Grievance Handling FDIC Track Instructor’s Guide This class is designed for a steward who has not filed a grievance, or perhaps only been involved in a few cases, and also for the steward who wants to revisit the process and refresh skills. Along with this Instructor Guide, there is a PowerPoint presentation that can be used to guide the discussion through the highlights of the class. You may prefer to teach only from the PowerPoint presentation, though the slides assume the Instructor is familiar with this Instructor Guide. The note “PP” in these materials indicates there is a specific PowerPoint slide for reference here. Comments and suggestions for the process of delivering the class have been kept to a minimum, to allow each instructor to apply his or her own style. Instructors are encouraged to thoroughly review the material in advance, and to use the PowerPoint presentation. All instructor-specific comments are in italics. The entire Participant’s Guide also is included here in its entirety. Opening Begin by introducing yourself. Then ask some questions of the class to gain a sense of their experience and their questions. Suggested questions include: How many have been a steward for at least: 3 months? 6 months? 1 year or longer? How many have actually filed a grievance? How many have attended and/or handled a grievance meeting? How many have participated in or observed an arbitration hearing? To determine the expectations of the participants, ask what they hope to learn from the class. Note answers or post them to a flip chart. At the end of your class, you should revisit these to determine that you have met their reasonable expectations of the class. Overview This class is designed to give you a step-by-step approach to grievance processing, which is governed by Article 47 of the NTEU FDIC contract. We will review and discuss what a grievance is, and what it is not. We will discuss the elements of a grievance, how to write a grievance and how to process a grievance. The class also covers settlement issues, case files and arbitration. A number of checklists, sample forms and other tools are included for your future reference. Objectives State the class objectives (PP). By the end of this class you will understand the basics of: - identifying a grievance - investigating a grievance - collecting information - analyzing a situation - writing a grievance - presenting a grievance - forwarding a case to be considered for arbitration What is a Grievance? Statutory Definition Ask the class what is covered by the term “grievance”? Go around the room to elicit several answers. Discuss the answers, and then compare their responses to the definition found at 5 USC Section 7103 (a) (9). (PP) 5 USC § 7103(a)(9) and Article 47 Section 1A provide that a ―grievance‖ means any complaint: (A) by any employee concerning any matter relating to the employment of the employee; (B) by any labor organization concerning any matter relating to the employment of any employee; or (C) by any employee, labor organization, or agency concerning--- (i) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or (ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment; Past Practices The law recognizes that grievances also may seek to enforce ―past practices‖ between the union and management. Review the definition of a past practice with the class because it’s relevant to the case problem (PP): What is meant by a ―past practice?‖ How do you define it? A practice becomes enforceable if it: affects the working conditions of bargaining unit employees; has been consistently exercised; over an extended period of time; with the knowledge of the agency; and with the agency’s expressed or implied consent For research and reference, an instructor might review DOL and AFGE, 38 FLRA 899 (1990). Time permitting, engage the class in a discussion of the value of past practices. Some points for discussion include: practices can address matters not spelled out in the contract. they can indicate the parties’ interpretation of ambiguous contract language. practices require bargaining to change. a breach is a grievable matter. Exclusions Section 7121 of the CSRA excludes certain issues from coverage by any negotiated grievance procedure (PP): - prohibited political activities. - retirement, life insurance and health insurance. - suspension or removal for national security reasons. - examination, certification or appointment - the classification of any position which does not result in the reduction in pay or grade of the employee. Furthermore, the parties to a federal sector labor agreement may agree to exclude any matter from coverage of the negotiated grievance procedure. For example, Article 47, Section 2 excludes filing supervisory positions, preliminary warnings such as a proposal letter in an adverse action, separations of probations, and RIF appeals. PRACTICE POINT: Our grievance procedure covers ULPs, discrimination complaints, adverse actions, or actions based on unacceptable performance, FDIC employees may use either the negotiated grievance procedure or the statutory appeals process (i.e. FLRA, EEOC or MSPB), but not both. The process through which you file first is the process you must stick with. See Article 47 Section 1, C & D. If warranted, summarize again the basic points regarding violations covered by the grievance procedure. (PP) Now that we know what is and is not covered by a negotiated grievance procedure, turn to the next page for a ―Spot Check Exercise‖ to test what you’ve learned so far. SPOT CHECK EXERCISE – Identifying Grievances Use the following checklists, which summarize the matters covered or excluded from the grievance procedure, to answer the questions on the next page. Is it a Grievance? - An NTEU Checklist An incident is covered by the grievance procedure if the employee is in the bargaining unit and you can answer "Yes" to any of the following: ____ Does it concern any matter relating to the employment of the employee whether filed by the employee or the union on behalf of the employee? ____ Does it concern the effect or interpretation, or a claim of breach of a collective bargaining agreement? ____ Does it concern any claimed violation, misinterpretation or misapplication of any law, rule, or regulation affecting conditions of employment? This includes past practice violations. The incident is NOT a grievance if you can answer “Yes” to any of these questions: ____ Does it involve prohibited political activities? ____ Does it involve a claim for retirement, life insurance, and health insurance? ____ Does it involve a suspension or removal for national security reasons? ____ Does it involve any examination, certification or appointment? ____ Does it involve the classification of any position which does not result in the reduction in pay or grade of the employee? ____ Does the labor agreement exclude this matter from the grievance procedure? SPOT CHECK EXERCISE – Identifying Grievances Below are listed several situations where a grievance may or may not be filed. Read each and decide whether a grievance is appropriate using the NTEU CHECKLISTS. As you decide, cite the portion of the checklist that applies. 