Grievances

By William Ossmer

General Principles

What Is a Grievance?

Article 24, Section 2 of the National Agreement defines grievance this way:

  1. By an employee(s) concerning any matter relating to the employment of the employee;
  2. By the Union concerning any matter relating to the employment any employee; or
  3. By any employee(s), the Union, or the Administration concerning:
  4. The I effect or interpretation, or a claim of breach, of a collective bargaining agreement; or
  5. Any claimed violation, misinterpretation or misapplication of any law, rule or regulation affecting conditions of employment.

Exclusions from the Grievance Process

The 2005 contract specifically excludes the following from the grievance process

  1. any claimed violation of 5 U.S.C. 73 relating to prohibited political activities;
  2. retirement, life insurance or health insurance;
  3. a suspension or removal under 5 U.S.C. 7532 relating to national security;
  4. any examination, certification, or appointment;
  5. the classification of any position which does not result in the reduction in grade or pay of an employee;
  6. non-selection for non bargaining unit positions; or
  7. non-selection for bargaining unit employees from amongst properly rated and ranked candidates with the exception that employees may file grievances alleging unlawful discrimination as defined by Title VII. However, employees may file a grievance for non-selection from the exercise of a priority consideration. Employees may also file either a grievance or unfair labor practice, but not both, alleging anti-union animus.

How Does the Grievance Process Work?

A grievance can be initiated by a bargaining unit employee, the Union or the Administration. An employee who files a grievance can elect to be selfrepresented or choose to be represented by a designee of the Union. If an employee elects Union Representation and the Union agrees to represent that employee, all communications regarding the grievance must be made through the designated Union Representative. Please note that the Union decides whether or not to represent an employee based on the facts of the case. The Union also designates who the Union Representative will be for each case.

There are three steps to the grievance process unless one is dealing with a Union management grievance. A Union initiated grievance has only one step. If a grievance is not resolved through the grievance process, arbitration must be considered. It is important to determine the proper management official to whom the grievance should be submitted. The chart in Article 24, Section 9, of the National Agreement shows who the proper official is.

A grievance concerning a continuing practice or condition may be presented at any time. An employee grievance concerning a particular act or occurrence must be filed within 15 working days of the action or of date the employee became aware of it. An employee who files a grievance alleging discrimination may first discuss the allegation with an EEO counselor. This discussion must take place no longer than 45 calendar days after the alleged event or the date the employee became aware of the event. Once the EEO investigation is complete, the employee has 15 working days from the date of the EEO counselor's decision to file a grievance. If an employee alleging discrimination chooses not to use the EEO counseling procedure, any grievance on this issue must be filed within 45 days of the event that gave rise to the allegation or after the date the employee became aware of the event.

The standard form used to file grievances in SSA is form SSA2048. While it is not mandated that this form be used to file a grievance, it is preferred. However, it is essential that a grievance be submitted in writing. A grievance will not considered as having been filed based upon an oral statement only. It is, therefore, essential that the grievance be reduced to writing and timely submitted to the appropriate management official. The grievance should also indicate whether or not an oral presentation of the grievance is being

Escalating the Grievance

If management fails to meet any of the time requirements specified in the Contract the grievance can be escalated to the next step of the grievance process per Section 12, Article 24 of the National Contract. But carefully weigh the benefit of obtaining a decision from the appropriate management official versus the benefit of escalating a grievance in such a situation. If management does not give the grievant an opportunity to make an oral presentation (if requested) within the required time or does not issue a decision in writing within the required time, the grievance can be escalated to the next level upon the request of the grievant. Conversely, if the grievant fails to escalate a grievance timely, the grievance is terminated. Therefore it is of the utmost importance that the grievant or representative timely escalate grievances if a fully favorable decision is not received. If management does not make a decision on a grievance and the grievant does not escalate the grievance, it remains open indefinitely per Section 12C of the National Contract. All deadlines can be extended by mutual consent. If you are requesting an extension of a timeframe, be sure to do so in writing. If management agrees to an extension, be sure this is in writing also.

Article 24, Section 5 of the Contract requires management to settle grievances promptly. However, management suffers no penalty for failing to do so. If they continually fail to process grievances according to the timeframes stipulated in the National Contract, the Union has the option to file a grievance on their violation of this portion of the Contract.

Completion of the Grievance Form SSA2048

This form is two sided. The reverse side is for the disposition of the grievance. This is where management normally responds in writing to the grievance. This part of the form is also used by the grievant to request that the grievance proceed to the next step. When completing an SSA-2048 two copies of the front side should be made: one for the Union; the second copy is the employee's copy. Please bear in mind that a grievance is submitted in writing and on time to the proper management official is valid even if form SSA2048 is not used.

