Analyzing AFGE's Proposals for a Grievance Procedure

By on March 27, 2011 in Current Events with 5 Comments

Many of us had thought the negotiation of grievance procedures to be a thing of the past but recent FLRA decisions and other FLRA mischief require a rethinking of that premise.

The American Federation of Government Employees (AFGE) proposed language in a recent national negotiation addressing a grievance procedure.  My purpose below is to provide a critical analysis of the language proposed by the union from an Agency practitioner or case advocate’s position.  Yogi Berra might have said that nothing matters ‘til it matters and often, rewriting a union proposal isn’t always the best way to reach an agreement.  Sometimes the union’s proposed language is a historical repeat that holds no threat; is a harmless paraphrasing of accepted practice; or doesn’t appear to carry with it any intended complexity of meaning or of numerous possible meanings.  Having said that, never forget that the Agency is bargaining an enforceable contract.  Ambiguous language should be included as a known risk or benefit to the Agency.  This is particularly true in light of FLRA’s 2010-2011 decisions putting the interpretation of any language in the absolute control of an arbitrator. 

As you work through the analysis, remember that every situation is different.  Language that affects a nation-wide unit may have very different effects on a single localized unit.  I intend to follow this article up with a suggested Agency article on the grievance procedure that, hopefully, addresses management concerns effectively.  Stay tuned.

As always, anything said here is my view and mine alone.

 

AFGE Proposed Grievance Procedure

 

AFGE Proposal Analysis and Comments

Section 1.0 Purpose
The purpose of this Article is to provide a mutually acceptable method for the prompt and equitable settlement of grievances filed by bargaining unit employee(s), the Union or the Agency.

There is little or no specific mention of the Federal labor law or its intent in the union’s proposal. 5 USC 7121(b) reads:
(1) Any negotiated grievance procedure referred to in subsection (a) of this section shall—
(A) be fair and simple,
(B) provide for expeditious processing, and
(C) include procedures that—
(i) assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances;
(ii) assure such an employee the right to present a grievance on the employee’s own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and
(iii) provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency.
A citation to this language or the language itself might be a smart way to open up the article.

Section 2.0 Coverage and Scope
A grievance means any complaint:
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 of any employee; or
3. by any employee(s), the Union or the Agency concerning:
a. the 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.

 

4. Grievances on the following matters are excluded from the scope of this procedure:

 

 

 

a. any claimed violation of subchapter III of chapter 73 of Title 5 U.S.C. relating to prohibited political activities;
b. retirement, life insurance or health insurance;
c. a suspension or removal under 5 U.S.C. 7532 relating to national security;
d. any examination, certification or appointment; or
e. the classification of any position which does not result in the reduction in grade or pay of an employee.

AFGE’s definition of a grievance is a quote from 5 USC 7103 (a)(9). A reference to the law would be most appropriate here. Also, the quoted language

 

 

 

 

 

 

The union’s proposal calls for a “Broad Scope” grievance procedure. In other words, one that covers the widest range of grievable Agency decisions, actions or a lack of action in a given circumstance.
The union’s proposed exclusions from the grievance procedure are almost but not quite quoted directly from the law. The law at 5 USC 7121 (c) reads:
(c) The preceding subsections of this section shall not apply with respect to any grievance concerning—
(1) any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities);
(2) retirement, life insurance, or health insurance;
(3) a suspension or removal under section 7532 of this title;
(4) any examination, certification, or appointment; or
(5) the classification of any position which does not result in the reduction in grade or pay of an employee.
Lots of Agency practitioners question the need for a departure from statute. The Elkouris in How Arbitration Works (BNA Books (Bureau of National Affairs)) say that arbitrators give meaning to language differences so when the law turns a phrase a certain way, a party should be on notice that there may be a different meaning argued if a case involving that language goes to arbitration.

Again, if you’re going to quote the law, why not cite the statute reference and use the exact language of the law including the same bullets or numbering as the law.

Section 3.0 Exclusivity
Section 3.1
Grievances may be initiated by employee(s) covered by this Agreement and/or their Union representative or by the Agency.