1. An employee comes to you to complain that her manager has been sexually harassing her. The EEO counselor she consulted told her it would take years to get a hearing. She wants to know if the union can do anything now. Is it a grievance? Why or why not? 2. An employee wants to grieve a denial of her request for part-time employment. Can he file a grievance? Why or why not? Yes. See Article 41 3. An employee complains that FDIC has denied her claim for mileage and other travel costs. She wants the union to do something. Does she have a grievance? Why or why not? Yes. See Article 47, Section 2E 4. An employee tells you that he submitted a statement from his doctor to support a request for leave under the Family and Medical Leave Act, but his manager said the request was not approved. Can he grieve the denial of FMLA leave? Yes. 5. An employee reports that she has been working a lot of overtime lately, but she believes that she is getting paid at the wrong rate, and she should be earning one-and-a-half times her salary. Assuming you determine that she has been underpaid, does she have a grievance? Why or why not? The Role of Grievances Why do we file grievances? A grievance accomplishes different things for different people. (PP) For Employees: It helps them enforce rights under the agreement. It allows them to get information to determine how decisions were made. It is a way to empower them in the workplace. It allows for the peaceful and orderly resolution of disputes affecting their work lives. It ensures fair and uniform treatment. It can effect change. For NTEU: (PP) It is a low cost way to enforce negotiated rights. It brings attention to workplace problems. It protects an employee’s claim while we seek resolution through other means. It highlights weaknesses in the agreement that we need to focus on when we re-negotiate. It can help expand contract rights, and give meaning to contract language. It can establish precedent that prevents future disputes. For Management: (PP) It is a low cost way to resolve disputes. It highlights problem managers. It can help the Agency improve working conditions, and relationships with employees. For You, the Steward: (PP) It enables you to help the employees you represent. It helps you learn about the workplace. It brings problems to your attention. It empowers you to deal with managers. It allows you to help build the Chapter. Before you leave this, ask the group for examples of some of these. The Elements of a Grievance Every grievance must contain certain elements to be complete. Regardless of the subject matter, every grievance should under Article 47, Section 5, A.3: Indentify the Grievant Identify the problem or situation being grieved Cite the section of the contract, law or regulation, or the practice, that has been violated Request a remedy The time frame for filing a written grievance is twenty (20) working days from the date of the action giving rise to the grievance or twenty (20) working days after the employee becomes aware of the action. Grievance Drafting Review the following tips with the class as time permits. If time is short, point out this section to the class, and suggest they refer back to it during the grievance exercise, and/or when drafting an actual grievance. Tips While every grievance should address the three basic elements described above, how the grievance is written is largely a matter of style. There is an optional grievance form at Appendix C of the contract which is contained in these materials. NTEU provides a recommended form for grievances that is included in the back of these materials (a copy is also available in the NTEU Chapter Manual, Chapter 5). In addition, the following tips will help you draft good grievances: 1. Do not write it so specifically or narrowly that you exclude other events and information that might come to light as the grievance progresses. For example, rather than describe the nature of the grievance as ―The employee was harmed by the ARD’s decision to deny the request for FMLA,‖ state: ―The employee was harmed by the improper denial.‖ Leave the details for the meeting. 2. Cite all possibly related portions of the contract. Also mention any related laws, rules and regulations. 3. Make sure that you have all the harmed employees covered if it is chapter policy to include those who did not approach the union for help: This would be a grievance ―By the union on behalf of all affected employees.‖ 4. Make the request for a remedy very broad and always add the language ―And any other remedy deemed appropriate.‖ Unless you follow these two rules you may wind up limiting an arbitrator’s power to impose all the remedies he/she wants. 5. Avoid statements of anger or accusations that will only get in the way of the formal processing of the grievance. Save these for meetings if they must be made. Application Read the following scenario and then answer the questions and be prepared to discuss with the class. Note, at this point, we are only looking for a group discussion about how to apply the elements of the grievance to this factual situation. Actually practicing the written statements will come later, as the case is developed. Two employees, Angela and Robert, have come to you to complain that they were not given the chance to work overtime last weekend. They learned about the overtime work when they showed up at the office on Monday as usual and heard that several other employees in their group had spent Saturday working on a special project. Angela and Robert talked to their manager, who said the group received the project assignment, with a very short deadline, late last week. The manager said she personally approached and invited qualified employees to work the overtime project until she had the four volunteers needed to complete the job. The manager claims she asked qualified employees in order of FDIC seniority, but she never got to Angela and Robert because more senior qualified employees volunteered. She claims that neither Angela nor Robert were qualified because they were each given counseling memos last January for taking long lunches together on three (3) separate occasions. Angela and Robert dispute that other employees are more qualified and that other employees have been charged AWOL and still worked overtime, Angela and Robert have worked for the FDIC longer than most employees in the group. And, they say they both would have been available and interested in working the overtime if it had been offered to them. They report that several similar projects have been assigned to the group in the last few years and they were always given the chance to do the work. They want to file a grievance over the lost overtime. Before you conclude the initial meeting with Robert and Angela, you consult the contract and find the following language: Article 29 Overtime of Compensatory Time Section 3 Except in those cases where overtime is required to be worked by a specific individual (e.g., completion of a legal brief), the following procedures will apply: A. When overtime is required, the EMPLOYER will first seek qualified volunteers from the work unit where the work assignment will be completed. B. If the method described in Subsection A. of this Section does not provide sufficient volunteers, the EMPLOYER will compile a list of all employees qualified to perform the overtime assignment. Involuntary overtime assignments will be made on a rotational basis starting with the employee with the least amount of FDIC seniority. C. Voluntary overtime assignments will be made on a rotational basis amongst qualified employees starting with the employee with the most amount of FDIC seniority. Where the nature of a particular task does not lend itself to distribution of overtime among qualified employees in accordance with this Subsection, the EMPLOYER will attempt to accomplish equitable distribution over an expanded period of time consistent with the EMPLOYER’s workload, staffing or mission requirements. D. An employee will, upon request, be released from an overtime assignment if a fully-qualified replacement is available and willing to work. However, if granting such a release would result in a severe disruption of existing work assignments, and/or significant increase in costs to the EMPLOYER, the request may be denied. E. The EMPLOYER will make available to the UNION, upon request, current records of overtime assignments of employees to aid in resolving individual claims of unfair and inequitable distribution. F. When scheduling an overtime assignment, the EMPLOYER will provide an employee advance notification as soon as possible. Answer the questions below to the best of your ability, based on the information you have at this point. 