To understand how to process a grievance, you must understand what it does "for or to" four different groups, i.e., the employees, NTEU, management, and yourself.
For Employees
- It helps them enforce rights and learn more about how decisions were made.
- It is a way to empower themselves in the work place.
To grieve is to challenge, to challenge is to question, and to question is to learn.
- It is a way to get extra counseling and advice.
For NTEU
- It is a low cost, simple way to enforce negotiated rights.
- It brings workplace problems to light.
- It protects an employee’s claim while the union uses a more effective method to solve a problem.
- It spotlights weakness in the contract that have to be renegotiated.
For Management
- It is a low cost, simple way to enforce contract terms.
- It spotlights poor managers.
For Yourself
- It gives you a service to provide to members in your area.
- It gives you an opportunity to learn about the workplace.
- It brings problems to your attention that you may solve in other ways.
AN NTEU CHECKLIST
The grievance procedure covers an incident if the employee is in the bargaining unit and you can answer "Yes" to any of the following:
- __ 1.
- 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?
- __ 2.
- Does it concern the effect or interpretation, or a claim of breach of a collective bargaining agreement?
- __ 3.
- Does it concern any claimed violation, misinterpretation or misapplication of any law, rule, or regulation affecting conditions of employment? This includes past practice violations.
However, even if you can answer yes to any of the above, the law excludes a limited number of specific matters from the grievance procedure. Despite the above, the incident is not a grievance if you can answer "Yes" to any of these questions.
- __ 4.
- Does it involve prohibited political activities?
- __ 5.
- Does it involve a claim for retirement, life insurance, and health insurance?
- __ 6.
- Does it involve a suspension or removal for national security reasons?
- __ 7.
- Does it involve any examination, certification, or appointment?
- __ 8.
- Does it involve the classification of any position which does not result in the reduction in pay or grade of the employee?
- __
- Furthermore, the parties are authorized to agree to exclude any matter from coverage of the negotiated grievance procedure. Therefore, you should review your contract to determine its specific exclusions. Some of more typical exclusions involve warnings of pending actions versus the action itself, RIF's. We will usually list these in the Grievance Procedure article of your contract.
Where the grievance procedure covers discrimination complaints, adverse, or unacceptable performance actions, covered employees may use either the negotiated grievance procedure or the statutory appeals process (i.e., EEOC or MSPB), but not both. Moreover, the first one filed is the one you must stay with.
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 CHECKLIST. As you decide, cite the portion of the checklist that applies.
- An employee comes to you to complain that management just told him he can no longer park in the office’s lot because there are too many people who want to park there and he does not meet the criteria as well as they do. Is it a grievance?
- An employee comes to you to complain that management violated the contract by deny him overtime. You check the contract and find a clause that says, "Overtime will be distributed in a fair and equitable manner by management." Management told the employee that they denied him the overtime because he did not have enough seniority for this assignment. Does he have a grievance?
- An employee comes to you to complain that a manager just sexually harassed her, but that the EEO counselor she saw 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?
- An employee comes to you to complain that he was injured on the job and that the Workers Compensation program denied him benefits. Does he have a grievance?
- An employee wants to grieve the first notice that they may deny her within-grade increase if her performance does not improve. Is it a grievance?
- An employee comes to complain that they just denied one of his health insurance claims and that the carrier just put his oldest daughter off the plan because she is no longer his dependent. He wants the union to do something. Does he have a grievance?
- An employee comes to complain that he is currently a GS-7 and believes that he should be a GS-8. He wants you to get him a higher grade. Along with him is his office mate who is a GS-6 and claims that for the last six months he has been doing GS-7 work. He wants a retroactive promotion and back pay. Do either of them have a grievance?
- An employee believes that she should be receiving time and one-half overtime rather than GS-10 overtime. He is a confidential secretary. Does he have a grievance?