 

 

 

Representation of bargaining unit employees shall be the sole and exclusive province of the Union.

 

 

 

 

Section 3.2
Except as provided by law, this is the exclusive procedure available to bargaining unit employees, the Union or the Agency for the resolution of grievances within its scope.

 

This sentence is boilerplate. Black’s Law Dictionary defines “boilerplate” as:
“Language which is used commonly in documents having a definite meaning in the same context without variation; used to describe standard language in a legal document that is identical in instruments of a like nature.”

This sentence is true as far as it goes. What it doesn’t address is what happens when an individual shows up as the grievant’s representative and is not listed anywhere as a union representative. The FLRA case law indicates that since representation is a union right and obligation, anyone designated (or allowed) to represent the grievant is by definition a union representative. (59 FLRA No. 19) Points to consider in language:

  1. Require a designation in writing.
  2. No designation, no standing except as required by law.
  3. Whoever is designated has the authority to act for the union or won’t be recognized.

 

Appears to be boilerplate but if the reference is to 5 USC 7121, you might require a citation. For anything else, get an explanation.

Section 4.0 Representation
Section 4.1
Upon filing of a grievance, an employee may elect to be self-represented or represented by a Union representative. Anyone whom the Union has designated in writing is the representative of the Union.

 

 

 

Section 4.2
The Union has the right to be present during any proceeding under the negotiated grievance procedure. If the Union is not the designated representative, a copy of the grievance will be provided to the Union within five (5) days of the filing date. The Agency will provide the Union reasonable advance notice of any grievance meeting/discussion when the Union is not the designated representative. A copy of each grievance decision will be timely provided to the Union.

Section 4.3
Where the grievant elects Union representation, meetings and communication with regard to the grievance and any attempts at resolution shall be made through the designated Union representative.

Section 4.4
When the grievant and the representative are on the same fixed shift, all steps in the grievance process will be scheduled during that shift, unless the Parties mutually agree otherwise.
Section 4.5
In situations where the grievant(s) and representative are on different work schedules and/or locations, the Parties will make every reasonable effort to schedule all steps in the grievance process to the common work times of the grievant(s) and representative unless the parties mutually agree otherwise.

Section 4.6
By mutual consent, the Union may bring a new or inexperienced representative along to a grievance meeting with a more seasoned representative.

 

A literal reading of this seemingly innocuous language (underlined) would permit a union rep in one part of the town, city, country, (or planet) to represent an employee anywhere.
There’s certainly impact in cost, assignment, etc. in such language.

Underlined:
It should be made clear that the only rep in a grievance the employee him or herself or a union-designated rep i.e., one that is empowered to speak for the union.

 

 

 

 

This is boilerplate.

 

 

 

 

 

 

 

 

 

These sections (4.4 & 4.5) are generally boilerplate but your unique situations should be considered before an agreement is made on such language.

 

 

 

 

Questions to be answered:
What exactly is a new or inexperienced rep?
Does this mean that if they attend one meeting, they’re involved in all?
Do you want to place the decision on this with a first line supervisor or other step who may be unfamiliar with the union management dynamic?
What would be the exact role of the new or experienced rep?
Can he she ask questions during the proceeding? Etc., etc.

 

Section 5.0 Resolution of Grievances and Employee Standing
The Union and the Agency agree that grievances should be settled in an orderly, prompt and equitable manner so that the efficiency of the Agency may be maintained and morale of employees shall not be impaired. Every effort shall be made by the Agency and the Union to settle grievances at the first level of supervision. Employees and their representatives will be unimpeded and free from restraint, interference, coercion, discrimination or reprisal, consistent with 5 U.S.C. Chapter 71 and this Agreement, in seeking adjustment of grievances. Employees shall be authorized necessary time while on duty to prepare and participate in grievances, including individual or group grievances.

 

 

General feel good language

 

Underlined: This language may be argued to fix the first grievance level at a first line supervisor regardless of other issues.

 

 

Underlined: Questions:
What exactly is “necessary time”?
What permission must be sought, if any?
Who will grant such permission and make the determination of what is necessary?