1. What is being grieved? (PP) Angela and Robert are challenging the manager’s failure to provide them the opportunity to volunteer for the overtime assignment before other, less senior qualified employees. While a detailed class discussion is not necessary at this point, instructors should be aware that the law provides back pay for lost overtime when the Grievant shows she or he would have received the overtime compensation but for management’s violations. In other words, assuming they were qualified for the assignment, Angela and Robert have a valid challenge only if they would definitely have worked the overtime if invited. See, e.g., US Army, Aberdeen Proving Ground & IAM Local 2424, 19 FLRA 258 (1985). 2. What did management possibly violate? Depending on how the term “qualified” is interpreted, FDIC may have violated Article 29 of the contract. 3. What remedy will you request? The remedy for overtime violations is derived from the Back Pay Act. Where the Grievant can show she or he would have received the overtime pay, i.e. performed the overtime work, but for management’s violation of the contract, then the remedy is the amount of missed overtime pay. Note that some members of the class will be surprised to learn this, as they may wrongly believe the remedy is limited to priority for the next overtime assignment. The Steps in Grievance Processing (PP) The primary responsibility for investigating a grievance rests with the union representative handling the case. Whether the grievance is eventually won or lost is often determined by how thoroughly the representative investigated the complaint. The steps involved in the investigation process are described below. Each step is necessary to effectively process a case. 1. The Investigation 2. The Preparation 3. The Presentation The Investigation What do you think should be the first step in the investigation and why? Who would you interview and why? Besides interviewing the Grievant and any witnesses, what other steps should your investigation include? Make sure the class discusses the other important steps in investigating complaints (PP): - researching the contract, law and practices - gathering documentary evidence - analyzing the evidence - determining violations - developing arguments and theories Some Notes About Interviews (PP) Investigating a grievance often requires a steward to conduct interviews—of the Grievant, and other witnesses or individuals who might have information helpful to analyzing or resolving the dispute. Below are some tips to guide you when interviewing Grievants (or other witnesses): Let the Grievant tell his or her story. Be a good listener. Ask open-ended questions. Ask clarifying questions. Depending on the circumstances, the grievant could be emotionally upset and, therefore, factually unreliable. Distinguish between fact, fantasy, and opinion. Restate the complaint to the Grievant in summary form to ensure you fully understand. Ask the Grievant to correct any mistakes or misunderstandings. (PP) Obtain a complete description of the situation that generated the complaint: Who committed the alleged violation(s)? What exactly was the violation? Talk to each person - both in and out of the bargaining unit - who may have observed the incident or otherwise may have first hand knowledge of the situation. When did the violation occur? Obtain the date, time, and the relationship of the incident's occurrence with the employee's assigned working hours. For example, did the incident occur after work as opposed to during the workday? Where or how did the violation occur? Determine the location, the setting and the surrounding circumstances, e.g-, room or office number, one-on-one or in public, the relative position of all principal parties and witnesses, etc. Why or how did management take the action it did, thereby generating the alleged violation? Specifically ask whether management – or anyone else—has provided an explanation or report about the matter. How did the problem affect the Grievant? Was there any loss of pay or benefits, or other harm? If appropriate, determine the past practice controlling previous, similar incidents. Determine the Grievants’ requested remedy. Gathering Information Interviewing the Grievant and witnesses are key steps in investigating a grievance. But your investigation doesn’t end there. Frequently, a good investigation requires gathering documentary evidence directly from the agency. There are several ways that stewards can obtain information from agencies. The most common method is to submit a data request under the Civil Service Reform Act. Most collective bargaining agreements also have some provisions relating to information sharing, and other laws such as the Privacy Act and Freedom of Information Act (FOIA) can be useful, too. This portion of the class will focus on the most commonly used method of information- gathering. The NTEU Chapter Manual contains detailed guidance on this and other methods. It is advisable to consult with the chapter leadership and NFR before submitting requests under the Privacy Act or FOIA. Refer back to the scenario describing Angela and Robert’s complaint. List below the information you would like to request from the agency as you investigate this grievance (Note that Article 49, Section 3D provides that FDIC will make available current overtime records): Each class will bring out different ideas about the types of info to gather. At a minimum, the class should identify the following: Records, such as time sheets, showing the amount of overtime available on the date in dispute, and amount of time worked by Angela and Robert’s coworkers Dates of hire by the FDIC for each of the employees in the group, or at a minimum, for those employees who performed the work and for the Grievants (for comparison). Request information related to the Agency’s determinations of the qualifications, given the contract language. Another way to address this factor may be to request records demonstrating the kind of overtime work performed (i.e. samples of the work product itself, to show that Angela and Robert were qualified to do it) or for copies of counseling, AWOL, or discipline issued to employees who were selected to work overtime. Records related to the past “similar” overtime project assignments also may help support the grievance, if we can show a past practice of interpreting the contract’s qualified provisions in the Grievants’ favor. Earlier assignments of coworkers to similar work who may have leave or conduct issues also support the qualification element. Once the class has identified the info they will seek, turn to the next pages to review the standards related to information requests. Then the class will be asked to write a request for some of the items identified above. Keeper THE NTEU STEWARD'S ONE-PAGE GUIDE TO SECTION 7114 INFORMATION REQUESTS 1. This section of the Civil Service Reform Act and any language found in your collective bargaining contracts should be used far more often than any of the other authorities for accessing information. 2. The law gives access to "data," which includes documents that can be simply copied as well as lists or other materials that may have to be made up from existing files. You cannot be charged for this data. 3. There is a four part test to getting information under the law. First, the data must be Normally Maintained by the agency. It does not have to exist in the form you request it; the agency can be obligated to reformat for you so long as you are not unreasonable in you demand. Moreover, it does not have to be maintained in that office. If it is anywhere the agency can get it, you get it. 4. Second the data must be Reasonably Available. Your request can be burdensome, but it should not be excessive or extreme. You are obligated to modify your demand if the agency can give you what you need, but in a less burdensome format than you requested. 5. Third, the data you demand must be Necessary, not just useful, to the union’s representational work. This includes getting information to help you decide whether to file a grievance or invoke negotiations. You must be able to state a ―particularized need‖ for the information. (See next page for more details about this). 6. Fourth, the data must not consist of advice or guidance for managers on how to conduct their specific collective bargaining responsibilities. 