NTEU GRIEVANCE ADDENDUM
In addition to our general allegation that claims violations of all laws, rules and regulations related to the nature of the grievance, we are listing some specific sections of law violated as indicated by the check marks below
UNFAIR LABOR PRACTICES (5 USC Section 7116 (a))
It was a violation for management
- ___(1)
- to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;
- ___(2)
- to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment;
- ___(3)
- to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status;
- ___(4)
- to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter;
- ___(5)
- to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; [This includes a unilateral change in past practice and a refusal to bargain.]
- ___(6)
- to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter;
- ___(7)
- to enforce any rule or regulation (other than a rule or regulation implementing section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed; or
- ___(8)
- to otherwise fail or refuse to comply with any provision of this chapter.
PROHIBITED PERSONNEL PRACTICES (5 USC Section 2303 (b))
- ___A.
- Discriminate for or against any employee or applicant for employment:
- On the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964;
- On the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967;
- On the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938;
- On the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973;
- On the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation.
- ___B.
- Solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of:
- An evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or
- An evaluation of the character, loyalty, or suitability of such individual.
- ___C.
- Coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as reprisal for the refusal of any person to engage in such political activity.
- ___D.
- Deceive or willfully obstruct any person with respect to such person's right to compete for employment.
- ___E.
- Influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment.
- ___F.
- Grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment.
- ___G.
- Appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position, any individual who is a relative (as defined in Title 5 of the United States Code) of such employee if such position is in the agency in which such employee is serving as a public official(as defined in Title 5 of the United States Code) or over which such employee exercises jurisdiction or control as such an official.
- ___H.
- Take or fail to take a personnel action with respect to any employee or applicant for employment as a reprisal for:
- A disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences:
(a) a violation of any law, rule, or regulation; or
(b) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs; or - A disclosure to Special Counsel of the Merit Systems Protection Board, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences:
(a) a violation of any law, rule, or regulation, or,
(b) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
- A disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences:
- ___I.
- Take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation.
- ___J.
- Discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this subsection shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States.
- ___K.
- Take or fail to take any other personnel action if the taking of, or failure to take, such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in the Civil Service Reform Act of 1978.
Let’s just check to make sure you understand how to use the NTEU Grievance Addendum. Answer these questions.
- #1
- An employee comes to complain that he just lost a promotion and when he asked his manager why he was not selected he was told, "Gee Horace, you have spent most of the last year on union committees and partnership activity. If we selected you, we would never have any of the work done. You are a good candidate and when you return to the real job you will probably get the promotion." He knows that they violated the contract, but he wants to know if there are any other rights that they may have violated. Can you think of any to cite in a grievance?
- #2
- Alicia was just passed over for a promotion and you are sure that the ranking panel failed to give her enough credit. You are planning to grieve that when you see one member of the panel in the hall. You are friends and you ask her about Alicia’s problem. She responds telling you that the fact that Alicia has filed so many EEO complaints over the last year cost her more points on the Meet and Deal ranking factor. Is there something else besides the contract you can charge management with violating?
- #3
- An employee’s manager just reduced his performance appraisal score in the factor of Oral Communication citing an after hours speech the employee gave at a local community group that was covered on local television. The manager told the employee the speech was poor and the ideas were wrong. The employee suspects this happened because the employee is competing against another employee in the group who the manager wants to help get promoted.
- #4
- Management has just announced a change in the way that groups are assigned lunch break periods. They claim this is necessary to avoid overcrowding and to create more room at tables. Is this a grievance?
A Typical Case
Angela comes to you to complain that she just received a letter of reprimand for using "Foul and Unacceptable" language in the cafeteria. You read the letter and find the essence of it to be as follows:
On January 14th you were observed using foul and unacceptable language by several employees who filed written complaints with management that day. Although we have never disciplined you for this in the past, your manager has mentioned to you several times that she would prefer it if you did not use this language in the building. Our regulations prohibit any disruptive behavior by employees and this office has a long-term practice of disciplining employees who repeatedly use this language.
You know you have a grievance here, but you need to think now about the investigation of the grievance. Whom do you need to question and what do you need to ask them? What records or other documents do you need to see?