Section 6.0 Grievability/Arbitrability Questions
In the event either Party should declare a grievance non-grievable or non-arbitrable, the original grievance shall be considered amended to include this issue. The parties will raise any questions of grievability or arbitrability of a grievance prior to the limit for the written answer in the final step of this procedure. All disputes of grievability/arbitrability shall be presented jointly with the merits issue(s) in the related grievance, except where the parties agree to hear the grievability/arbitrability issue and the merits issue separately.

 

This is pretty much the way contracts have read in the past. See my coming article on modernizing grievance procedures for a better way to deal with this issue.

Section 7.0 Time Limits
Section 7.1
A grievance concerning a continuing practice or condition including EEO matters may be presented at any time.

Except as covered in Section 8.3, a grievance concerning a particular act or occurrence must be presented to the Step 1 management official within fifteen (15) working days of the action or date the employee became aware of it.

Section 7.2
Time limits specified for each step of this procedure shall be computed from the day after the receipt of the grievance or an appeal by the Agency, and from the day after the receipt of a response by the union.
Section 7.3
Proof of service shall be a return post office receipt executed by the person served; or a written acknowledgment from the person served when hand delivered.

 

 

Section 7.4
All the time limits in this Article may be extended by mutual consent.

 

 

Underlined: This language places no limits on the filing of a grievance including matters that arose prior to this or any other agreement.

Note: Section 8.3 allows a grievance after all the pre-complaint steps of an EEO allegation are made including EEO Counseling. See comments below.
Underlined: Arguably, there are some employees unaware of their own existance, rules, etc. Again, this needs definition.

This language is not an apparent problem providing it does not amend an existing appeals procedure.

 

This language allows some game playing. In doing labor and employee relations work, I have found people never to be home or employees/union reps to refuse to sign such acknowledgements. The Merit Systems Protection Board has policies and regulations on service. Consider adopting theirs in their entirety. Applies to all, arguably fair.

 

Again, providing line managers understand the meaning of the language.

Section 8.0 Options
Section 8.1
In accordance with 5 U.S.C. 7121, an employee at his/her option may raise matters covered under Sections 4303 (Unacceptable Performance) and 7512 (Adverse Actions) under the appropriate statutory procedures or the negotiated grievance procedure, but not both. An employee shall be deemed to have exercised his/her option at such time as the employee timely files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing, whichever event occurs first.
Section 8.2
Similarly, an employee affected by a prohibited personnel practice under 5 U.S.C. 2302(b)( 1) of the Civil Service Reform Act may raise the matter under a statutory procedure or the negotiated procedure but not both. An employee shall be deemed to have exercised his/her option at such time as he/she timely files a grievance in writing or files a written complaint under the statutory EEO procedure, whichever event occurs first.

 

Section 8.3
Before filing a grievance which alleges discrimination, the employee may first discuss the allegation with an EEO counselor. This discussion must be within 45 calendar days after the event causing the allegation or after the date the employee became aware of the event. The counselor shall have 30 calendar days to resolve the matter informally. If the counselor is unsuccessful, he/she will give the employee a written notice stating his/her right to file either a formal complaint under the statutory EEO procedure or a grievance under this procedure. If the employee elects to file under the negotiated procedure, he/she shall proceed under Section 9 of this article within 15 working days and if the counseling process was used, attach a copy of the counselor’s notification to the grievance. The EEO counselor will advise the employee of the name and position of the supervisor/manager with whom the grievance may be initially filed. For the purpose of this section, the Step 1 official is the official who took the action which gave rise to the allegation of discrimination or his/her designee. If this official is also the Step 1, 2 or 3 official identified in Section 9, the grievance will be entered at that step of the grievance procedure. If the official is the Step 3 official or higher, that official will have 15 working days to attempt to resolve the matter and issue a decision. If the matter is not resolved, the grievant will have 5 workdays to elect to have the matter reviewed by a higher appropriate authority identified by the Agency. That official will have 25 workdays to either resolve the matter or render a final decision. If the employee does not elect to use EEO Counseling, any grievance must be initiated within 45 calendar days of the event which gave rise to the allegation, or after the date the employee became aware of the event, in accordance with the above procedure.

