Grievances - AFGE Local 3509

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Grievances
By William Ossmer
General Principles
What Is a Grievance?
Article 24, Section 2 of the National Agreement defines grievance this way:
1. By an employee(s) concerning any matter relating to the employment of the employee;
2. By the Union concerning any matter relating to the employment any employee; or
3. By any employee(s), the Union, or the Administration concerning:
a. The I effect or interpretation, or a claim of breach, of a collective bargaining agreement;
or
b. Any claimed violation, misinterpretation or misapplication of any law, rule or regulation
affecting conditions of employment.
Exclusions from the Grievance Process
The 2005 contract specifically excludes the following from the grievance process
1.
2.
3.
4.
5.
any claimed violation of 5 U.S.C. 73 relating to prohibited political activities;
retirement, life insurance or health insurance;
a suspension or removal under 5 U.S.C. 7532 relating to national security;
any examination, certification, or appointment;
the classification of any position which does not result in the reduction in grade or pay of an
employee;
6. non-selection for non bargaining unit positions; or
7. non-selection for bargaining unit employees from amongst properly rated and ranked
candidates with the exception that employees may file grievances alleging unlawful
discrimination as defined by Title VII. However, employees may file a grievance for nonselection from the exercise of a priority consideration. Employees may also file either a
grievance or unfair labor practice, but not both, alleging anti-union animus.
How Does the Grievance Process Work?
A grievance can be initiated by a bargaining unit employee, the Union or the Administration. An
employee who files a grievance can elect to be self-represented or choose to be represented by a
designee of the Union. If an employee elects Union Representation and the Union agrees to
represent that employee, all communications regarding the grievance must be made through the
designated Union Representative. Please note that the Union decides whether or not to represent an
employee based on the facts of the case. The Union also designates who the Union Representative
will be for each case.
There are three steps to the grievance process unless one is dealing with a Union management
grievance. A Union initiated grievance has only one step. If a grievance is not resolved through the
grievance process, arbitration must be considered. It is important to determine the proper
management official to whom the grievance should be submitted. The chart in Article 24, Section 9,
of the National Agreement shows who the proper official is.
A grievance concerning a continuing practice or condition may be presented at any time. An
employee grievance concerning a particular act or occurrence must be filed within 15 working days of
the action or of date the employee became aware of it. An employee who files a grievance alleging
discrimination may first discuss the allegation with an EEO counselor. This discussion must take
place no longer than 45 calendar days after the alleged event or the date the employee became
aware of the event. Once the EEO investigation is complete, the employee has 15 working days from
the date of the EEO counselor's decision to file a grievance. If an employee alleging discrimination
chooses not to use the EEO counseling procedure, any grievance on this issue must be filed within
45 days of the event that gave rise to the allegation or after the date the employee became aware of
the event.
The standard form used to file grievances in SSA is form SSA-2048. While it is not mandated that
this form be used to file a grievance, it is preferred. However, it is essential that a grievance be
submitted in writing. A grievance will not considered as having been filed based upon an oral
statement only. It is, therefore, essential that the grievance be reduced to writing and timely
submitted to the appropriate management official. The grievance should also indicate whether or not
an oral presentation of the grievance is being
Escalating the Grievance
If management fails to meet any of the time requirements specified in the Contract the
grievance can be escalated to the next step of the grievance process per Section 12, Article 24 of the
National Contract. But carefully weigh the benefit of obtaining a decision from the appropriate
management official versus the benefit of escalating a grievance in such a situation. If management
does not give the grievant an opportunity to make an oral presentation (if requested) within the
required time or does not issue a decision in writing within the required time, the grievance can be
escalated to the next level upon the request of the grievant. Conversely, if the grievant fails to
escalate a grievance timely, the grievance is terminated. Therefore it is of the utmost importance that
the grievant or representative timely escalate grievances if a fully favorable decision is not received. If
management does not make a decision on a grievance and the grievant does not escalate the
grievance, it remains open indefinitely per Section 12C of the National Contract. All deadlines can be
extended by mutual consent. If you are requesting an extension of a timeframe, be sure to do so in
writing. If management agrees to an extension, be sure this is in writing also.
Article 24, Section 5 of the Contract requires management to settle grievances promptly. However,
management suffers no penalty for failing to do so. If they continually fail to process grievances
according to the timeframes stipulated in the National Contract, the Union has the option to file a
grievance on their violation of this portion of the Contract.
Completion of the Grievance Form SSA-2048
This form is two sided. The reverse side is for the disposition of the grievance. This is where
management normally responds in writing to the grievance. This part of the form is also used by the
grievant to request that the grievance proceed to the next step. When completing an SSA-2048 two
copies of the front side should be made: one for the Union; the second copy is the employee's copy.
Please bear in mind that a grievance is submitted in writing and on time to the proper management
official is valid even if form SSA-2048 is not used.
The actual completion of SSA-2048 is self-explanatory. The "Description of Grievance" should
include a brief synopsis of the issues involved. If a breach of the Contract is involved, cite the specific
sections violated. If there has been a violation or misapplication of any law, rule or regulation, then
cite the applicable law, rule or regulation. This will strengthen your position and clearly communicate
your position to management. However, since a grievance can be any complaint concerning any
matter relating to the employment of the employee, there does not have to be a contractual or
statutory violation before a legitimate grievance can be filed. It is best to be succinct and factual in
describing the grievance. If an oral presentation has been requested, many of the relevant details
surrounding a particular grievance can be filled in at that time. Provide sufficient information to show
clearly how the specific violation occurred, but do not give so much that you confuse the important
issues.
The section entitled "Relief Sought" is extremely important. This is the portion of the form in which the
grievant informs management what is being sought to resolve the issue. Remember: you are not
likely to get anything you do not ask for. It is usually best to ask for more than you are willing to settle
for. However, be sure that the relief sought is both rational and within the realm of possibility. When
management provides the "relief sought" stated in the grievance, the grievance is then considered
fully resolved. Therefore, clearly specify all the conditions needed to satisfy the grievant. You can
always accept less than what you requested but management will rarely concede more.
The 2005 contract requires that, before the last step of the grievance process, the written
grievance must:

clearly and specifically describe the matter(s) being grieved, including the date/place of the
occurrence and the individuals involved.

The written grievance must also identify the article(s), section(s) and provisions(s) of the
agreement that are involved,
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explain the alleged violation and
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state the requested relief.
Grievances are being denied based solely on the lack of this information
Union Management Grievances
Article 24, Section 10 of the National Contract allows the Union to initiate a grievance on its own.
Union--Management grievances cannot be initiated by an employee. A Union-initiated grievance filed
at the local level will be submitted to the appropriate manager or designee. The grievance must be
submitted within 25 working days of the disputed action or of the date the Union became aware of
the action unless the grievance concerns a continuing practice. A Union management grievance
concerning a continuing practice can be submitted at any time.
This is a one-step grievance process. If the grievance is not resolved at this -level, the Union can
invoke arbitration within 30 working days after receipt of the final decision. This type of grievance is
not escalated to a higher internal agency component after the first stage. If the agency's decision is
unfavorable, the only option is to invoke arbitration.
Steps to Take Prior To Filing a Grievance
1. Talk to the grievant and all other involved parties. Get the facts and ask questions. Don't forget
the four W's "Who?", "What", “ When?'', and "Where?" Obtain statements from all material
witnesses.
2. Obtain any and all documentation dealing with the issue in question.
3. Obtain, review and analyze any relevant portions of the contract, law, agency regulations,
MOU's, POMS, MSOM, etc.
4. Consider all the options available to resolve the issue such as filing unfair labor practice
charges or appealing to the EEOC, or Merit Systems Protection Board. Be sure to remember
that filing a charge in one of these venues prohibits you from filing the charge in another
venue.
5. Review the SF-7B file and copy the complete file if relevant.
6. Request any information needed per 5 USC 7114(b)(4). This request should be in writing and
should not be included as part of the grievance. The value of this cannot be overestimated, as
it is the Union's opportunity to obtain information needed to vigorously pursue its case. Many
times this information will also enable you to determine the agency's rationale for taking a
particular action.
7. Evaluate your case:
 Review the pros and cons of your case realistically and objectively.
 Order your thoughts
 List your main issues and arguments.
 Discuss the case with other Union Officials to obtain their perspective and feedback.
The knowledge and experience of our own officials is a valuable resource that should
not be overlooked.
Oral Presentations
The value of an oral presentation cannot be overestimated. However, there may be times when you feel the
value of such a presentation is limited because you have already fully discussed the issues with the
management official involved at a particular level of the grievance process. An oral presentation gives both
parties an opportunity to clarify the issues and to determine areas of agreement and disagreement.
Dialogue may lead the parties to find a common ground resulting in a resolution of the issues
Even when making an oral presentation, it is essential that you provide your arguments to management in
writing. This written presentation is important, as it will reinforce your arguments and will refresh
management's memory when they are making a decision. This is especially important since management may
take many days or weeks after your oral presentation before actually making a decision on your grievance.
Management may have forgotten the main points of your oral presentation by that time. To force them to focus
on you instead of the written document, wait until you until after you have completed your oral presentation
before giving them your written arguments.
After your oral presentation, before closing your presentation, give the grievant an opportunity to add any
relevant comments or ask additional questions. Before your oral presentation it is helpful to familiarize grievant
with the process, the sequence of events, and what you expect of them during this presentation.
Prepare a written outline of your key speaking points in advance, to assist in your presentation. This will insure
that you present your arguments logically and clearly. It will also insure that you do not forget to discuss any