INVESTIGATING THE GRIEVANCE
Employee and Employee Witness Questions
Basically, when dealing with an employee who wants to file a grievance or an employee witness, the key to success is finding out everything they know or suspect about the incident--even things they may not know they know. Here are questions to ask normally.
- __ 1.
- Generally, what happened to create this grievance?
- __ A.
- What did you see?
- __ B.
- Who said what?
- __ 2.
- What specific actions were taken and by whom?
- __ 3.
- When did these events occur? (Get them in chronological order.)
- __ A.
- When did you learn about these events?
- __ 4.
- Where did all these events take place?
- __ 5.
- Is there any other evidence besides your statements and recollections that all this occurred on these dates, e.g., names of witnesses, documents, etc.? Is there evidence to the contrary?
- __ 6.
- How have all or any of these events harmed you?
- __ A.
- Have you lost anything you already had?
- __ B.
- Have you lost something you would otherwise have had?
- __ 7.
- Do you have in mind any specific provisions of the contract, law, regulation, or agency publications that management violated by the above?
- __ 8.
- Does it seem like management violated a past practice in your group or larger work area when they did this to you?
- __ 9.
- Why do you think that management did this to you?
- __10.
- What remedy do you want or what will it take to make you whole again?
- __11.
- Have you already discussed this with any manager and, if so, what did they say?
- __12.
- Have any other employees been harmed similarly by these actions? If so, who?
It is a good idea to write up the answers to these questions so you, the chief steward or Field Representative will remember them and not have to cover the same ground twice.
INVESTIGATING THE GRIEVANCE
Questions for Management
At times, you want to talk to the line managers and/or personnel and other support staff to find out what they know about the incident. This can occur before the time to file the grievance or during the grievance procedure. The questions you want to asks them are related to the ones asked the employee or witnesses you have already interviewed.
1. Generally, what happened to create this situation?
___ A. What did you see?
___ B. Who said what?
2. What specific actions were taken and by whom?
3. When did these events occur? (Get them in chronological order.)
___ A. When did you and the employee learn about these events?
4. Where did all these events take place?
5. Is there any other evidence that I should consult or that certifies what happened, e.g., witnesses, documents, etc.? Is there evidence to the contrary?
6. How have all or any of these events harmed ________?
___ A. Has he/she lost anything you already had?
___ B. Has he/she lost something he/she would otherwise have had?
7. Do you have in mind any specific provisions of the contract, law, regulation, or agency publications that regulate the actions management took?
8. Has there been a past practice in your group or larger work area that management followed when it did this?
9. Why did management do this to _________?
10. What, if anything, can be done to correct the problem or to help_____________ feel like he/she was treated fairly? What did_____________ lose as a result of the management decision?
11. Have you already discussed this with the employee and, if so, what was said?
12. Were any other employees involved in these management actions? If so, who?
It is a good idea to write up the answers to these questions so you, the chief steward or Field Representative will remember them and not have to cover the same ground twice.
INVESTIGATING THE GRIEVANCE
Questions for the Chief Steward
Management is not the only source of information. Often the other union representatives have information you can use. Here is a list of questions you may want to ask the Chief Steward or other stewards if you have regular steward meetings.
1. Do we have any similar cases to this now in progress in other work areas?
2. Have we had similar cases in the past and how have they turned out?
3. Do we know if we have ever arbitrated a case like this and, if so, what was the result?
4. Is this a case where there may be "bargaining history" I should know about? If so, how do I find out.
5. Is this a case that we would typically take to arbitration? If that is unclear at this point, what do I need to find out to help the chapter make that decision?
INVESTIGATING THE GRIEVANCE
The Law, Rules, and Regulations
Although most of the formal terms and conditions of employment can be found in the contract, you want to be sure that you have checked every possible source for guidance on what should happen. In the federal sector, this means you have the check
___ The law (The U.S. Code or USC)
___ The Code of Federal Regulations (CFR)
___ The Federal Personnel Manual (FPM)
___ The Departmental Regulations
___ The Agency Regulations
___ Regional or Local Regulation Supplements
All of these should be available in Personnel and Personnel has to give you access to and copies of portions relevant to your grievance or potential grievance.