7. If denied the information, you can ask your National Field Representative to file a ULP with the FLRA, you can file a ULP grievance citing a violation of Section 7114, add the issue to an existing grievance, or file a related request under the FOIA or Privacy Act. 8. If the data you request would result in an invasion of an employee’s privacy, you may have to get the data sanitized. If sanitized, request that the materials be coded so information relating to the same employees can be correlated (e.g., Any AWOL, counseling, reprimands, or discipline in the last two (2) years given to employees in the relevant work unit). NOTE: The Chapter Manual contains excellent guidance about information requests, including model requests, practice pointers, and cases you can cite when a dispute over the right to information arises. “Particularized Need” Statements (PP) When introducing this section, consider pointing out to the class that writing particularized need statements is a task with which even experienced stewards sometimes struggle, and that many stewards could benefit from an in-depth workshop on writing information requests. However, in the interests of time, the review in this class will be fairly basic, intended to provide an overview of the requirements and the opportunity to practice drafting a request. For most newer stewards, more practice will be needed to refine this skill. Remind the class that the Chapter Manual contains excellent guidance for information requests, and that they also can contact their chapter leadership and Field Office for help when needed. As discussed above, the union must establish a ―particularized need‖ for data it seeks under 5 USC Section 7114(b)(4). Every data request should include a statement to meet this requirement. To demonstrate the particularized need for data, explain three things in your request: 1. Specifically why the union needs the requested data; 2. How the union will use the data; and, 3. The connection between the intended use and the union’s representational responsibilities. Exactly how the particularized need statement is written is, to some degree, a matter of style. There are no magic words that will satisfy the above requirements. It is not uncommon for an agency to refuse to provide requested data because of an alleged failure to explain the particularized need for it. Oftentimes, a revised request with a new statement of particularized need, carefully crafted to demonstrate the above three elements, will resolve the dispute and force the agency to turn over the data. Consider the following example of a particularized need statement: Item requested: All materials used by the manager to determine the qualification to work overtime. Statement: The union needs this data to determine whether the agency met its contractual responsibility, as cited in Article 29 Section 3 of the parties’ National Agreement, to assign overtime to only qualified employees and any records to support why an employee was not qualified. The union will use the data to prepare arguments and evidence for the grievance challenging the appraisal. Your instructor will assign you an item of information to request relating to the overtime complaint. Write a particularized need statement to support your request for it. Assign the class one or two items they identified they would need to investigate the complaint. The instructor can decide whether to assign the same item to all participants, or one item to half the class, etc. If time allows, have the class work as individuals or in small groups, to maximize their individual opportunities to practice writing the need statements. Once the students have finished drafting their statements, call on a couple of participants and have the class review the statements they wrote up. Did they meet the requirements for articulating the particularized need? Researching the Standards In many cases, a steward’s job involves research to learn about the standards that apply to a grievance or dispute. For instance, a collective bargaining agreement may spell out the definitions of terms that are involved in a matter, or contain provisions that require the agency or the Grievant to take certain steps in a given situation. Besides the contract, legal decisions from arbitrators and judges often help a steward determine how a contract provision or law has been interpreted, and can provide insight into how to effectively present the arguments in a grievance. What other sources of information could a steward check, to determine the standards or rules relating to a matter? (PP) Sources to discuss with the class include: - Arbitration decisions, the NTEU Case Digest - MSPB, FLRA decisions - OPM.gov, but warn employees that OPM ultimately is a management-oriented agency, so while they can be a useful source of information on government-wide rules and personnel policies, their information should be viewed cautiously - Chapter Leadership, especially their knowledge of local practices and agreements, outcomes in similar grievances etc. - the NTEU Chapter Manual—this is a valuable under-utilized resource that contains substantive information about all kinds of matters a steward might handle - NTEU web site, for CP memos, MOUs, matters under negotiation at the national level, etc - Internal Agency materials, such as intranet sources, personnel/policy/procedural manuals and handbooks, etc. But like OPM materials, these items should be viewed with caution. Point out that these items often are useful for demonstrating that management is violating its own internal requirements or standards. What questions do you have in Angela and Robert’s case that would benefit from additional research? At this stage, you need only review with them their ideas. The “results” of their research will be shared with them later, so they can use that info to draft a statement of violation for the grievance. Hopefully the class will identify the following areas that are worth researching in this case: - contract provisions relating to qualification—besides the overtime article, are there other contract references that might shed light on how the parties expect qualification to be determined? - arbitration decisions on the NTEU Case Digest - how do Angela and Robert compare to other employees who may have leave, or conduct or performance issues? - did the manager actually approach the most senior qualified employees as she claimed? - were the manager’s actions consistent with the way that past similar overtime opportunities were handled? i.e. Were employees with conduct or performance issues assigned overtime? Preparation Once you have completed the investigation of the matter, the next step is to prepare the case. This might include drafting the grievance, or revising/amending it if it has already been filed. In any case, this stage requires the steward to analyze the matter and prepare the arguments and evidence for presentation. The first step in moving the grievance forward after the investigation stage is to analyze the case. Analyzing the Grievance (PP) After conducting interviews, obtaining information, and conducting factual and legal research, you are ready to analyze the grievance. Ask yourself whether you can prove the Agency violated the Contract, law, etc. What evidence do you have to support the grievance? Analyzing the Grievance entails the following steps: - Assess what needs to be proved to establish a violation • Is it a quantifiable or non-quantifiable standard? - Assess the evidence you have gathered, in light of what needs to be proved. - Is there more than one forum in which the issue can be raised? • Cases raising issues of discrimination can either be addressed through the grievance process or the EEO process. • Unfair labor practices can either be included in a grievance, or a charge can be filed with the Federal Labor Relations Authority through the NTEU Field Office. • Adverse actions can be challenged under the Contract through arbitration, appealed to the Merit Systems Protection Board, or through the EEO process. - Take an honest look at the strengths and weaknesses