response.Specify any unresolved issues.Add any new, pertinent information.It is possible to change the requested resolution.Request to meet with the responding official.Request ADR.If first step was filed with Station Director or RF, the next step is filed with the Deputy Chief for Operations (Clyde Thompson’s position)
64 Management response to 2nd step. Hopefully an agreement to participate in ADR.If receiving official cannot grant resolution, (s)he should forward to next higher level AND inform the Union.Response due in 21 days, unless an extension is requested. Response must inform the Union who is the Step 3 deciding official.
65 Third step grievance.Due within 21 days of receiving the 2nd step grievance response.Last step before going to arbitrationSpecify any unresolved issues.Add any new, pertinent information.Include first and second step grievances, supporting documents, and responses.Can change the requested resolution.Request to meet with the responding official.Request ADR.Be sure in the third step the resolution is something that can be granted if you go to arbitration. If you are still asking for something that would violate management rights, the arbitrator can’t grant it.
66 Management response to 3rd step. Hopefully an agreement to participate in ADR.If receiving official cannot grant resolution, (s)he should forward to next higher level AND inform the Union.Response due in 30 days unless an extension is granted. Response must inform the Union of its right to go to arbitration.
67 After the 3rd Step.Union and Management may agree to ADR within 15 days of 3rd step response. If issue is not resolved through ADR, the Union has 15 days from end of ADR to invoke arbitration.If parties do not agree to ADR, Union has 30 days from date of receiving 3rd step response to invoke arbitration.Union must make decision to go to arbitration. (Employees may not invoke arbitration on their own.)
68 Arbitration. Decision to go to arbitration should be based on: Merits of the case,Effect on the Local/Council,Availability of funds,Cost versus benefit.Decision CANNOT be based on Union membership. (“Duty of Fair Representation”)Decision about whether the case can be presented entirely through written arguments.
69 Evidence Standards Disciplinary and adverse actions Preponderance of evidence (51%):“The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” ( (c)(2) 5 CFR)“A standard of proof which is met when a party’s evidence on a fact indicates that it is “more likely than not” that the fact is as the party alleges it to be.” (Black’s Law, Fifth Edition)
70 Evidence Standards Unsatisfactory performance actions Substantial evidence:“The degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” ( (c)(1) 5 CFR)“Such evidence that a reasonable mind might accept as adequate to support a conclusion.” (Black’s Law, Fifth Edition)
71 Paperwork for Arbitration. Only the Local President or FSC President may invoke arbitration.Within 7 days of invoking arbitration, submit request for panel to the FMCS or AAA, requesting a list of 7 arbitrators.(Often, a copy of the form is given to management at same time as the letter invoking arbitration.)Upon receipt of the list, contact NFFE National for a ranking of the arbitrators.Expedited arbitration per MA 10.8(a) is not necessarily the same as the FMCS expedited process. FS Expedited process simply indicates that written arguments instead of an in-person hearing will be used. FMCS process includes a rapid response on getting arbitrators list, holding the hearing, and the final arbitrator’s decision.
72 Paperwork for Arbitration cont’d. Selection of arbitrator shall be done within 15 days of receiving the list.Contact management to arrange a date and time for selecting the arbitrator.Select arbitrator with management.If management does not respond or refuses to participate, Union picks arbitrator.Return form to FMCS marking “The parties have mutually selected arbitrator’s name …”If grievant is paying part of costs, get signed agreement and money (in escrow acct.).
73 The Grievance Process for Management is different. What you need to know & do:- Very few grievances are filed by the FS.- Read Art. 9.7! The time limit for the Local to respond to a Step 1 Grievance is: 1) meet within 7 days; 2) if not resolved, respond in writing within 14 days.-Immediately call your Council VP if you get a management grievance.
74 Tips on Grievance Handling Consider negotiations instead of grieving.Consider not filing when an employee is unwilling to do so.Be a good winner.Let the grievant know if you share information with others.Get grievance resolutions as written MOUs.And a couple more…
75 Consider negotiations instead of grieving. Negotiations usually are less adversarial – especially in “partnerships”.Impasses must go to mediation.If you have to go to a third party for a decision, an arbitration loss may be expensive ($1,500 - $3,000+), but the Federal Services Impasse Panel is free.
76 Consider not filing when an employee is unwilling to do so. Uncooperative employee may doom your case.You may create hard feelings and lose a member or potential member (or more!)Even though grieving is a “protected activity” you may subject an unwilling and vulnerable grievant to reprisals.
77 Should you ever file over an grievant’s objections? Yes!- When safety and/or health are at stake and the NGP is the best route.- When there are significant effects on others in the Bargaining Unit and a greater harm might result by doing nothing.- Others: circumstances should be evaluated on a case-by-case basis.
78 Be a good winner. Don’t “corner” management! The supervisor/manager/HR specialist that you trash today may well be the person you will be dealing with tomorrow.But, do let Union Members (& BU) know what you have accomplished (with diplomacy and confidentiality).
79 Let the grievant know if you share information with others. Many times the grievant is embarrassed about the situation, or fears reprisal, so maintain confidentiality; explain grievance processing in your Local will involve others.Locals should have their Grievance Committees (Executive Boards) review and strategize all grievances.GC/EB discussions must not leave the room.
80 Be sure grievances are of substance. Do not file frivolous grievances.Discount management’s advice“to pick your battles”.If mgmt believes the grievance is trivial and admonishes you to drop it, turn the table and state, “if you think this issue is so insignificant, then surely mgmt can grant the resolution requested.”
81 Not all grievances should be taken to arbitration. A decision to arbitrate should be based on:- merits of the case;- affect on the Local/Council;- availability of funds;- cost versus benefit.A decision not to arbitrate must never be based on Union membership.
82 For incidents of physical and/or sexual assault: Report the incident to the police.While assaults are to be reported to management, just because the incident occurs at work, it does not make the perpetrator immune from arrest and prosecution.Use the “if-it-happened-on-the-street- what-would-I-do” standard for reporting.
83 Get grievance resolutions as written MOUs. The FLRA refused to enforce compliance with a grievance resolution because they said that it was a unilateral offer by management and did not constitute a labor-mgmt agreement.Get grievance resolutions in writing, in the form of MOUs, signed by all parties.
84 MEMORANDUM OF UNDERSTANDING BETWEEN THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FD-1, IAMAW,LOCAL XXX AND THEUNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE This memorandum of understanding (“MOU”) is made by and between the National Federation of Federal Employees, Local XXX (hereinafter “NFFE” or “Union”) and the United States Department of Agriculture, Forest Service (“USDA, FS” or “Agency”) regarding the resolution of grievance filed on behalf of (insert grievant’s name) which concerns (insert nature of grievance).Section 1: Within _______ (specify time period) from the date of this MOU, the Agency shall (specifically list all Agency actions to be completed).Section 2: Upon completion/execution of Section 1, NFFE shall withdraw the grievance filed on behalf of (insert grievant’s name). (OR if the agreed upon actions still leave remaining issues to which the parties disagree, state the following: The parties agree that the issue of ________________ shall be elevated to the next step pursuant to Article 9 of the parties’ collective bargaining agreement.)Section 3: Failure to perform any of the terms of this agreement constitutes a repudiation of this MOU.Section 4: This constitutes the complete understanding between the parties. No other terms or conditions have been agreed to by NFFE and the Agency.Section 5: This agreement may only be reopened or amended upon mutual agreement of the parties.FOR NFFE: FOR USDA Forest Service:________________________________ ______________________________Name Name