On the following pages the table of contents of the Code of Federal Regulations (CFR). It will give you a good idea of the various subjects covered by the regulations. The numbering system it uses is followed by most federal regulations.
Also attached is a copy of the "Personnelizer," an index source many agencies have. Ask for it and use it if it is available. Finally, there is a copy of the FPM index which virtually every Personnel office has. Use it as well.
INVESTIGATING THE GRIEVANCE
Accessing Agency Records
There are three laws that give the union access to agency records. These are the,
Civil Service Reform Act
The Freedom of Information Act
The Privacy Act
We briefly describe your rights under each of these on the following pages. Generally, you just want to ask management for any document you think is relevant to deciding whether you have a grievance or that will help you argue and understand a grievance you have already filed. You should not have to cite the law you are using. However, if you do, then these one-page guides will give you a good idea of how to respond. A model letter is also included.
INVESTIGATING THE GRIEVANCE
Typical Documents to Access
Below are listed some examples of typical documents you might consult when you have a grievance related to the topic.
PROMOTIONS- The complete promotion file.
PERFORMANCE- The Employee Personnel File (EPF), the employee "drop" file, the
EVALUATION Official Personnel Folder (OPF), the sanitized copies of everyone else's evaluation in the same work group.
HEALTH AND- Safety inspection reports, worker compensation
SAFETY claims, health unit reports.
LEAVE- Time cards, leave records, SF-71's, leave abuse letters.
DISCIPLINE- Letters given other employees in similar situations, the investigation report.
TRAINING- Course lists, descriptions, and training materials; enrollment lists, competitive selection files, course evaluations.
WORKLOAD- Case distribution reports, employee inventory lists, positions descriptions, critical elements.
OVERTIME- Overtime per employee lists, seniority and skill lists, employee requests to avoid OT.
AWARDS- Lists of awards and amounts given along with back-up documentation.
OUTSIDE- Copies of employee requests and approvals, copies
EMPLOYMENT of Counsels' legal opinions on similar requests.
RELEASE/ Copies of R/R lists, copies of back-up evaluations
RECALL or other count of work documentation.
Many of these documents you may have to accept in sanitized form due to the Privacy Act. Consult the Chief Steward when that happens to see if we want to challenge management's decisions to sanitize.
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 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 created from existing files. They cannot charge you for this data.
3 There is a four-part test to getting information under the law. First, are the data normally maintained by the agency. It does not have to exist in the form you request it; the agency can be obligated to reformat it for you so long as you are not unreasonable in your 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, are the data reasonably available. Your request can be burdensome, but it should not be excessive nor extreme. You must modify your demand if the agency can give you what you want in a less burdensome format.
5 Third, is your demand necessary, not just useful, to the negotiations of or grievances over a contract. This includes getting information to help you decide whether to file a grievance or invoke negotiations. In some cases you need a particularized need.
6 Fourth, you cannot get access to information which management uses to advise other managers how to conduct specific collective bargaining responsibilities.
7 If denied the information, you can file a ULP with the FLRA, file a ULP grievance citing a violation of Section 7114, add this issue to an existing grievance, or file a related request under FOIA or Privacy. You can even publicize the denial among the members claiming a cover-up.
8 If the data you request would result in an invasion of an employee’s privacy, you may have to get it in sanitized, but coded fashion.
Monte Mall
Chief, Inspectional Services
Department of the Treasury
1234 Backwater Street
Reno, Arkansas 50001
RE: Request Filed Under 5 U.S.C. 7114(b)(4)
Mr. Mall:
In accordance with 5 U.S.C. 7114(b)(4) and Article , Sections and , of the NTEU Agency Agreement, I request to be given the following information:
1. A copy of each and every document, of any kind or nature, which... (At this point, identify each of the specific document(s) which you believe is maintained by the agency and which is necessary to investigate a potential grievance, prepare or process a grievance at any stage, including arbitration, or conduct negotiations. All requests should identify a specific and well defined issue.)