key points.
Processing a grievance requires time, patience and perseverance. Do not become discouraged if
management denies your grievance. Do not expect the decision-maker another management official-to be
unbiased, objective, and fair. Normally, you will find the opposite. Present your grievance with this in mind.
Remember, there are normally three steps to the grievance process . As a last resort, arbitration can be
invoked. Carefully review management's response to your grievance. It may provide you with clues to the
reasoning behind their decision. You can then address these issues as you escalate your grievance. If
arbitration is eventually invoked, management's prior responses should provide clues as to how they will
attempt to defend their actions and decisions. This will enable the Union to better prepare for arbitration by
identifying the relevant and important issues in dispute. This allows the Union to avoid spending precious time
and energy arguing issues that are not in dispute and to focus only on those issues that are germane to the
grievance.
Never make promises you may not be able to keep. Since the results of a grievance cannot be predicted, it
would be foolish to try to do so. Honestly appraise each situation. Avoid exaggerated claims and promises as
not to unrealistically raise the hopes of the grievant. If management makes a good faith offer to resolve the
grievance, consider it and either accept or reject it after discussing it with the concerned employees. It may in
everyone's best interests to accept a settlement offer even if it is less than the relief sought. In making such a
decision, consider factors such as cost, benefit to the employees, time, importance of issues, etc.
The Grievance Process
What is a Grievance
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A contract violation, including violation of past practices.
Any dispute between an employee or the union and management in an area where
management has responsibility.
Any violation or misapplication of any law or regulation affecting employment.
Disciplinary actions.
5 USC 7121 spells out the authority for grievance procedures.
Where a collective bargaining agreement exists all covered employees must use the
negotiated grievance procedure, as the exclusive grievance procedure
Who may file a grievance



Individuals have the right to process their own grievance. However they may not select their
representative. An employee may not insist on using an attorney.
It is the right of the Union to designate the employee's representative if the employee requests
a representative.
The Union has a right to be present during the presentation of any grievance under the
negotiated grievance procedure.
What is the purpose of the grievance and appeal procedures
To enforce compliance with
 The negotiated agreement, including
o Past practices
 Memorandum of Agreements/ Understandings
 Previous grievance settlements
o Laws, and government wide rules and regulations
o Agency rules and regulations

Provide a system for quickly settling disputes

To solve problems

Protect employee rights and fight management injustices against them
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To put the united strength and skill of AFGE behind every member who has a legitimate
grievance
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To give federal employees a voice in setting conditions of employment
Good grievance handling
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Settle grievance based on its merit only.
Settle at lowest possible step. Builds member confidence in the Union and demonstrates
the Union is a problem solver, not creator.
Avoid delays. Delays worry the worker and erode confidence.
Define authority and responsibility clearly.
Keep member informed.
Avoid favoritism; apply the provisions of the contract consistently for all.
Never make promises.
Bring grievant to all possible meetings.
Keep file organized, up to date at the I Union office with posted meeting schedule
What is appealable outside the grievance procedure
Certain matters may either be appealed through the grievance procedure, or other statutory
appeal process, but not both. If appealed through the statutory appeal the Union is no longer the
exclusive representative and an employee may select a representative of their own choice. Some
of these statutory appeals are:
Appeals to Merit System Protection Board for;
1) Removals from service;
2) 2) Suspensions for more than 14 days;
3) 3) Reduction in grade or pay;
4) 4) Furloughs of less than 30 days.
The above 4 items are called Adverse Actions
Appeals to Equal Employment Opportunity Council (29 CFR Part 1614) for violations of;