 

 

This reflects the statutory provisions.

 

 

 

 

 

 

This reflects the statutory provisions.

 

 

 

 

 

 

 

This language embeds the EEO Counseling process in the grievance procedure and, in essence, makes a counselor responsible for grievance notices, arguably a work assignment. With the current FLRA case law, such language would be difficult to challenge from a negotiability POV but may be worth a try.

 

 

 

 

 

 

 

Note that this language alters the steps in the grievance procedure with ambiguous effect. In other words the third step official under the grievance procedure covered in section 9 below could become a first step official forcing the engagement of higher level managers than intended. Who management assigns as grievance steps has always been a management right but again with the current FLRA, no support for such a view is evident. This is very risky and complicated language creating a parallel grievance procedure for any matter that an employee claims is related to discrimination.

 

Section 9.0 Procedures for Employee Grievances
Section 9.1 (Step 1)
A. A grievance must be submitted in writing, and presented to the Step 1 management official, normally the first-line supervisor or the lowest-level management official with the authority to resolve the grievance. The written grievance should normally contain a description of the matter(s) being grieved, including the Article(s) of the Agreement that is involved,

 

 

B. Within ten (10) workdays after receipt of the grievance, the Step 1 official must hold a meeting or, if one is not requested by the grievant or representative, issue a decision in writing. If the meeting is held after the fifth workday, the Step 1 official must issue a decision within five (5) workdays after the meeting. The meeting is intended to provide the opportunity for the employee to present and discuss aspects of the issues giving rise to his or her grievance with the management official in an attempt to clarify issues and find an appropriate resolution. The decision will either: grant, partially grant, or deny the relief sought. The grievance may be appealed to the Step 2 official within five (5) workdays after receipt of the Step 1 decision. The Step 1 decision will include the name, title, work location, e-mail address and work telephone number of the Step 2 official. The Step 1 official will forward the grievance material to the Step 2 official as indicated by the grievant’s election to proceed to the next step.
Section 9.2 (Step 2)
A. If the Step 2 official is located in the same installation as the grievant, the grievant shall have five (5) workdays to make an oral and/or written presentation.
B. If the Step 2 official is not in the same installation as the grievant, the grievant shall have ten (10) workdays to make an oral and/or written presentation.
C. The Step 2 official or designee will as speedily as possible, attempt to resolve the grievance and will, within ten (10) workdays after the presentation date give a written decision containing the reasons for the decision.
D. The grievance may be appealed to the Step 3 official within five (5) workdays after receipt of the Step 2 decision.

Section 9.3 (Step 3)
A. If the Step 3 official is located in the same installation as the grievant, the grievant shall have five (5) workdays to make an oral and/or written presentation.
B. If the Step 3 official is not located in the same installation as the grievant, the grievant shall have ten (10) workdays to make an oral and/or written presentation.
C. The Step 3 official or designee will as speedily as possible, attempt to resolve the grievance and will within ten (10) workdays after the Step 3 presentation date give a written decision containing the reason for the decision.
D. If the decision is not acceptable, the Union may refer it to arbitration in accordance with Article ___ (Arbitration).

 

E. When oral presentations in Step 2 or Step 3 of the grievance procedure are to be made to management officials outside of the installation, face to face meetings are preferred whenever feasible. The Agency will pay necessary travel and per diem expenses for the grievant(s) and representative. If such meetings cannot be arranged within the timeframes for oral presentations, the parties may meet at a later date as scheduling will permit or may conduct the oral presentation by telephone, but will not delay the grievance process longer than 30 calendar days.
Section 9.4 Streamlined Grievance Process
For workplace complaints identified below, streamlined grievances will be processed in accordance with the grievance procedure as described in this section, except that such grievances will be initiated at the Step 2 of that procedure. This process will be used to consider grievances concerning:
1. hours of work (including AWS, credit hours and distribution of overtime)
2. absence and leave (including AWOL)
3 dispute over the approval of official time
4. any other matters which the parties mutually agree upon.