I require this information in order to carry out my duties and responsibilities identified in 5 U.S.C. Chapter 71. (Include a statement of how the requested information is relevant to the union's status as exclusive representative. See paragraph I(B)(2) in text, above.)
I request that this data be furnished to me no later than five (5) days after you receive this letter.
If this request is denied, in whole or in part, please inform me, in writing, of the name, position title, and grade of the official making that decision and the specific statutory, regulatory, or contractual citation(s) on which that decision is based.
Sincerely,
Keith Parker
Steward, NTEU Chapter 550
#1- In reviewing his manager's drop file on him, the employee sees some mention of a memorandum about him that seems adverse and inaccurate. However, it is not in that file nor is it in his Official Personnel Folder. What do you advise?
#2- Another employee slipped today on a wet floor caused by a leak in the roof. Even though the union has mentioned this leak to management many times, all management says is that it is working on the problem with the building manager. How can you verify that?
#3- An employee has complained that other employees in her group and throughout the branch seem to get higher evaluation scores in relation to relatively equal narrative comments. How can you check this out?
Generally, you want to use the form provided in this manual when filing a grievance. Below are listed some tips to follow when completing the form.
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, never describe the nature of the grievance as "The employee was harmed by the second rating official’s rating in factor three." You should say, "The employee was harmed by the unfair rating process." Leave the details for the meeting.
2 Be sure to cite all possibly related portions of the contract. Also mention any related laws, rules and regulations. Use the NTEU Grievance Addendum.
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 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 the 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.
6 Never concede anything related to the grievance in the written grievance. That can come later.
Can you think of other rules stewards should follow? Have you seen errors that more advice here could correct?
NTEU GRIEVANCE FORM
Grievant(s):Date:
( ) And other similarly situated employees.
General Nature of the Violation(s):
Articles (and Sections) Violated:
We also allege violations of laws, rules and regulations related to this grievance. ( ) See attached for specific citations regarding unfair labor practices and/or prohibited personnel practices.
Remedies:
Aside from those remedies specifically mentioned in this grievance, we also request any other remedy deemed appropriate by proper authorities.
Union Representative: Tele. No.:
#1 Look back at the hypothetical grievance case that is at the beginning of Section V "Investigating the Grievance." How would you write the part of the grievance where you are describing the nature of the violation? Check the NTEU Grievance Addendum to see if there are any portions of it that might be cited. List them. Finally, write out what you believe to be a good remedy statement.
Nature of Violation:
Citations to Violations:
Remedy:
#2 What is wrong with the following statements about the "nature of the grievance"?
A "Gina Jones’ rights were violated repeatedly by management decisions."
B "The suspension is a violation of Gina Jones’ rights because the oral reply official did not answer questions she asked during the oral reply."
#3 What is wrong with the following statements listing the articles and sections violated in the contract?
A "Management violated Article 31, among others."
B "Management violated Article 31, Section 4 (A) (3) (iii)."
C "Management violated all the articles and sections related to performance appraisal."
D "Management violated Article 12, Sections 3 and 4, Article 15, Section 1, and related laws and regulations such as the prohibited personnel practices checked on the attached sheet."
#4 What is wrong with each of the following remedy statements?
A "We want the employee to get everything she lost by management’s error."
B "Given the violation of the contract, we want retroactive promotion."
C "We want the grievant to get reimbursed for the annual leave she had to take instead of sick leave and any other remedy deemed appropriate."
A common error stewards make is that they do not request a broad enough remedy to correct the grievance. When they make a limited request at the first step, many arbitrators will feel like they cannot award everything the arbitrator feels appropriate because the steward only requested limited things. Below is a list of some things to request in connection with certain types of grievances. It is not a complete list, but only intended to jog your thinking.
PROMOTIONS- Retroactive promotion and back pay should always be requested along with priority consideration.
PERFORMANCE The award of specific scores in specific elements
EVALUATION- or the reevaluation of the grievant.
OUTSIDE Money to make up for income lost or the right to
EMPLOYMENT- work in the future.