of your case. It may be useful to do this in written form, such as in an outline or chart. Look at the strengths of the agency’s case. In order to effectively analyze your case, you must have investigated the matter thoroughly, and you must be able to distinguish between fact and opinion or an assumption. Never proceed with a grievance based on assumptions! Practical Exercise: Drafting a Grievance To review, there are certain elements that must be included in every grievance: a description of the matter being grieved; citations to the law, rule, regulation, practice or contract provision that is allegedly violated; and the requested remedy. In addition to these essential elements, there are certain tips that will help you draft a good grievance, including to avoid writing the grievance so narrowly that you can’t be flexible when new twists develop, keeping the detailed argument out of the grievance and saving it for the presentation, avoiding accusations and emotional arguments, and filing timely with the correct official. Keeping these guidelines in mind, refer back to Angela and Robert’s complaint, and write a grievance for them on the following page. Before tackling the task, review the information below, which you developed through your investigation. The instructor can choose how to proceed with this exercise. If time permits, ask the participants work alone to draft a statement of the violation. Then assign small groups to draft the citations/violations and the requested remedy. Discuss the results as a group. Hopefully, they will recognize that some evidence exists to support the past practice Angela and Robert are citing to interpret the contract—that overtime has been distributed in order of Agency seniority to employees who had similar alleged “qualifications” problems. Further, the data supplied by the FDIC suggests Angela and Robert would have had priority for the overtime assignment based on their agency seniority, but for FDIC’s view they were not “qualified” due to the recent counseling memo. Additionally, Trish’s information suggests the manager not only deviated from the past practice of defining qualification, but also failed to meet the contract requirements to solicit volunteers, and for fair and equitable distribution, because there is no apparent reason for her inviting some employees and not others. Therefore, there appears to be a firm basis for the grievance. Notes of Interview with Angela Angela has worked for the FDIC for 13 years, and in this workgroup for the last eight years. She has no other prior government work experience. The last big change in the group occurred when the manager was promoted and her position back-filled by a new employee hired from outside the Agency. Angela recalls at least four occasions in the last year when overtime projects were assigned to their workgroup, often at the last minute, just like this one. She can’t be sure that they were all handled exactly the same, but she believes the manager usually asked for volunteers, then posted assignments on her office door. Angela worked all the past assignments. She recalls each overtime assignment required anywhere from three to six employees, and different employees showed up to work them. She did get the counseling memo in December and does not dispute she took long lunches with Robert on three (3) separate occasions. She put in an annual leave request which was approved and not charged AWOL. She said Robert did the same thing and his leave was approved. On the Saturday in question, Angela ran errands and attended a movie with a friend, but she would have volunteered to work overtime if she had known about it. Notes of Interview with Robert Robert has worked for the FDIC for 11 years, always for this workgroup. Before this job, he worked for another federal agency, for five years. He recalls numerous overtime assignments over the years similar to this one, and he has volunteered for them about half the time. He says on some occasions, the manager would informally ask for volunteers, but in the last year or so she has usually sent out an email invitation. The manager always posted the final assignments on her office door. He would have volunteered last Saturday if he had known about the project. He also received the counseling memo and claims since then there have not been any further issues. Notes of Interview with Trish, Coworker Trish agreed to meet with you and discuss the grievance. She is a member of Angela and Robert’s group, and she worked overtime last weekend. Trish believes she is the most senior employee in the group, because she has worked for the FDIC for over 14 years. She has always been invited for overtime assignments in the past, but her manager did not seek her out about this last one. Instead, Trish learned about it when she overheard two other coworkers talking about plans to work on Saturday. Trish asked her manager about the conversation she’d overheard, and was told that there was enough work for her, too, but no more employees. Trish stated she has never been counseled about her hours of work, but did receive a letter of reprimand in October of 2008 for failure to follow managerial directions for processing her work papers. Trish expected to see Angela on Saturday, because everyone knows that Angela always volunteers for overtime work. Trish was surprised when she showed up on Saturday and saw that Angela was not there. Information Obtained from the Agency Under 7114(b)(4) In answer to your requests, the Agency has provided the information contained in the following pages (note the information was provided in sanitized, coded form, to protect employee privacy while meeting the union’s needs): **************************** Overtime Assignments 1/27/08 The following employees have been selected to work overtime on Saturday, January 27: Robert Employee A Angela Employee B Employee C Please report promptly at 9:00 a.m. As previously stated, I estimate it will take about six hours to complete the project. ****************************** Overtime Assignments April 28, 2008 The following employees have been selected for overtime work on Saturday, April 28. Please report at 9:00 a.m. and plan on approximately six hours of work. Employee A Angela Employee B Employee D Employee E Employee F *************************** Overtime Assignments August 11, 2008 The following have been selected for overtime on Saturday, August 11, beginning at 10:00 a.m. and expected to take about six hours to complete: Robert Angela Employee C Employee D Employee F ***************************** Overtime Assignments December 8, 2008 The following employees are selected to work overtime for approximately six hours on December 8, beginning at 9:00 a.m.: Employee A Angela Employee B Employee F ********************************* Overtime Assignments May 2, 2009** The following employees are scheduled to work overtime on Saturday, May 2, beginning at 10:00 a.m. for approximately five hours: Employee A Employee B Employee D Employee F **Note: Date of assignment being grieved ********************************* Employee FDIC Hire Date Employee A 01/15/1995 Angela 02/22/1995 Employee B 03/10/1995 Robert 04/27/1997 Employee C 06/15/1998 Employee D 02/15/1999 Employee E 11/12/2000 Employee F 12/01/2001 In addition, the FDIC refused to provide any information concerning any AWOL, counseling or discipline issued to other employees in the group, citing privacy concerns. Trish gave you a copy of her reprimand issued in October 2008. In addition, Employee F, who was hired in December of 2008, and who worked the overtime in question, came to the Chapter President yesterday asking for assistance in delaying attendance at a mandatory training session scheduled in June because it conflicted with his son’s graduation. So if Trish (Employee A), since we know she worked for FDIC for 14 years) received a reprimand and Employee F is new and has not even been fully trained, FDIC’s determination of “qualified” is arbitrary and disparate. The information we received in the investigation about Trish and Employee F, even if not provided by FDIC can be used to support the grievance. Now turn to the next page and complete the portions of the Grievance form as directed by your Instructor. APPENDIX C OPTIONAL GRIEVANCE FORM Date Submitted _________________ 1. Employee’s Name____________________________________ 2. Employee’s Title______________________________________ 3. Employee’s Division/Office/Branch/Section__________________________________ 4. Employee’s Room Number and Telephone Number_____________________________ 5. Employee’s Representation: ______Self ______Union ______Other a. Name of Representative _________________________________________ b. Representative’s Address/Telephone Number________________________________ 6. Description of grievance (nature of event giving rise to the grievance, date it occurred, location, persons involved, etc.) 7. Article and Section of the Agreement alleged to have been violated, or appropriate law or regulation alleged to have been violated. 