OVERVIEW: After a brief refresher of the fundamentals of grievance handling, this class will address the various strategies for presenting a grievance.

OBJECTIVES: At the end of this class, the participants will be able to do the following:

2. Discuss the various strategies available for presenting a grievance.

3. List the primary things that get in the way of a good presentation of a grievance.

REFRESHER QUIZ: Read through the following description of a grievance and identify at least five things that could have been improved.

Gail Hernandez has been a union activist for five years and currently serves as the union designee on the local joint EEO committee. Last week she went to see Barry Kelly, the union steward in her area, because her manager had denied her some overtime opportunity that she thought should have been hers. Gail outlined how this is the third time in the last month this has happened and how the manager also seems to be doing this to the other two women in her group who also should have been given overtime opportunities that they were not. Gail says that about three weeks ago this guy made a comment to the other two women that he would not give any women nighttime overtime because the neighborhood was too dangerous. Barry realized that the Gail was not getting her fair share of overtime and immediately filed the attached grievance.

NTEU GRIEVANCE FORM

Grievant(s): Gail Hernandez Date: 2/14/99

( ) And other similarly situated employees.

General Nature of the Violation so:

Gail was not given her fair share of overtime on the night of 2/13/99.

Article 18 (Overtime), Section 2 (B) (1) (iii), i.e., overtime should be distributed fairly and equitably.

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.

She wants an apology

Union Representative: Tele. No.:

Barry Kelly X-6411

NTEU GRIEVANCE FORM

Grievant(s): Date:

( ) And other similarly situated employees.

General Nature of the Violation so:

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.

Aside from those remedies specifically mentioned in this grievance, we also request any other remedy deemed appropriate by proper authorities.

Union Representative: Tele. No.:

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 other-,vise 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 23 02 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

PROHIBITED PERSONNEL PRACTICES (5 USC Section 2303 (b))

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.

C. Coerce the political activity of any person (including the providing of any political contribution or service), or take @y action against any employ= or applicant for employment as reprisal for the refusal of any person to engage in such political activity.

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.

for:

1. Take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal night 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.

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.

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)

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.

There are three laws that give the union access to agency records. These are the,

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.

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

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

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.

IX REQUESTING GRIEVANCE REMEDIES

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

STEP INCREASE Retroactive step 'increase.

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.

PRESENTATION VARIABLES

No matter how good of a presentation you make, nothing is going to be settled unless you deal with the manager's fears. So, lets take a minute to think about what is going on inside the head of a manager when he or she is confronted with a grievance. Listed below are some interests, needs or concerns a manager usually has when a grievance is filed. Can you think of any others?

involving others. The more managers are involved the less control she has and the more know what she did wrong.

7.

8.

9.

What follows are two grievance presentations. Read both and try to identify why one is more likely to settle. Relate what you find the to Management Fears we just covered above. Present in the meeting are the manager (Mgr), the steward (Ste), and the Grievant (Gri).

put in our written grievance. Basically, you violated about a dozen provisions in the contract and law when you failed to give the grievant the overtime assignment she was entitled to. In fact, I was telling some other folks in this group that about the only law you did not violate was the

Louisiana Purchase

Agreement.

Mgr- You know, I do not

know a lot about the

technicalities. Could you

go through each one of the

alleged violations and tell

me more about it.

Ste- Frankly, I am not

prepared to give you

details on each one and I

think it is your labor relations staffs' job to tell you about details. If you are not capable of handling this grievance we can move it

Mgr- Come on in and sit down. I would like to hear what you have to say about this grievance.

Ste- Let me try to focus on the heart of this grievance without getting tied up in all the details. You scheduled overtime for the nights of January 22, 23, and 24. From what I can tell, everyone who worked that Might got three hours of overtime each might. The grievant did not work any of those nights and we do not know why? Can you tell us?

Mgr- I am not prepared to tell you that off the top of my head. I will have to look into it.