OVERTIME- Money to make up for the overtime pay lost, not just the opportunity to work the time you missed.
TRAINING- Assignment to or selection for the next training class similar to the one you missed.
LEAVE- Reimbursement for all the expenses the employee incurred as a result of the leave denial as well as the retroactive grant to leave.
DISCIPLINE- Expunge all records, pay the employee for all time or salary lost, and undo any other harm to his reputation or benefits.
STEP INCREASE Retroactive step increase.
AWARD- Retroactive award along with a retroactive grant of promotion points that the employee may have missed.
DETAILS- Retroactive pay for temporary promotions missed along with credit for time served at the higher grade.
PROHIBITED PERSONNEL PRACTICE Retroactive pay and benefits, an agreement to cease and desist, appropriate discipline of the manager.
UNFAIR LABOR Retroactive pay and benefits, posting of a cease and desist agreement throughout the workplace, return to the status quo, an agreement to bargain.
Whenever you are requesting back pay, allowances or other benefits, the law provides that the union can get attorney fees. You should request attorney fees in your grievance not just to protect our right to claim them, but also to underscore for management the costs of letting the grievance go so far that union attorney's have to get involved. Finally, whenever requesting back pay, allowances or other benefits, the law provides that the employee can get interest on the back pay he/she is owed from the date he/she should have been paid. Mention this in the remedy statement as well.
What remedy would you request for the hypothetical case described at the beginning of Section V?
Before we look at some specific tips about how to present a grievance, let’s talk about the purpose of the grievance presentation. List some reasons why we have these meetings as opposed to just exchanging paper.
Below are listed some tips you can follow when presenting the grievance.
1 Open the meeting by stating that you see the meeting as a "problem-solving" meeting and that you are most interested in solving the problem as the lowest level and at that step. Try to relieve the manager's anxiety and defensiveness. Perhaps you point out some joint interests the parties may have, e.g., in a safe and healthy building or a fair and credible promotion process.
2 To avoid being put on the defensive at the outset by having to answer management's questions, you might want to have a list of some questions of your own that you want answered in the meeting. See the "Investigating the Grievance- Questions for Management" portion of this manual.
3 Work out a plan in advance with the employee/grievant to make it clear when he/she is to speak and when you are to speak. Try to calm them down and have some signals or a process for cutting the employee off if the meeting gets out of hand. On the other hand, make sure that the employee has an opportunity to participate in the meeting. After all, this is his/her day in court. At all times, be supportive of the employee and avoid looking like you are in the middle.
4 If the manager goes on the attack in the meeting, warn him/her about the fact that such behavior can be considered an unfair labor practice. If the behavior continues, cut the meeting off and leave. Then, consult the chief steward to see what action the union wants to take against the manager. You might want to set up a separate meeting with the manager and chief steward later to talk about the manager's reaction and the cause of his/her resistance, but do not try to do it when the grievant is in the room.
5 Make sure when scheduling the meeting that everyone has enough time to go over the case. Also get some private space where you will not be disturbed.
6 Try to get access to the relevant documents before any meeting or at least at it some the parties know what they are talking about.
7 When the manager states a conclusion, ask why she believes that and what documents/ evidence might exist to prove that. Then get those documents.
8 Make a record of all of management's defenses or explanations and try to establish a list of common views of facts held by both sides. Use the explanations to identify documents/ evidence you need and assess the strength of your case.
Describe how you might prepare for a grievance meeting assuming you have all the documents you need. Look first at a "First Step" meeting, then talk about a "Final Step" meeting.
First Step Meeting
Final Step Meeting
How would you respond to these situations?
#1 As you begin the meeting, the manager apologizes saying that he can only stay for 15 minutes because he has been called to an emergency meeting with his manager.
#2 Ten minutes into the meeting, the manager says that she would rather hear about the problem from the employee than from the steward. She says she intends no offense, but she thinks she will better understand the problem if stated in the employee’s own words.
#3 After you answer the manager’s question about why the union thinks a retroactive promotion is the appropriate remedy, the employee interrupts to say that he would be willing to take even a priority consideration if management will promise that he will get selected soon.
