Transcript Negotiated Grievance Process - NFFE Forest Service Council

I don’t work here…
…I’m a consultant.
Grievances
Reno Training October 2003
John R. Obst
Vice President NFFE
Melissa Baumann
VP Forest Service Council
John Paolino
Secretary-Treasurer NFFE
It is a given that disputes
will arise among people.
• Workplace conflicts WILL happen!
• There are many ways to address and
resolve workplace disputes.
But the Route for Resolving
Workplace Disputes is:
The Grievance Procedure.
Master Agreement Article 9
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.
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 not
rest with management.
NGP/Arbitration addresses
what’s right, not who’s right.
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.)
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.)
According to Title 5 U.S. Code 7121
the NGP must be:
• Fair and simple.
• Provide for expeditious
processing.
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.
Who can file (NGP) grievances?
• An employee in the
Bargaining Unit.
• The Union.
• The Agency.
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.
Who may represent the Agency?
•
•
•
•
•
Supervisor or Manager.
HR Specialist.
Labor Relations Officer.
Attorney.
Other designated officials.
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.
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.
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
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;
or
– any claimed violation, misinterpretation, or
misapplication of any law, rule, or regulation
affecting conditions of employment.
What is not grievable?
(MA Article 9.3)
– Hatch Act violations.
– Retirement, life or health insurance.
– Suspension or removal for national
security reasons.
– Any examination, or certification,
administered by OPM.
– Appointments.
Generally, these issues may be addressed
through other complaint processes.
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 addressed
through other complaint processes.
What is not grievable?
• Contracting out (mgmt. right).
• Compliance with the A-76
Process (?).
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).]
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 new
A-76 Circular will test existing case law.
I WANT TO FILE
A GRIEVANCE!!
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.
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.
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.
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.
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.
Investigative techniques
– Stop talking – you cannot listen well
while 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.
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 of
the case.
– Consider if this is the proper forum (NGP,
MSPB, EEOC, OWCP, negotiations, Other?).
– Develop possible solutions.
Evaluation Cont’d
NOTE:
When an employee is the recipient of a
disciplinary or adverse action, the burden
of proof rests with the employer.
When the employee is making the
allegation, the burden of proof rests with
the employee.
Evaluation Cont’d
• If, 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.
Evaluation Cont’d
– Reach a preliminary decision on the
merits of the case; consider any other
factors.
– Seek advice and assistance, if
necessary.
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.
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.
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.)
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”.
Grievance specifics, first step
• Clearly state:
– What the issue is
• Violation of law or policy;
• Violation of Master Agreement;
• Complaint about a condition of employment;
• Violation of a past practice.
– The facts in the case
• who did what;
• when;
• where.
– The requested remedy (along with statement
such as “or other appropriate resolution”).
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).
Grievance specifics, first step
(cont’d)
• File with proper official
– For specific employee complaint other than
adverse action: First line officer
– For 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. Email to official and cc yourself. SAVE.
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.”
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).
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).
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 case
– Make a file for the Union office
– If you plan to seek assistance from others
make a file for them.
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.
Where to get help.
– FSC Vice-President for Region, Research, or
Job Corps.
– FSC Grievance Committee.
• Melissa Baumann, mbaumann, 608-231-9278
– NFFE Business Representative.
(www.nffe.org)
– NFFE National Office. (Only Local president or
designee should call NFFE National.)
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?
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.
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.
Grievance Timelines
• Timelines 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.
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.)
“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!
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.)
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.
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.)
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.)
Continued:
Time limit extension request:
- The request must be made in writing.
(E-mail 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.
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.”
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 nonwork day, avoid any possible problems:
get it in earlier, or get an extension.
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.
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.
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.”
Second step grievance
• Must 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.
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.
Third step grievance.
• Due within 21 days of receiving the 2nd step
grievance response.
• Last step before going to arbitration
• Specify 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.
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.
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.)
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.
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.” (1201.56(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)
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.”
(1201.56(c)(1) 5 CFR)
– “Such evidence that a reasonable mind might
accept as adequate to support a conclusion.”
(Black’s Law, Fifth Edition)
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.
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.).
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.
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…
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.
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.
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.
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).
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.
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.”
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.
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-streetwhat-would-I-do” standard for
reporting.
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.
MEMORANDUM OF UNDERSTANDING
BETWEEN THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FD-1, IAMAW,
LOCAL XXX AND THE
UNITED 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