8. Adjustment (relief) desired. ___________________________ Employee’s Signature ________________________ ___________________________ Date Filed Representative’s Signature The Grievance Procedure (PP) Once you have studied the matter and feel confident that you will take the grievance forward, it is time to review the contractual grievance procedure. Every contract contains a grievance procedure, and it is critical to familiarize yourself with the details before filing, and throughout the process. Failure to adhere to required procedures can be grounds to dismiss a grievance, and dismissal for such errors can expose a chapter to DFR charges. Key procedural elements to be aware of include: Time limits for initiating the grievance. All contracts set a deadline to initiate a grievance. While there is value to pursuing an informal resolution without filing a formal grievance in some circumstances, never let the time to file a grievance pass without filing, or the grievant may be barred from proceeding if informal talks fail to resolve the matter. Remember, 20 work days to file a grievance at Step 1. Timelines for each step of the procedure. The FDIC agreement contains more than one step in the procedure, with the right to appeal to a higher management official when a matter is unresolved at a lower step. Stewards must carefully guard the timelines for appealing to a higher step. The time to appeal to Step 2 is ten (10) work days after receipt of the Step 1 decision. A copy of the original grievance and Step 1 denial must be attached. The time to appeal to Step 3 is also ten (10) work days after receipt of the Step 2 decision. A copy of the original grievance at the Step 1 and Step 2 denials must be attached. Step 4 with the Chairman of his/her designee is optional. Step 5 is arbitration. The Grievance Presentation (PP) Every steward has a unique style of presenting a grievance. There is no one method that is right for everyone or for every situation. Some stewards like to write out their presentation in advance, and read the prepared statement. Others make an outline or bullet list of key points to guide their presentation but let the words flow more spontaneously. Some stewards adopt a more confrontational attitude in their presentation, while others work to create an atmosphere of cooperation. You might find that you adapt your preferred style to fit the particular situation you are presenting. Here, the instructor may choose to engage the class in a conversation about style and demeanor in a grievance meeting. Emphasize the importance of professionalism, from being on time to keeping the tone respectful and unemotional. Other useful tips include supporting the Grievant, avoiding agreeing with management in a way that undermines the Grievant, and keeping “bluffing” to a minimum. Whatever style you choose, it is key to prepare for the presentation in advance. In addition to thinking about your tone and style, you will also benefit from the following steps: 1. Write or outline your presentation in advance. Do NOT try to wing it! 2. Prepare exhibits you will provide management in the meeting. Examples include documentary evidence such as witness statements or other material you have developed during the investigation, or case decisions you are citing to support the outcome you seek. 3. Prepare the Grievant for each meeting. Let the Grievant know what they can expect to occur, and make sure you both are clear on who does the talking. If the Grievant will make any statement, agree on the content and timing up front. Many potential problems can be avoided by good communication with the Grievant in advance of the meeting. 4. Know your role and your goals. Have a plan for the meeting, including not only what you will present, but what you hope to gain from the meeting. Are you sincerely trying to reach a resolution in the meeting? Or just laying the groundwork for future appeals? Do you want to engage the management official in conversation, or require them to listen only to your presentation? PRACTICE POINT: There are generally two distinct goals to every grievance presentation: to persuade the agency to see things your way and resolve the dispute in the Grievant’s favor; and, to build a record of clear argument and evidence for further appeals if the matter should remain unresolved at any stage. Besides the obvious goal to ―win‖ the case, what do you think are some goals you should aim for in a grievance meeting? (PP) In addition to the points raised above, the class should discuss the value of educating the Grievant, refining and clarifying issues and interests, reaching compromise/resolution, narrowing the issues in dispute, gathering information from management. Settlement As employee advocates, we are trained to zealously represent our clients. But being a good advocate doesn’t always require a fight to the death, or an uncompromising position. There can be great benefits to settling a matter, even if a settlement represents a ―compromise.‖ While we can not, and should not, settle every case, most disputes involve some room for a reasonable middle ground. What advantages do you see to settling a grievance? (PP) Give the class time to think this over, then discuss the following points as a group: - settlement is usually a quicker resolution -settlement allows for creative remedies, and remedies an arbitrator would not normally order - saves time and stress for the Grievant and the Chapter - Saves money, as well as staff resources, that can then be used to support chapters and members in other ways - ensures the resolution is agreeable to the parties rather than imposed by a third party - recognizes the risks of litigation - prevents precedential losses Review the settlement agreement on the next page. Do you think this is a good settlement? What would you suggest to improve it? See comments on the following page, and add your own. May 14, 2009 MEMO TO: Ron Bloom, NTEU steward RE: Overtime Grievance Having discussed this grievance, the undersigned have agreed to the following: a. The union will withdraw this grievance with prejudice upon signing this memo. It will also agree not to file similar grievances over the same facts. Note that in some cases, the Grievant who is party to the grievance may also have to sign it, and always should agree to the settlement. In extraordinary cases, a matter may be settled over the objections of an individual Grievant, but this is a rare move that should only be made in consultation with the Field Office because of the DFR implications, among other concerns. Additionally, the requirement to withdraw upon signing begs the question—what if management doesn’t live up their end of the deal? A better provision would require the union to withdraw only after the agency satisfied its end of the bargain. NOTE—this settlement agreement actually doesn’t say anything about what management will do for its part! Hopefully, students will readily recognize the dangers of signing away prospective claims, which possibility is raised here with the clause agreeing “not to file similar grievances over the same facts.” b. The union will not publicize this