#4 The manager ends the meeting by asking for an extension to provide her written response.
#5 The manager asks to see the witness statements and notes that you mentioned when telling her that you have witnesses who will refute her version of the facts.
#6 The manager opens the meeting by saying that she would prefer it if the union listed all of its arguments and evidence in this meeting, and that she will respond after the meeting in writing. She is not prepared today to engage in a conversation about the case.
Interest-based bargaining and other approaches to solving problems have shown that an employee’s representative can do a number of things to promote settlement of a grievance. NTEU is encouraging their use by agreeing to establish "informal grievance steps" which generally are grievance meetings filed without the need to file a formal written grievance. This seems to reduce management’s defensiveness and opens the door for us to use some other tactics to encourage settlement or a creative solution.
Here are some situations that present a typical approach. Look at them to see what you could do in the alternative to promote problem-solving on both sides.
#1 The steward opened the meeting accusing the manager of violating the contract. After that, it seemed all down hill and nothing got done.
#2 The steward knew that the employee was filing a grievance because he was frustrated that he was not getting promoted. To help him, the steward filed a grievance charging the first line manager with violating those portions of the contract defining how appraisal scores are awarded. When the meeting was held, the steward started talking about getting documents he needed to make his case of disparate treatment.
#3 The grievance was about AWOL. The manager had started charging the employee with AWOL after her leave ran out and he had given her 24 hours of LWOP. The employee did not think it was fair because others were not given AWOL even though they have no leave and have taken some LWOP. So, the steward began the meeting by alleging a violation of the employee’s contract rights and past practice. The manager said he wished he did not have to impose AWOL because he likes the employee and she is a good worker. However, they could never get agreement on a settlement.
#4 The manager said that she would be willing to reevaluate the employee using the new information the steward gave her, but the steward said that unless she promised a higher evaluation he would have to file the formal grievance because the deadline was running out.
A union possessing exclusive recognition status must fairly, impartially, and in good faith represent the interests of all employees in that unit, whether those employees are union members or not. They call this requirement the Duty of Fair Representation. A union representative's failure to fulfill this requirement could result in a bargaining unit employee filing of an unfair labor practice charge or lawsuit against the Union. Consequently, all NTEU representatives must perform their duties in a fair, impartial, and consistent manner, in order to protect the rights of all unit employees.
To ensure that all NTEU representatives fulfill their obligations under the Duty of Fair representation, they must:
A. represent the interests of all employees in the unit, regardless of union membership status.
B. not waive, ignore, or attempt to change an employee's benefits and rights guaranteed by the clear language of the contract.
C. settle similar grievances in a consistent manner as far as possible, recognizing the Union's right to interpret ambiguous contract language as it determines proper.
D. not refuse to process a grievance for improper and illegal reasons, such as social prejudices, personal hostility, or union membership status.
E. consistently apply the standards used for determining whether to process a grievance or submit it to arbitration.
F. exercise care and diligence in investigating whether a grievance should be filed, processing the grievance, and presenting it to management. In other words, in each case, the union officer or steward should conduct a thorough investigation to determine whether a violation actually occurred, comply with all time related processing requirements, and never act in a manner which would allow another person to infer that the representative could care less about the resolution of the issue.
G. never agree to withdraw an employee's grievance in exchange for settling one or more other grievances, without that employee's concurrence.
H. properly and fully document all actions, and related rationale, associated with handling employees' cases in order to respond to future questions or challenges.
It is also important that you understand when NTEU representatives do not have a duty to always represent employees. In recent decisions, the U.S. Court of Appeals and the FLRA have identified situations where NTEU has no duty of fair representation. Specifically, in cases where employees are subjected to severe disciplinary action or are fired for conduct or unacceptable performance, they may challenge such actions via statutory appeals procedures. NTEU has no duty to represent employees in this forum since it was created by law, not via the collective bargaining process. However, as a benefit to a member, we will provide the services of an NTEU National field Representative/Assistant Counsel to defend meritorious cases at no cost.