NTEU Dispute Addendum
Investigating the Dispute
Writing the Dispute
Requesting Dispute Remedies
Interest Based Dispute Resolution
I. IDENTIFYING DISPUTES: IS IT A DISPUTE?
AN NTEU CHECKLIST
The dispute resolution 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 dispute resolution procedure. Despite the above, the incident is not a dispute 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 dispute resolution 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 Dispute Resolution Procedure article of your contract.
Where the dispute resolution procedure covers discrimination complaints, adverse, or unacceptable performance actions, covered employees may use either the negotiated dispute resolution 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.
II. SPOT CHECK- Identifying Disputes
Below are listed several situations where a dispute may or may not be filed. Read each and decide whether a dispute 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 dispute?
- 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 dispute?
- 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 dispute?
- 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 dispute?
- An employee wants to dispute the first notice that they may deny her within-grade increase if her performance does not improve. Is it a dispute?
- 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 dispute?
- 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 dispute?
- 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 dispute?
NTEU DISPUTE ADDENDUM
In addition to our general allegation that claims violations of all laws, rules and regulations related to the nature of the dispute, 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)) (See Article 6, Sec.2 of the National Agreement)
___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 violation of any law, rule, or regulation; or
- 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 violation of any law, rule, or regulation, or,
- mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
___ 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 CSRAct of1978.
III. SPOT CHECK- Applying the Dispute Addendum
Let’s just check to make sure you understand how to use the NTEU Dispute 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 dispute?
#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 file a dispute 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 CF-306, "Appraisal for Promotional Opportunities" 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 on his team who the manager wants to help get promoted.
#4 Management has just announced a change in the way that teams are assigned lunch break periods. They claim this is necessary to avoid overcrowding and to create more room at tables. Is this a dispute?
IV. INVESTIGATING THE DISPUTE
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 dispute here, but you need to think now about the investigation of the dispute. 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 DISPUTE
Employee and Employee Witness Questions
Basically, when dealing with an employee who wants to file a dispute 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 dispute?
___ 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 on your team 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 DISPUTE
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.
- Do we have any similar cases to this now in progress in other work areas?
- Have we had similar cases in the past and how have they turned out?
- Do we know if we have ever arbitrated a case like this and, if so, what was the result?
- Is this a case where there may be "bargaining history" I should know about? If so, how do I find out.
- 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 DISPUTE
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 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 dispute or potential dispute.
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 DISPUTE
Accessing Agency Records
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 dispute or that will help you argue and understand a dispute 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 DISPUTE
Typical Documents to Access
Below are listed some examples of typical documents you might consult when you have a dispute related to the topic.
PROMOTIONS- The complete promotion file.
PROFICIENCY- The Employee Personnel File (EPF), the employee "drop" file, the
REVIEW 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.
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
- 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.
- 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.
- 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.
- 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.
- Third, is your demand necessary, not just useful, to the negotiations of or disputes over a contract. This includes getting information to help you decide whether to file a dispute or invoke negotiations. In some cases you need a particularized need.
- Fourth, you cannot get access to information which management uses to advise other managers how to conduct specific collective bargaining responsibilities.
- If denied the information, you can file a ULP with the FLRA, file a ULP dispute citing a violation of Section 7114, add this issue to an existing dispute, or file a related request under FOIA or Privacy. You can even publicize the denial among the members claiming a cover-up.
- 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:
- 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 dispute, prepare or process a dispute 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
V. SPOT CHECK- Information Request
#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?
VI. WRITING THE DISPUTE
Generally, you want to use the form provided in this manual when filing a dispute. Below are listed some tips to follow when completing the form.
- Do not write it so specifically or narrowly that you exclude other events and information that might come to light as the dispute progresses. For example, never describe the nature of the dispute 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.
- Be sure to cite all possibly related portions of the contract. Also mention any related laws, rules and regulations. Use the NTEU Dispute Addendum.