settlement in any way. If it does, it must repay management for any overtime payment made to the employees. The reimbursement provision is an example of going too far to settle, and no chapter should agree to such a term. Moreover, any provision limiting publicity should be viewed with caution, and only agreed to when the benefits of the settlement make the trade-off worthwhile. Chapters should remember that it is very important that members- and all employees- know of our successes, and “back-room deals” can be political suicide. If management insists on a term to limit publicity, try to craft it in a more limited way, e.g., “the union agrees that any publicity about the matter will not defame or slander any agency officials.” c. Management does not admit any error by entering into this settlement and this settlement does not indicate that the contract was violated. Management often demands a “non-admission” clause to settle a grievance. If the settlement is otherwise good, but management refuses to budge on inclusion, then advocate for a mutual non- admission/non-concession clause, such as “By entering into this agreement, the parties do not concede their position on the merits.” d. This settlement will be non-precedential and the union may not refer to or cite it in any other cases. This is another popular settlement term for management, but one that the union should agree to with caution. Discuss times when such a clause may be useful for a union- such as when we are “giving up” more than we think is warranted, because the Grievant is squeamish with the grievance process for example, and we don’t want to set a precedent for other employees in similar cases. Also discuss that even without such a clause, a good advocate for either party can distinguish the facts of apparently similar cases, and arbitrators can find ways to avoid being boxed in by precedent. In other words, there may be reasons to agree to such a term, or reasons why it is worth the trade-off, but the decision to accept such a term should be made deliberately because of the circumstances of the case, and not treated as the “boiler plate” required to get a deal. Finally, note that without such a term, most settlements would likely be viewed as precedential under the collective bargaining agreement (but also watch for contractual non- precedentiality clauses in particular cases such as expedited grievances, performance appraisal disputes etc.) e. Settlement is subject to approval by the Personnel Officer, once this memo has been signed by the management and union representative. It is never a good idea to make a deal contingent upon the subsequent approval of some non- party to the dispute. It is especially bad practice where the union agrees to withdraw the grievance upon signing, as in this agreement. ______________________________ ______________________________ For NTEU and the Grievant Date For the Agency Date Discussing Settlement with the Grievant Now that you have thought about some of the advantages to settlement, and reviewed specific types of settlement terms, let’s review some tips for discussing settlement with grievants, and ideas for settling some common kinds of disputes. The Instructor may wish to inform the class that we are not suggesting they should always try to “sell” settlement to Grievants. Certainly there are cases that are not appropriate for settlement, and it is not our job to force employees to compromise meritorious claims. However, there are sometimes very good reasons to settle, and it is important that stewards speak honestly with Grievants about the strengths and weaknesses of their case. An advocate is not doing his/her job if she only tells employees what they want to hear, and refusing to consider a reasonable offer is just as big a mistake as “selling out” an employee. Rather than think in such absolute terms, stewards should be encouraged to view settlement as an option in most every case, and to approach each settlement opportunity as a unique fact- specific decision to be made, in consultation with the Grievant. Things you should talk to the Grievant about settlement: Hearings can be: Traumatic Distressing Emotional The outcome of a hearing is: Uncertain Unpredictable Uncontrollable Hearings are also resource-intensive in terms of money and time. There often is an increased value of getting dispute resolved now rather than later, e.g., a monetary settlement now for one half of the amount you believe you are entitled to is worth more than the same amount received a year or more from now. Psychological benefits are greater if the case concludes now because you can move on instead of leaving the matter hanging over your head. Even a ―total victory‖ through arbitration can feel disappointing after a lengthy period of anticipation and uncertainty. It is easier to obtain unorthodox remedies through settlement instead of an arbitrator’s decision (e.g. apologies, training classes, change in duties, etc.) Discuss possibility of settlement throughout the processing of the grievance instead of just before the final step. Grievants may be unwilling to compromise when litigation is imminent because emotions are high. Settlement Tips for Particular Kinds of Cases DISCIPLINE - Something less than a suspension (e.g., Donated leave, volunteer for less desirable work or shifts, letter of apology from employee) - An opportunity to serve any suspension on weekends or other non-work days. - An opportunity to spread out the suspension over several pay periods to minimize the financial impact. - Reduce penalty as much as possible - if can reduce to discipline without permanent record, do so (e.g., letter of reprimand) - Consider holding discipline in abeyance for a period of time, and discharging if the employee does not repeat the misconduct. DISCHARGE - Clean SF5O - Leave without pay for a period of time until the employee finds another job. Personnel assistance in applying for retirement. - Some back pay, with resignation. - Suspension instead of removal - Establish contact (title or position, not necessarily a named individual) for references of former employee. - Agreement to provide a good reference, with agreed-upon language PERFORMANCE EVALUATION - An opportunity for the Grievant to submit a narrative for consideration in a re-write by the agency. - An independent review of the evaluation and the employee’s work. - A re-validated appraisal. - A counseling session with the manager, where the manager explains exactly what is needed to achieve the desired level of performance - Training - Cash award in the amount Grievant would have been received with the desired performance rating. - Reassignment to new supervisor. OVERTIME - Back pay for overtime lost. - Compensatory time for overtime lost - First consideration for the next overtime opportunity. - Right to refuse overtime without penalty. CAREER LADDER PROMOTION - Retroactive promotion - Back pay and interest. - Adjustment of subsequent actions (earlier date for next career ladder promotion). MERIT PROMOTION - Actual position with back pay and interest. - Priority consideration. - Detail to the Higher Graded Position. RACE OR SEX DISCRIMINATION - Training for the manager - Detail or training opportunities to increase the Grievant’s future career opportunities - Establishment of a committee to look at ongoing concerns of the Grievants - Compensatory damages. - Notification of zero tolerance policy by Agency. - Apology. - Reassignment to new supervisor. - Possible discipline of managers. DISABILITY DISCRIMINATION - Same as Race or Sex Discrimination above. - Choice of accommodation preferred by the Grievant. - Re-evaluation of accommodation after a period of time. FAILURE TO BARGAIN - Immediate withdrawal of the change in working conditions. - Correction of any adverse impact that may have occurred as a result of the unilateral change - Posting assuring that management won’t do that again. - A specific commitment to come to the table and bargain. Arbitration Requesting Consideration for Arbitration Under the law, the decision whether to arbitrate a matter lies