Title VII of the Civil Rights Act of 1964, 42 USC Section 20OOe-16
o Discrimination on the basis of race, color, religion, national origin, sex, or
retaliation for civil rights activities.
o The Age Discrimination in Employment Act of 1963, 29 USC Section 631
o The Rehabilitation Act of 1973, 20 USC Section 791 Discrimination prohibited
against qualified handicapped individuals and requires reasonable
accommodation where appropriate.
o The Equal Pay Act of 1966, 29 USC Section 206 Prohibits paying of males and
females different wages for equal work.

Whistleblowing
o An individual Right of Action 5 USC 1221 to the Office of Special Council and in
5 USC 2302 to the MSPB.
Investigation
When investigating a possible grievance, a steward must know how to handle the interview
process. Here are some tips:
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RELAX, make yourself and the employee comfortable.
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LISTEN to the employee; let them get the whole story out.
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ASK questions to ensure the employee presents facts and circumstances accurately. You
must understand the situation clearly.
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WATCH for the employee's emotion, be aware of it and do not let it override the facts. Do
not process a gripe as a grievance.
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RECORD -the information Write brief notes of the facts given to-you.

TEST complaint against the contract, past practice, law, rules or regulations.

DISTINGUISH between
1. Problems with contract, law, rule, or agency regulation (grievance)
2. Problems outside the shop or office (gripe)
3. Complaint or misunderstanding with the Local (not a grievance)
4. Argument between employees or members (gripe or grievance).

DETERMINE if there is a grievance. Was there a violation of:
1. The Contract, check it first, it provides greatest coverage
2. The Law, check for specific type of violation
3. An area where management has responsibility
4. Government wide regulations (Code of Federal Regulations, CFR)
5. Agency regulations
6. Past Practice
7. Has the employee been treated fairly.

If yes go to the next step. If no, tell employee NO! Confer with Chief Steward and then
explain WHY NOT to the employee. Do not arbitrarily dismiss the employee's complaint
without first investigating.
Who, What, When, Where, Why, Witnesses
Investigation by definition means a systematic inquiry. What we are going to try to give to you is a
process that will allow you to professionally compile the information needed to win grievances.

1.
2.
3.
4.
5.
Who, refers to clearly identifying the employee, this includes:
Employees name;
Pay or Badge number;
Office, shop or work location;
Classification or position number;
Identification of the Supervisor or Manager responsible,

When, refers to time elements. Outline the dates of all events, including:
1. The time and date grievance occurred
2. The date grievance was written
3. The date grievance was submitted to the immediate supervisor (first step)
4. The date the immediate supervisor responded with a decision

Where, refers to the exact location the grievance took place, i.e. department, shop
machine, etc.

What refers to
1. The action that caused the grievance
2. The corrective action desired. This should request everything needed to correct the
situation since an arbitrator will base an award on this original request. Use of the
terms "make the employee whole" and "or additional remedy as deemed appropriate
by an arbitrator are good inclusive Imam to cover unknowns.

Why refers to why the complaint is considered a grievance.