- 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 dispute "By the union on behalf of employees."
- 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.
- Avoid statements of anger or accusations that will only get in the way of the formal processing of the dispute. Save these for meetings if they must be made.
- Never concede anything related to the dispute in the written dispute. That can come later.
Can you think of other rules stewards should follow? Have you seen errors that more advice here could correct?
VII. SPOT CHECK- Writing the Dispute
#1 Look back at the hypothetical dispute case that is at the beginning of Section IV "Investigating the Dispute." How would you write the part of the dispute where you are describing the nature of the violation? Check the NTEU Dispute 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 dispute"?
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 proficiency review."
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 employee to get reimbursed for the annual leave she had to take instead of sick leave and any other remedy deemed appropriate."
VIII. REQUESTING DISPUTE REMEDIES
A common error stewards make is that they do not request a broad enough remedy to correct the dispute. 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 disputes. 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.
OUTSIDE EMPLOYMENT- Money to make up for income lost or the right to 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 Retroactive pay and benefits, posting of a cease and desist agreement
LABOR throughout the workplace, return to the status quo, an agreement to bargain.
PRACTICE
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 dispute not just to protect our right to claim them, but also to underscore for management the costs of letting the dispute 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 IV?
IX. INTEREST BASED DISPUTE RESOLUTION
The contract’s disptue resolution procedure is designed to encourage the resolution of disputes through the use of interest-based problem solving which is designed to find a solution to a dispute which satisfies the interests of both the employee and the manager involved in the dispute.
Interest-Based Dispute Resolution Definitions
Issue - A subject of discussion: the problem to be solved.
Interest - One party’s concern, need or desire behind an issue; why the issue is being raised; why it is so important.
Position - One party’s proposed solution to an issue: how they see it being solved.
Alternatives - Potential solutions that can satisfy interests.
Criteria - Standards, principles, benchmarks or indicators for evaluating alternatives to determine what an effective solution would look like.
Consensus - An agreement by all the members of a group. It is not necessarily an instant agreement, but one arrived at through discussion, persuasion and compromise. All can "live with" the result. It is a meeting of the minds.
Solution - The alternative (or combination of alternatives) that satisfies more interests and criteria than other alternatives the group is able to generate.
A Typical Case
Inspector Larry Hopeful, assigned to the Port of Lonely Pines, is an energetic, intelligent and dedicated 15-year employee of the Service. Because of these qualities and his skills at writing, organizing, planning and trouble shooting, Hopeful is asked to serve on many teams throughout the Service. He has traveled extensively in the United States and to some foreign ports over the past few years.
Last week, during a routine audit of the American Express printout of overdue charges, Hopeful’s supervisor, Doug Jones noticed that Larry had an outstanding balance of several thousand dollars. Upon further investigation, Jones discovered that Hopeful had recently used his Customs-issued American Express credit card for personal purchases. Jones was upset when he discovered this because, six months earlier, Hopeful had used the Customs-issued card for personal purchases of Christmas gifts for his five children. At that time, Jones had counseled Hopeful and warned him not to do it again, otherwise he would suspend him for 14 days. Jones had some sympathetic feelings for Hopeful who was supporting two children by his first marriage and three children by his second marriage. At that time, Hopeful promised he would not use the card for personal use again.
Jones looked at the list of Hopeful’s purchases which incldued diapers and formula, a pair of eyeglasses, a baby crib, a stroller and a high chair.
Jones knew that he had warned Hopeful and mentioned the 14 day suspension. He also knew that 14 days without pay would be a financial disaster for Hopeful. Jones began to agonize over what he should do, and Hopeful’s likely reaction.
- What are Larry Hopeful’s Interests?
- What are Doug Jones’ Interests?
- What criteria should be used to evaluate an effective solution?
- What alternatives would you suggest to satisfy Larry Hopeful’s interests?
- What alternatives would you suggest to satisfy Doug Jones’ interests?
- What solution(s) would you recommend?