with the Union, not a Grievant. Within NTEU, the authority to invoke arbitration has been delegated down to the level of National Counsel. Chapters who wish a matter to be considered for arbitration should forward the case to their Field Office for review and determination. Arbitration must be invoked twenty (20) work days of receipt of the first step decision. Because the review is often very thorough, and sometimes time-consuming, the chapter is advised to notify the Field Office as soon as a final decision is reached, and to forward them the case files as soon as possible. The following items should be promptly forwarded to the Field Office to ensure a timely and thorough review: > 'Briefing Memo' that addresses at least the following information: Date that a representation decision must be made (arbitration invocation deadline, MSPB appeal deadline, EEOC filing deadline, FLRA filing deadline, etc.; Agency's position: a concise statement of the Agency's factual allegations, legal arguments, and proof in support of its facts and arguments, including any cited sources of authority, any relevant language in the step decisions, and comments made by management during meetings; Union's position: a statement of the Union's factual allegations, legal arguments, and proof in support of its facts and arguments, including a response to every allegation and argument made by the agency, all cited sources of authority (applicable contract provisions, regulations, and law), any statements of past practice, any comparison to similarly situated employees, any expected witness testimony, etc.; An analysis of all the reasons that the case should - and should not - be invoked for arbitration, including the ideal as well as minimum remedy acceptable to your chapter and the affected employee(s); and Your recommendation and reasons. >Completed Grievance Checklist, noting the significant actions and dates in the case, as well as participants in the process (sample attached at the end of this Guide) >Initiating document, e.g., the grievance, proposal letter, etc. >"Reply" file if there's an oral or written reply, containing any transcript, written submissions, documents provided as exhibits, etc.; >"Decisions" file with management's step or reply decisions in chronological order and reflecting a copy of all information requests submitted and any responses received; > ―Correspondence" file with correspondence (other than management decisions, your appeal memos, your information requests, and responses to your information requests) arranged in chronological order; > Notes of all interviews and investigations, grievance meetings or settlement talks, indicating in some way the portions to which your field representative should pay special attention; > Any other records that help explain what has happened in the case or that organize the material. The Decision Whether to Arbitrate Some factors that NTEU considers in reviewing a case for arbitration are: How much of an impact does the case have on the Grievant, and on the union as a whole? Who would be affected by the outcome, whether good or bad? Is evidence available and does the evidence support our position? Whether the arguments are legally significant and persuasive? The interpretation given by arbitrators in previous, similar decisions. Relevant contract, statutory or regulatory language, its plain meaning, history, intent. Potential consequences of a negative decision. Cost/benefit of the particular issue/case. Whether we can afford to lose? The gain versus potential loss. The amount of resources needed to pursue the case, in terms of money and time. Additional Questions about arbitration: Who are the arbitrators and how does arbitration proceed? Who pays the bill, and how much does it cost? Final Exam Looking back at Angela and Robert’s complaint, let’s assume you took the matter through the grievance process and presented all the argument and evidence you developed. Management offered to settle this matter by giving Robert and Angela the right to volunteer for the next overtime project before other group employees, but would do no more. Do you believe this is a case worth taking to arbitration? List the reasons for your recommendation: GRIEVANCE CHECKLIST Grievance #________________________ Date:______________________ Type: Individual ____________________ Union _________________ Chapter #___________ 1. Grievant's name:__________________________________________________________ Job Title:________________________________________________________________ 2. Work location/office:______________________________________________________ Immediate supervisor:______________________________________________________ 3. Article(s)/law/rule/regulation violated:_________________________________________ 4. Name of steward handling case:______________________________________________ 5. Step 1 1. Date grievance filed:_________________________________________________ 2. Date meeting held:__________________________________________________ 3. Name of supervisor:_________________________________________________ 4. Date written decision due:____________________________________________ 5. Date written decision received:_________________________________________ 6. Date related information requested:_____________________________________ 7. Date information received:____________________________________________ 6. Step 2 1. Date Step 1 response appealed:_________________________________________ 2. Date meeting held:__________________________________________________ 3. Name of management official:_________________________________________ 4. Date Step 2 response due:_____________________________________________ 5. Date Step 2 response received:_________________________________________ 7. Step 3 a. Date Step 2 response appealed:_________________________________________ b. Date meeting held:__________________________________________________ c. Name of official:____________________________________________________ d. Date Step 3 response due:_____________________________________________ e. Date Step 3 response received:_________________________________________ f. If arbitration is requested, date response and any other relevant information was mailed to National Field Represent alive: 8. Grievance Forwarding Checklist a. ________________ Grievance Record Form b. ________________ All Management replies (indicate on each reply the date received by the union and the name of the recipient). c. ________________ All written correspondence related to this grievance in the chapter's possession d. ________________ All records of discussion related to this grievance. e. ________________ All related interview and grievance investigation forms. f. ________________ Detailed statement examining the facts surrounding this grievance. 9. List the names of all witnesses, including titles and work phone numbers, or any other persons who may have observed or had knowledge of the complaint/contract violation: a. ____________________________________________________________ ______ b. ____________________________________________________________ ______ c. ____________________________________________________________ ______ d. ____________________________________________________________ ______ 10. Cite all laws, CFR provisions, Agency regulations, local orders, standard operating procedures, or other related publications or documents which you believe pertain to this grievance a. ____________________________________________________________ ______ b. ____________________________________________________________ ______ c. ____________________________________________________________ ______ d. ____________________________________________________________ ______ 11. If the chapter president wants the grievance considered for arbitration, mail a copy of the grievance and all materials to your National Field Representative immediately after receiving management's response to the final step of the grievance. NOTE: This form is for NTEU use only. It should not be submitted to management.
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