Ste- I think that is a good idea and I am glad you brought it up. Could we work together on this to get the facts for both of us. Would you get a list of who worked those nights and how much time? Then I think we need to know who was considered and how much seniority they had. Can you get both of those for us to jointly review?

Mgr- Yes, I can and I will have them for you by Monday. However, I need some help understanding the grievance. Tell me what I specifically violated.

forward right now. You can

go back to thinking about your next break and who you will go with.

Mgr- Well, maybe you can give me some details about when I did this. Your grievance form is vague. Perhaps the grievant could tell me. She and I have always had a good relationship and I respect

the details of when and how all you have to do is look at your records to see when you distributed overtime and what the grievant's entitlement was that night.

Gri- I have some of those details written out on a sheet that I could give him if it is okay with you.

Ste- No, save them for the branch chief meeting.

Mgr- Well, if we cannot talk about the details of the grievance, then let's assume for a minute that I review the records and find that the grievant should have been given some overtime she was not. What do we do to fix that?

Ste- Again, I have to say look at the contract and my grievance form. We want the right thing by her.

Ste- We cited some provisions of the contract which require that when distributing overtime that you offer it first to the most senior employee if she has worked less overtime than the next most senior person. We contend that you did not do that in this case. There are also some allegations of laws and regulations you violated but that is the core of this case.

Mgr- Is that all?

Ste- In my experience it is better to start these meetings by focusing on the core of the problem. If we cannot settle just by looking at that, then I will be glad to go over some of the fine points later. For example, we are also alleging that your error may have been motivated by sex discrimination since we have witnesses who said that you will not give overtime to women right now because the neighborhood is so dangerous at night. Do you recall saying that?

Mgr- That is not what I said.

Ste- Listen, I do not want to turn this into a federal case. We do not need to drag the lawyers from either side into this. I have a suggestion as to how we can settle this if you are willing to give her back pay for the missed overtime.

Mgr- I am listening.

Ste- Why don't we let the grievant describe a possible remedy. She knows our group well and has a good idea.

Gri- Although I am asking for

retroactive

back pay, interest, an apology, and an agreement that you will never violate the contract again.

Mgr- Yes, I see all that, but would you be open to some other way of compensating her if I agree I violated her rights?

Ste- Nope. That might set a bad precedent and we want this case to set a good precedent that we can use every time this happens.

So, when can I expect your denial of this grievance so we can file our appeal?

Mgr- We are having this meeting late and I only have five days to get you a written response. Could I get an extension to look into to some of the allegations.

Ste- I do not give extensions. If you do not have the time for this employee who does good work for you everyday, then maybe your bosses will. I think we are finished here.

Mgr- Well, feel free to call me if you change your mind and we can talk more about this grievance. The grievant is one of my best employees and I want to do

Gri- Well, I am asking for retroactive pay for the nine hours of overtime that I should have worked. At time and onehalf pay, that works out to be thirteen and one-half hours of pay. I would be willing to take the same time in credit hours or compensatory time.

Mgr- How about me just giving you the next nine hours of overtime?

Ste- No that would take it from someone else. Let me give you some other thoughts on how to settle this quickly. if you give her the 13 hours of credit hours, she will use then the need of this pay period. If you do that and she does that and the time sheets go in that way, we 'II w' draw the grievance. There will

with 1

be no need for anything in writing by you.

Mgr- How can I just give her 13 hours of credit hours?

Ste- We will all have an "understanding that for the next four nights she is working three credit hours a night at home. You will credit it, and she will use them the same pay period.

Before I leave let me say four things. First, she is one of your best employees and you should want to make sure she gets the benefit of the doubt. Second, we want to work with you to settle this at your level. Third, we are willing to help you avoid getting a back pay check approved. Fourth, we are willing to close out this grievance without any written precedent. All of that is good for you. Let us know. Thanks.

Read each case and analyze the strategy assigned to you in terms of its advantages and disadvantages. In other words, is it a good presentation strategy or could it be in certain circumstances?

