  Internal to FS › Pre-grievances › › Grievances Before arbitration External procedures › EEO cases › › Unfair Labor Practice charges MSPB Cases

  New MA provides that a settlement agreement be signed, even if management responds to the grievance granting all that was requested in the grievance.

Simply take the grievance response and put it into settlement format.

 Never settle mentality › Takes a lot of time and effort › › › Can end up with nothing Winners and losers Even if you win, can be hard to get implementation  Always settle mentality › Helps maintain relationship › › › More control over the outcome Better implementation May get less than what would be obtained in a formal process

    Evaluate the case Clearly outline the worst case scenario › Arbitration $5,000 to $6,000 and may take a year from initial grievance to arb decision.

› › EEO cases can take years (and years) MSPB cases take about a year Clearly outline the best case scenario Evaluate what is being offered in the settlement.

› Does it resolve the major issues?

     Settlements are contracts Agreements must be voluntary Parties must have the authority to sign the settlement Settlements must be in writing Agreement must be signed

   A settlement is a contract between the Agency, an employee and/or the Union.

Employee or Union agrees to withdraw a complaint in exchange for consideration from the Agency.

Legally binding on the parties.

   Employee/union must receive something of value from the Agency in exchange for withdrawing their complaint.

› Promising “dignity and respect” is not adequate consideration. (Drake v. U.S. Postal Service. 105 LRP 42345, EEOC decision) › A promise to do something, if higher level agrees was not adequate consideration (104 FEOR 190, EEOC decision) Employee generally cannot get more in the settlement than what they would get in a formal proceeding.

However, settlement may give them something DIFFERENT, if the value is equal to or less than what they could get at hearing.

  Mental capacity to settle › Be able to understand the agreement › Understand the ramifications of the agreement › EEOC has found that a settlement made when an employee was suffering significant anxiety symptoms and withdrawal from medications was not a valid settlement. No coercion or duress › › Very hard to prove “Economic” duress is not adequate to claim duress

  Agency official must have the authority to sign the agreement Be sure when working on the settlement that you are working with someone who has the authority to bind the Agency. › FSM 6100, Zero code has the personnel delegations (Table 6104.1, Exhibit 01).

› Ask management to provide a copy of their written delegation authority. For grievances, you should already have been notified who the deciding official is.

Delegated Decision Authority Appeals, Grievances, Complaints

1.

Reconsideration of WGI denials. 2.

Administrative Grievance Procedure a.

Informal.

b.

Formal.

1) Proposed disposition.

2) Final Decision.

3) Decision on appeal of final Forest Service decision. 3.

Settlement Authority a.

Up to $5,000 compensation.

b.

Over $5000 in compensation.

X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X T X X X X

      What’s the issue being settled?

What will the Agency do? When?

What will the Union do? When?

What will the employee do? When?

What happens if the agreement isn’t followed? When?

Optional › › › Is this agreement confidential?

Waiver of future action?

Does the settlement have a sunset date?

 This settlement agreement is made between Suzy Smith, the Kootenai National Forest, and NFFE Local 1398 to the issues related to Suzy Smith’s grievance related to work schedules filed on April 2, 2010.

   The Agency will: › › › Permit Suzy Smith flex her arrival and departure times within the hours of 5 am to 10 pm.

Permit Suzy Smith to earn credit hours at her election.

Reinstate 5 hours of annual leave that Suzy was required to use on March 17 and March 24, 2010.

The Union will: › Withdraw the grievance dated April 2, 2010.

Suzy Smith will: › Notify her supervisor on days when she intends to earn credit hours, including the approximate amount of time and the work that she will perform.

  Normally, this is written from the grievant’s or appellant’s perspective. If either party believes that another party has failed to comply with the terms of this Agreement, the party may: › › File complaint regarding the failure to abide by the settlement agreement OR Reinstate the original complaint at the point where it was settled.

   Sunset Clause › There are some situations where a sunset clause is appropriate. › In others, the actions are a one time instance and no sunset is appropriate.

Confidentiality › What can and can’t be released and under what circumstances.

Future actions › Be very careful not to write this too broadly. Should stated that the employee/union won’t file complaint ON THE SAME INSTANCE OF THE SAME ISSUE

     Paying liquidated or punitive damages.

Paying compensatory damages for an age discrimination case.

Paying more back pay than allowed by the Back Pay Act. Punishment for another employee or supervisor Other illegal remedies

 Not being specific enough › › › › › › Statements that grant the employee a clean record. Requirements that all negative documents in the complainant's employment file be destroyed.

What constitutes a neutral reference to other organizations who may consider hiring the employee. When the agreement is effective (not “the first pay period' or the 'second week in April”) Priority consideration – what does it mean?

Clarity on what rights the employee is waiving with respect to future

     If settlement is not followed, take action as soon as you are aware of the problem.

Reinstate the grievance File new grievance over violation of the settlement agreement.

File enforcement action with MSPB or EEOC.

Watch the timelines.

 Settle Steven Employee’s grievance in accordance with Article 9 of the Master Agreement.