I don’t work here…

1. I don’t work here… …I’m a consultant.

2. GrievancesReno Training October 2003 John R. Obst Vice President NFFE Melissa Baumann VP Forest Service Council John Paolino Secretary-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 not rest with management. NGP/Arbitration addresses what’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 7121the 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 the Bargaining Unit. • The Union. • The Agency.

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.

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; or • any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.

18. What isnotgrievable?(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.

19. What isnotgrievable?(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.

20. What isnotgrievable? • 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 new A-76 Circular will test existing case law.

23. I WANT TO FILEA GRIEVANCE!!

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 allfacts. • Visit the site, if necessary. • Check past practices and similar cases and their disposition. • Take Notes.

29. 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.

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 of the 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 burden of proof rests with the employer. When the employee is making the allegation, the burden of proof rests with the employee.

32. 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.

33. Evaluation Cont’d • Reach a preliminary decision on the merits of the case; consider any other factors. • Seek advice and assistance, if necessary.

34. Decision TimeIf 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”.

38. 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”).

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 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. E-mail to official and cc yourself. SAVE.

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).

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 case • Make a file for the Union office • If 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, 608-231-9278 • 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 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.