Case A. An employee asked for 5 days advanced sick leave to take care of her child who is recovering after an appendicitis operation. The employee has not previously used any sick leave during this leave year to care for a sick family member, but she does not have any sick leave because she just returned from maternity leave. The employee's request comes back denied with the statement, "DENIED. Cannot use advanced sick leave for Family Friendly Leave Act or Family Medical Leave Act. "

Strategy 1: Talk to manager informally before you file a grievance, assert that the employee has a right to use advanced sick leave for this purpose, but do not provide the manager with any regulations or contractual language because it is the manager's job to look this up.

Strategy 2: Talk to the manager informally before you file a grievance, review your contract provisions concerning advanced sick leave with the manager, and provide the manager with a copy of the Federal Register excerpt (59 FR 62270) that explicitly states that sick leave can be advanced for this purpose.

Strategy 3: File a grievance, obtain medical documentation of the appendicitis condition from the employee, outline your grievance presentation, and provide the manager with all the relevant documents concerning the Family Friendly Leave Act and the FMLA.

Strategy 4: File a grievance, make an off-the-cuff presentation at Step I where you simply assert that the manager is wrong, and wait to make your full presentation at Step 2 with your contractual and Federal Register documentation.

Case B. An employee receives an annual performance appraisal that is lowered in two critical elements. The employee has written a rebuttal to the appraisal and attached a substantial amount of documentation. The employee says that the manager did not give him any counseling or mid-year appraisal during the year indicating that his performance was dropping. And the employee says he believes the supervisor is retaliating against him because he testified against the supervisor in a arbitration hearing involving an incident with another employee in the unit.

Strategy 1: Talk to manager informally before you file a grievance and explain why the employee's appraisal should be raised, focusing on the lack of counseling and failure to let the employee know of the problem, without showing the documentation the employee has compiled to the manager.

Strategy 2: File the grievance, cite a PPP (prohibited personnel practice) as well as violations of the Union contract, obtain statements from co-workers detailing specific instances where they saw the manager has acted negatively towards the grievant since the arbitration hearing, and, at the Step I meeting present all the information in a highly structured fashion.

Strategy 3: File the grievance, and at the Step I meeting focus only on the failure of management to keep the employee informed throughout the year about his performance and do not present other documentation concerning the employee's performance or retaliation at Step 1.

Strategy 4: File the grievance, obtain witness statements from co-workers, request to waive the grievance to Step 2, and present all the evidence in an organized, structured fashion to the Step 2 official

Case C. There was a major snowstorm in your city, which closed some roads, snarled traffic and caused delays and cancellations of bus and train service. Many employees report that they diligently tried but were unable to get to work. Management is denying administrative leave across-the-board, saying that each employee's difficulty was caused by "circumstances particular to the employee" and not the weather. You learn through a friendly manager that the directive to deny leave is coming straight from the director's office.

Strategy 1: Talk informally to the manager of each employee who is denied administrative leave to try to convince them to grant the administrative leave.

Strategy 2: Ask employee to write a statement explaining in detail the efforts he or she made to get to work, file an individual grievance for each employee, and begin the grievance process for each at Step 1. Take each employee to his/her grievance meeting

Strategy 3: File a grievance on behalf of "all affected employees" with each manager who had a least one employee denied administrative leave, and request to combine the grievances and waive to the appropriate Step 2 official (or file as a "group grievance" if your contract has such a provision). Get written statements from each employee detailing his or her efforts to get to work and present these at Step 2.

Strategy 4: Raise the issue of the blanket denial of administrative leave at the next Partnership

Council meeting and discuss your and the director's understanding of the criteria for granting administrative leave for inclement weather, and report the discussion in the local newsletter. Also, organize a well-publicized lunchtime event where employees have a chance to tell about their "hair-raising" attempts to get to work. Do this in conjunction with filing grievances so as not to miss any time limits.