Witnesses, refers to who may have information or knowledge concerning what happened
Interpreting Information
Interpreting information gathered for a grievance is more simply put as measuring the information.
While distance can be measured in inches, millimeters, feet, yards, meters, kilometers and miles,
and time can be measured in seconds, minutes, hours, days, years, etc., other information can be
measured as it relates to comparing with similar information or circumstances.
Some useful measures of information for grievance purposes include:
Years of service:
Measured in years, months and days
Performance records:
Measured as needing improvement, fully successful, exceeds
successful and outstanding, or other similar terminology depending on
the particular agency you work for and your Local contract
Medical records
Reported injuries, lost work hours
Absenteeisim:
Number of days not at work
Tardiness
Number of times late, number of hours lost from work
Production
Amount produced
Other Jobs Held
Job titles, period of time on each job
Edycation and training
Years in school, training, programs attended, courses taken, degrees
or certificates held
Qulaity of work
Accuracy and quality, annual performance -reviews.
Disciplinary Record
Previous levels of discipline administered, i.e., oral reprimand,
suspensions, etc. Previous levels of discipline administered, i.e., oral
admonishment, written reprimand, suspensions, etc.
Note: Why things happen is more important than what happened.
Clarifying Information
To put the information gathered into the proper perspective, to get a true measurement, it must be
compared with other similar information of other employees in the same working environment. A
steward needs to understand the underlying reasons for the appearance of information. A couple
of examples:
A worker who has been absent seven days in the past year has more absences than a worker
who has only missed five days dues. Any reasonable person would agree that seven is more than
five The steward investigating why the absences occurred discovers that the worker who missed
seven days was hospitalized for a major surgery and all seven days were in a single occurrence,
while the employee who has missed only five days was absent each day before the beginning of a
holiday weekend. The worker missing seven days has a better excuse than the worker missing
five.
A worker's record of production, when compared to other employees in a unit looks very bad. It is
nearly 50% less than the next lowest producing employee. On the surface this looks very bad. The
steward investigating why discovers that the shop foreman has consistently ordered this worker to
do non-productive work during the regular hours of operation. When comparing the actual time
spent producing the measured work, the employee's efficiency of production is on par with the
other employees.
Unclear Information
Stewards need to be aware of terms that are frequently used to describe a person or behavior, but
which have little use in measuring information. We call these terms arbitrary or subjective because
the meaning is subject to individual judgement or bias. Some of these include:
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Ability
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Attitude
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Personality
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Character
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Dependability
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Willingness
Although these terms and others can be defined in a measurable way, they are often misapplied.
For example: "Ability" can be defined in a measurable manner through production records, quality
of work (record of rework), and possibly attendance and medical records. However the word
"ability" alone has very little meaning. A supervisor might say, "I can tell that one worker has more
ability than another."
If it cannot be measured it is nothing more than opinion- maybe accurate, maybe not.
Stewards must insist that supervisors use measurable information when dealing with employees.
For example: A supervisor wants to discipline an employee for marginal work performance and
alleges that the employee has a "bad attitude" toward the work and is not a "team player" with the
other employees. The steward should be asking the supervisor, "Why do you say the worker has
a bad attitude? What happened?" Did the supervisor contribute to the situation? Did this interfere
with the employees work production? The emphasis on FACTS during the grievance investigation
helps cut through the arbitrary and subjective accusations made against workers that otherwise
may be accepted without challenge. One of the great contributions a union makes to a
workers life is to free them from punishment based on a supervisor's unproven and
subjective opinion,
Sources of Information
People:

The grievant
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Co-workers
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Witnesses to the grievance
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Union stewards and officers who can supply ideas about similar past grievances
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The direct Supervisor (boss)
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Other management officials
Always speak to management before you file or present a grievance. Get their views on
information so you have a clear idea of the agency's reasoning. This will also help clarify the
information received from the employee.
Agency records:
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Retention records
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Production records
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Absentee records
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Medical records
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Agency regulations
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Grievant personnel file
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Disciplinary records
Under the law, 5 USC 7114(b)(4), the Union has the right to any information kept by the Agency in
the regular course of business. If they have it, and you tell them you need it, as it is relevant to
your case, they must provide it. There are a number of FLRA cases which define this right of the
Union.
Union Records:
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Union contract
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Contract negotiation file
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Closed grievance file
IRAC
Writing Grievances, Written Argument
The simplest form of written argument follows the format of introduction, regulatory background,
argument, and conclusion. This is known as an IRAC format.
Introduction.
This begins with introduction of the six W's of our investigation. Who was the employee, what
happened, where did it occur, when, what witnesses were present? Outline only facts, and do not
argue any points.
Regulatory Background.
In this portion of your grievance, identify what contract provisions, past practice standards, agency
regulations, or laws govern the condition or circumstances of the grievance. Be specific about
cites, identify by page number, article, and section number of a contract. If referencing a statute,
specifically identify the law and which portion is alleged to be a violation. Outline this information
objectively. Do no go into arguments, interpretation, or assert that management wasn't complying
with a contract or statute.
It's critical that this portion of your document is laid out without bias. If argument is attempted prior
to full exposure of regulations and contract language, your reader will dismiss your evidence.
Don't allow them this luxury. Regulatory background is going to lay the foundation for everything
that occurs afterwards.
Argument.
Finally it's your turn. Here is where you connect the information in the introduction to the
regulatory provisions. Make the allegations over how the condition was created by management
that caused the employee to suffer the condition being grieved. For example, "The supervisor
failed to comply with Art. 21, Sec. 3 and the provisions of Just Cause when the employee was
suspended without a full and impartial investigation."
It's important that the bridge is created between the facts and circumstances to violations of
regulations, laws, contract provisions and past practices. This bridge is your argument and will
make or break your case.
Conclusion.
Finally, summarize the harm to the employee based on your argument. Demonstrate how the
supervisor's actions hurt the employee, and carefully frame the proposed remedy for the
grievance. The remedy should restore status quo and reverse any harm to the employee, or group
of employees. For example, "The Union seeks a remedy of payment of overtime to the employee
because the supervisor failed to comply with the contract. The supervisor failed to contact the
most qualified person for overtime as required by the contract. The supervisor failed to comply
with agency regulation, which requires a minimum of two employees to perform the work.
Grievance Handling
To win a grievance, the Steward must know how to handle the grievance. Here are five additional
tips:
1. Listen to the problem of the bargaining unit member and ask questions to ensure the unit
member presents the facts and circumstances accurately. You MUST understand the
situation clearly.
2. Make sure the complaint is in fact a grievance - not just a gripe. Test the complaint against
the Local contract (including past practices) and agency rules and regulations to see if
there is a violation involved. The Steward should know the kind of complaints or problems
those unit members bring to their union. Some are problems arising within the office or
shop. Others are problems arising outside. You can distinguish between:
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Problems arising under the Local contract and agency rules and regulations;
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Outside shop and office problems;
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Complaints or misunderstandings about the Local;
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Problems or arguments between employees and members.
3. Before writing the grievance, investigate. Double check the facts of the complaint with
whatever records are available with people who may be involved. Check as thoroughly as
you can, but remember, protect time frames for filing the grievance.
4. Write a simple statement of the situation and conclude with the specific relief sought.
5. Present the grievance to the supervisor in a firm but a polite manner. Determine what
management's position is. Argue the grievance and explain the facts of the case. If unable
to win at this point, appeal to a higher step of the grievance procedure. Any points that are
new or weak should be investigated and defended before elevating the grievance.
If you win the grievance, get the settlement in writing and index copies for the Local's files. They
will be useful in handling other grievances. and training other stewards.
If you lose the grievance, appeal and keep the member of the unit informed of the progress of the
case.
It is important that a steward distinguish between a complaint and a legitimate grievance.
Following the same procedure a good auto mechanic follows in attempting to discover why a car
will not run can do this. The mechanic approaches the problem by running through a checklist.
Among other things he or she examines:

Is the battery dead?
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Is the gas tank empty?
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Is the starter switch broken?
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Are the plugs fouled? Etc.
A steward should have a similar checklist to decide whether a grievance exists. The following
points should be checked:
1. Is there a violation of the contract?
2. Is there a violation of a law?
3. Does it involve an area in which management can be held responsible?
4. Is there a violation of agency regulations?
5. Is there a Violation of Past Practice?
6. Has the employee been treated fairly?
When investigating a grievance, it is important to continue a thorough investigation even if you
find a violation. If a plumber were to fix a clogged sink for example, he would not merely clear an
obstruction in the sink plumbing, if there were also obstructions in the main drain, or septic tank as
well. He must address all of the symptoms to insure a lasting repair.
In the same way, a grievance may concern an issue that violates the contract, past practice,
agency regulations, federal personnel regulations (FPMs), and Government wide regulations or
Code of Federal Regulations (CFR) All of these things must be aired for a full and open
exploration of the problem.
Contract violation
Because most of the rules governing the relations of a worker to his or her job are written in the
contract, the steward should look there to see if the employee's complaint is a legitimate
grievance. Some grievances are clear-cut violations of the contract and are easy to prove.
Grievances concerning the interpretation of a contract are not as easy to decide. For example:
suppose the contract reads, "union members will be granted leave without pay for union
business." The local union receives an invitation to attend a conference on health and safety
legislation. It designates three of its officers to attend, but management turns down their request
for leave because the conference is not sponsored by a labor organization. In this situation a
legitimate difference of opinion exists regarding the interpretation of the phrase "union business".
In this case we would have to argue the Union's intent of the language. What kinds of examples
were used at the bargaining table? Who would know that? Were any notes kept of those
examples? Are there any management witnesses to those negotiations that would substantiate
the Union's interpretation? Is there a past practice that would define the ambiguous language?
Violation of a law
For example, present legislation provides all civil service employees under GSA 0, and higher
graded non-administrative or non-executive personnel, are entitled to time and a half overtime pay
unless the individual personally chooses compensatory time off in its place. Other violations of law
could include violations of the Privacy Act, Whistleblower Protection Act, and EEO Laws. Merely
because the agency says it is short of funds does not give it the right to force an employee to
accept compensatory time off, instead of overtime pay, during the week in which overtime is
worked. Failure to allow fifteen-minute breaks once every four hours could also be a violation of
state laws.
Management responsibility
Grievances charging a violation in areas where management is responsible most often occur over
problems involving working conditions and health and safety issues. For example: there is nothing
in the union contract stating that the workplace must be illuminated by a specific number of watts
of electricity, or that the room temperature must be keep at a particular level. However, the union
will argue that management's responsibility includes the maintenance of proper heat, light,
ventilation, etc. and is expected to maintain equipment and machinery in proper condition, and to
provide safe vehicles to drive.
Violation of agency regulations
Where management has established regulations on its own initiative, it cannot legitimately violate
them. For example: A grievance would exist if an employee were told to produce a medical
certificate after two days sick leave when the regulations specified none was needed unless the
leave was for more than three days. (This kind of agency regulation can also be bargained away
through past practice or contract negotiations)
Violation of past practices
Past practices are extensions of the contract. Grievances based on a past practice argument
require careful investigation and presentation since the burden of proof is on the union to show
that the practice exists. A practice can be defined as a consistent response to recurring situations,
over time, which has been recognized explicitly (orally or in writing) or implicitly (management
knew the practice was occurring, but did not object). The practice argument can be made best in
those cases where the contract is silent or unclear. It is often used in respect to grievances over
working conditions, subcontracting and in defining jobs that may affect layoffs. For example:
drinking coffee on the job is customary as long as anyone can remember A new supervisor
appears on the scene and announces that drinking coffee from now on will take place only during
official break periods. In such a case the union would argue that a past practice exists and
management has no right to change such a condition, without negotiating it with the union first.
PS: be ready to negotiate it!
When a complaint becomes a grievance
Not all complaints are legitimate grievances. The steward must investigate the worker's story. He
or she must check the facts to see whether they are accurate. Then the steward must determine if
the worker's rights were violated and must look for the source of the violation. In short, the
steward must check the six points listed earlier. If the steward's investigation shows that the
worker's complaint is justified, the worker has a legitimate grievance. If after investigation the
steward finds the worker misunderstood the contract or misrepresented the facts or the complaint
cannot be regarded as a labor-management dispute, the worker's complaint is not a legitimate
grievance. Sometimes the steward, even after the investigation, will not know if the worker's
complaint is a legitimate grievance or not. Such a case is a borderline grievance.
A borderline grievance
Sometimes a borderline case will arise where even the best steward will not know if a legitimate
grievance exists. For example: a worker draws tools from the tool room during working hours
because they are needed to do the assigned job. The contract provides that the worker can do
this only "when necessary". The worker is reprimanded because the supervisor maintains that the
tools are not necessary for completing the job. It is up to the supervisor to decide what is