The actual completion of SSA2048 is selfexplanatory. The "Description of Grievance" should include a brief synopsis of the issues involved. If a breach of the Contract is involved, cite the specific sections violated. If there has been a violation or misapplication of any law, rule or regulation, then cite the applicable law, rule or regulation. This will strengthen your position and clearly communicate your position to management. However, since a grievance can be any complaint concerning any matter relating to the employment of the employee, there does not have to be a contractual or statutory violation before a legitimate grievance can be filed. It is best to be succinct and factual in describing the grievance. If an oral presentation has been requested, many of the relevant details surrounding a particular grievance can be filled in at that time. Provide sufficient information to show clearly how the specific violation occurred, but do not give so much that you confuse the important issues.

The section entitled "Relief Sought" is extremely important. This is the portion of the form in which the grievant informs management what is being sought to resolve the issue. Remember: you are not likely to get anything you do not ask for. It is usually best to ask for more than you are willing to settle for. However, be sure that the relief sought is both rational and within the realm of possibility. When management provides the "relief sought" stated in the grievance, the grievance is then considered fully resolved. Therefore, clearly specify all the conditions needed to satisfy the grievant. You can always accept less than what you requested but management will rarely concede more.

The 2005 contract requires that, before the last step of the grievance process, the written grievance must:

  • clearly and specifically describe the matter(s) being grieved, including the date/placeof the occurrence and the individuals involved.
  • The written grievance must also identify the article(s), section(s) and provisions(s) of the agreement that are involved,
  • explain the alleged violation and
  • state the requested relief.

Grievances are being denied based solely on the lack of this information

Union Management Grievances

Article 24, Section 10 of the National Contract allows the Union to initiate a grievance on its own. Union--Management grievances cannot be initiated by an employee. A Unioninitiated grievance filed at the local level will be submitted to the appropriate manager or designee. The grievance must be submitted within 25 working days of the disputed action or of the date the Union became aware of the action unless the grievance concerns a continuing practice. A Union management grievance concerning a continuing practice can be submitted at any time.

This is a onestep grievance process. If the grievance is not resolved at this level, the Union can invoke arbitration within 30 working days after receipt of the final decision. This type of grievance is not escalated to a higher internal agency component after the first stage. If the agency's decision is unfavorable, the only option is to invoke arbitration.

Steps to Take Prior To Filing a Grievance

  1. Talk to the grievant and all other involved parties. Get the facts and ask questions. Don't forget the four W's "Who?", "What", “ When?'', and "Where?" Obtain statements from all material witnesses.
  2. Obtain any and all documentation dealing with the issue in question.
  3. Obtain, review and analyze any relevant portions of the contract, law, agency regulations, MOU's, POMS, MSOM, etc.
  4. Consider all the options available to resolve the issue such as filing unfair labor practice charges or appealing to the EEOC, or Merit Systems Protection Board. Be sure to remember that filing a charge in one of these venues prohibits you from filing the charge in another venue.
  5. Review the SF7B file and copy the complete file if relevant.
  6. Request any information needed per 5 USC 7114(b)(4). This request should be in writing and should not be included as part of the grievance. The value of this cannot be overestimated, as it is the Union's opportunity to obtain information needed to vigorously pursue its case. Many times this information will also enable you to determine the agency's rationale for taking a particular action.
  7. Evaluate your case:
  8. Review the pros and cons of your case realistically and objectively.
  9. Order your thoughts
  10. List your main issues and arguments.
  11. Discuss the case with other Union Officials to obtain their perspective and feedback. The knowledge and experience of our own officials is a valuable resource that should not be overlooked.

Oral Presentations

The value of an oral presentation cannot be overestimated. However, there may be times when you feel the value of such a presentation is limited because you have already fully discussed the issues with the management official involved at a particular level of the grievance process. An oral presentation gives both parties an opportunity to clarify the issues and to determine areas of agreement and disagreement. Dialogue may lead the parties to find a common ground resulting in a resolution of the issues

Even when making an oral presentation, it is essential that you provide your arguments to management in writing. This written presentation is important, as it will reinforce your arguments and will refresh management's memory when they are making a decision. This is especially important since management may take many days or weeks after your oral presentation before actually making a decision on your grievance. Management may have forgotten the main points of your oral presentation by that time. To force them to focus on you instead of the written document, wait until you until after you have completed your oral presentation before giving them your written arguments.

After your oral presentation, before closing your presentation, give the grievant an opportunity to add any relevant comments or ask additional questions. Before your oral presentation it is helpful to familiarize grievant with the process, the sequence of events, and what you expect of them during this presentation.

Prepare a written outline of your key speaking points in advance, to assist in your presentation. This will insure that you present your arguments logically and clearly. It will also insure that you do not forget to discuss any key points.

Processing a grievance requires time, patience and perseverance. Do not become discouraged if management denies your grievance. Do not expect the decisionmaker another management officialto be unbiased, objective, and fair. Normally, you will find the opposite. Present your grievance with this in mind. Remember, there are normally three steps to the grievance process . As a last resort, arbitration can be invoked. Carefully review management's response to your grievance. It may provide you with clues to the reasoning behind their decision. You can then address these issues as you escalate your grievance. If arbitration is eventually invoked, management's prior responses should provide clues as to how they will attempt to defend their actions and decisions. This will enable the Union to better prepare for arbitration by identifying the relevant and important issues in dispute. This allows the Union to avoid spending precious time and energy arguing issues that are not in dispute and to focus only on those issues that are germane to the grievance.

Never make promises you may not be able to keep. Since the results of a grievance cannot be predicted, it would be foolish to try to do so. Honestly appraise each situation. Avoid exaggerated claims and promises as not to unrealistically raise the hopes of the grievant. If management makes a good faith offer to resolve the grievance, consider it and either accept or reject it after discussing it with the concerned employees. It may in everyone's best interests to accept a settlement offer even if it is less than the relief sought. In making such a decision, consider factors such as cost, benefit to the employees, time, importance of issues, etc.

The Grievance Process

What is a Grievance

  • A contract violation, including violation of past practices.
  • Any dispute between an employee or the union and management in an area where management has responsibility.
  • Any violation or misapplication of any law or regulation affecting employment.
  • Disciplinary actions.
  • 5 USC 7121 spells out the authority for grievance procedures.
  • Where a collectivebargaining agreement exists all covered employees must use the negotiated grievance procedure, as the exclusive grievance procedure

Who may file a grievance

  • Individuals have the right to process their own grievance. However they may not select their representative. An employee may not insist on using an attorney.
  • It is the right of the Union to designate the employee's representative if the employee requests a representative.
  • The Union has a right to be present during the presentation of any grievance under the negotiated grievance procedure.

What is the purpose of the grievance and appeal procedures

To enforce compliance with

  • The negotiated agreement, including
  • Past practices
  • Memorandum of Agreements/ Understandings
  • Previous grievance settlements
  • Laws, and government wide rules and regulations
  • Agency rules and regulations
  • Provide a system for quickly settling disputes
  • To solve problems
  • Protect employee rights and fight management injustices against them
  • To put the united strength and skill of AFGE behind every member who has a legitimate grievance
  • To give federal employees a voice in setting conditions of employment

Good grievance handling

  • Settle grievance based on its merit only.
  • Settle at lowest possible step. Builds member confidence in the Union and demonstrates the Union is a problem solver, not creator.
  • Avoid delays. Delays worry the worker and erode confidence.
  • Define authority and responsibility clearly.
  • Keep member informed.
  • Avoid favoritism; apply the provisions of the contract consistently for all.
  • Never make promises.
  • Bring grievant to all possible meetings.
  • Keep file organized, up to date at the I Union office with posted meeting schedule

What is appealable outside the grievance procedure

Certain matters may either be appealed through the grievance procedure, or other statutory appeal process, but not both. If appealed through the statutory appeal the Union is no longer the exclusive representative and an employee may select a representative of their own choice. Some of these statutory appeals are:

Appeals to Merit System Protection Board for;

1)Removals from service;

2)2) Suspensions for more than 14 days;

3)3) Reduction in grade or pay;

4)4) Furloughs of less than 30 days.

The above 4 items are called Adverse Actions

Appeals to Equal Employment Opportunity Council (29 CFR Part 1614) for violations of;

  • Title VII of the Civil Rights Act of 1964, 42 USC Section 20OOe16
  • Discrimination on the basis of race, color, religion, national origin, sex, or retaliation for civil rights activities.
  • The Age Discrimination in Employment Act of 1963, 29 USC Section 631
  • The Rehabilitation Act of 1973, 20 USC Section 791 Discrimination prohibited against qualified handicapped individuals and requires reasonable accommodation where appropriate.
  • The Equal Pay Act of 1966, 29 USC Section 206 Prohibits paying of males and females different wages for equal work.
  • Whistleblowing
  • An individual Right of Action 5 USC 1221 to the Office of Special Council and in 5 USC 2302 to the MSPB.

Investigation

When investigating a possible grievance, a steward must know how to handle the interview process. Here are some tips:

  • RELAX, make yourself and the employee comfortable.
  • LISTEN to the employee; let them get the whole story out.
  • ASK questions to ensure the employee presents facts and circumstances accurately. You must understand the situation clearly.
  • WATCH for the employee's emotion, be aware of it and do not let it override the facts. Do not process a gripe as a grievance.
  • RECORD the information Write brief notes of the facts given toyou.
  • TEST complaint against the contract, past practice, law, rules or regulations.
  • DISTINGUISH between
  1. Problems with contract, law, rule, or agency regulation (grievance)
  2. Problems outside the shop or office (gripe)
  3. Complaint or misunderstanding with the Local (not a grievance)
  4. Argument between employees or members (gripe or grievance).
  • DETERMINE if there is a grievance. Was there a violation of:
  1. The Contract, check it first, it provides greatest coverage
  2. The Law, check for specific type of violation
  3. An area where management has responsibility
  4. Government wide regulations (Code of Federal Regulations, CFR)
  5. Agency regulations
  6. Past Practice
  7. Has the employee been treated fairly.
  • If yes go to the next step. If no, tell employee NO! Confer with Chief Steward and then explain WHY NOT to the employee. Do not arbitrarily dismiss the employee's complaint without first investigating.

Who, What, When, Where, Why, Witnesses