necessary. Is the worker right to obtain the tools or should permission be obtained first from the
supervisor? There is no clear answer in the contract to the problem. Therefore, the steward
should believe the employee, and process the complaint as a grievance. The role of the steward
is to act as the "defense attorney" for the people represented rather than as an "impartial judge". If
in doubt about a given case, the steward should check with the chief steward or grievance
committee, but even they may have no clear-cut answers.
Here, the steward investigates the accepted practice by other supervisors and employees in other
shops and work areas. If legitimate doubt remains, the grievance should be filed with the
expectation that the case may become clearer as more information is made available in the higher
steps of the grievance procedure.
Care must be used when filing all grievances. The Local can lose face with its unit members if
gripes turn out to be just gripes and are continuously filed as grievances. The Local will lose
strength in its position with management and its members by filing grievances that are unfounded.
Unjustified complaint- not a grievance
There will also be times when employees who have no legitimate grounds for Previous levels of
discipline administered, i.e., oral reprimand, suspensions, etc. Previous levels of discipline
administered, i.e., oral admonishment, written reprimands, suspensions, etc. amount of overtime
which makes up for the time the employee is short.
It is important that the steward carefully explain why the employee has no grievance, so that the
complaint is voluntarily withdrawn if possible. If the employee is dissatisfied with the explanation,
the steward should point out where, within the union, the complaint can be taken for a higher
decision. In some unions the dissatisfied employee will be referred to the chief steward, in some
unions to the grievance committee, in others to the executive board, and in some cases to the
local union meeting. It is important that the steward is riot arbitrarily dismissing action.
There is danger in processing unjustified complaints. Management may lose respect for the
steward if it feels that the steward does not have the knowledge or authority to distinguish
between a legitimate and a nonexistent complaint. The result may be that management stiffens
resistance on a legitimate grievance under the theory that the steward is "too dumb" to know when
there is a good case, or management may seek to settle grievances directly with their employees
and bypassing the steward. The employees, too, may lose respect for the steward if they think the
steward will process everything. The steward may be swamped with unjustified complaints. It will
become doubly hard to say "no" at this stage of the game. A steward with a long list of lost
grievances to his or her credit will not have the confidence of the employees represented. The
result of the steward taking up poor grievances is a reduction in effectiveness as a union
representative.
Because the Civil Service Reform Act requires that a union holding exclusive recognition must
handle grievances for all members of the bargaining unit, every problem brought to them must be
processed. The steward has every right to exercise his or her own judgment whether a grievance
exists. If the steward feels that the employee has no justified grievance, the steward is under no
legal requirement to process it, as long as the steward is right. In these situations, it is necessary
to discuss the case with the Chief Steward or Executive Board prior to giving the employee a final
answer.
No local union can be forced to take a case to arbitration, since it involves the expenditure of
funds that the membership may feel is not justified by the nature of the grievance. Sometimes
employees have justifiable complaints that are not grievances because they occur in areas where
management does not exercise responsibility. For example: a member who has been injured goes
to Federal Employees Compensation Office to check on a claim regarding work related injury. The
clerk tells the worker to go home and come back tomorrow, since the clerk is quitting early to go
fishing. The employee obviously has a complaint, but not against the supervisor, since the claim is
handled by a different agency.
In other kinds of situations, employees may be dissatisfied because the steward does not handle
their complaints or handle them to their satisfaction. Again, this is an area for which management
is not responsible, whether these are justified or unjustified complaints. If the steward is doing a
poor job, this is a problem for the union to settle internally.
Disputes between union members/bargaining unit employees
Another complaint, that is not a grievance, often results from disputes between employees. For
example: The typewriters of two employees are close to a window. They are constantly arguing
over whether it is too hot or cold and are always opening and closing the window. Management
states that it is willing to adept any policy on which the combatants agree. Obviously
management cannot satisfy both individuals. Intervention by the steward may be necessary,
pointing out that if the argument is not settled, one or both of the employees may be disciplined
and reversing the action will be difficult for the union.
In investigating and presenting grievances, it should be clearly understood by all shop stewards
and union officials that in disciplinary actions and grievances the issues and facts are clearest at
the first step of the action. The hidden factor in grievance actions and particularly in disciplinary
actions, above Step 1, is the human factor. Representatives at levels above Step 1, are not
familiar with the supervisor or the employees, so consequently in appealing to Step 2 or 3, they
are forced to present the case based only on hard cold facts submitted to them by the
representatives at Step 1.
By the time your grievance or disciplinary action reaches the arbitration stage, it has become far
removed from the level where the problem occurred. Therefore an arbitrator will often turn to
issues, facts, and requested remedies presented at Step 1 of the procedures, to decide. When an
arbitrator looks at a disciplinary case, he or she must decide: 1. Did management for just cause
take the action? 2. Does the punishment fit the offense? A hearing officer or arbitrator does have
the right to modify penalties imposed either based on the facts presented or mitigation. Arbitrators
assume the position that they have the responsibility to safe guard the employer's right to
discipline, and a further responsibility to assure that the penalties imposed is fair and not out of
line with the offense.
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