Section 9.5
The Agency will provide, on a semi-annual basis, a report to the Council President on the number of grievances filed for each time period. The report will show the number of grievances filed per third line manager and the number settled or withdrawn at each step of the process.

Section 9.6 Release of Grievants and Witnesses
An employee will be afforded reasonable duty time to prepare for discussions and to present a grievance under this Article. Any AGENCY witnesses as determined by either party to be necessary to the resolution of the grievance will also be on duty time.

 

 

 

 

 

Underlined: This is generally boilerplate except that FLRA decisions (See http://www.fedsmith.com/2011/01/13/foreboding-future-grievances-federal-labor-relations/
In which I argue that since claims made in a grievance can be construed in any manner at all).
It would be wise to negotiate as complete a statement of the grievance as possible.

 

Underlined: You may have noticed that no mention of a request for a meeting was contained in the grievance.

Underlined: Note the restriction on the decision period if a meeting is conducted.

 

 

 

Underlined: If you agree to a partial grant of a grievance, you’re agreeing that the grievance will proceed anyway. Virtually any practitioner knows that such decisions encourage piecemeal deals with
No future leverage.

 

 

 

 

 

Underlined: An Agency must decide the utility of a meeting and the consequential costs at every step of the procedure.

 

Underlined: This calls for traveling someone to handle the process.

 

 

 

 

 

 

 

 

 

See above re: travel etc..

 

 

 

 

 

 

 

 

 

Note: This provides for a face to face meeting only, no technology. Look at potential costs and time lost under such an arrangement.

 

 

 

 

 

Such language should include when mutually agreed or after careful examination of the complexity of issues raised previously.

 

 

 

 

 

 

 

Sine the union rep is most commonly involved and the Agency will provide copies of grievance decisions (see earlier language), why is this the Agency’s burden of production?

 

 

Questions:
What is reasonable time?
Are you willing to agree to permit the union to determine what employees attend a grievance proceeding?
Does the language mean that if an employee is on another shift or work schedule, they are on duty for the meeting and entitled to overtime?

 

Section 10.0 Union-Management Grievances
Section 10.1
Either party may opt to submit grievances through their respective representatives at the national, intermediate, or local levels. Grievances at the national level will be submitted to the NAME or designee or the President of the Council or designee, as appropriate. Grievances at the intermediate level will be submitted to the ____ or designee or the Council Vice President or designee, as appropriate. Grievances at the local level will be submitted to the ____ or the Local President or designee, as appropriate. [These management positions are deliberately left blank so that the parties may determine during negotiations how best to describe them.]
Section 10.2
A grievance concerning a continuing practice may be presented at any time. A grievance concerning a particular act or occurrence must be presented to the other party within twenty-five (25) workdays of the action or date the moving party became aware of it.
Section 10.3
When a grievance is filed, the parties will meet and/or discuss the matter within ten (10) workdays after receipt unless the grieving party waives the meeting/discussion. A written decision will be issued within ten (10) workdays of the meeting or of the date of waiver. If the grievance is not settled by this method, the grieving party may invoke arbitration within thirty (30) workdays after receipt of the final decision. If the responding party fails to issue a decision, the grieving party may invoke arbitration within thirty (30) workdays after the deadline for the responding party’s decision.
Section 10.4 Arbitration awards or grievance settlements shall not be applicable or precedential beyond the jurisdiction of the parties to the grievance, unless the parties at a higher level agree otherwise.

 

 

Boilerplate

 

 

 

 

 

 

 

 

Underlined: See above discussion

 

 

 

Note the travel cost and release from duty issues here.

 

 

 

 

 

 

 

Note this with care. The effects might include a clear decision from an arbitrator on an issue that would then only be applicable to the part of the organization in which it arose requiring litigation of an issue over and over again.

Section 11.0 Grievance Decisions
All grievance decisions will be in writing and state the issue being grieved, a summary of the findings and the rationale for the decision. Copies of relevant documents cited in the decision will be provided if they are not otherwise readily available to the employee.

 

 

Note: The union’s 9.1 (filing a grievance) doesn’t require the employee or union rep to state an issue nor do the other steps but the Agency apparently must devine the issue then answer it. See discussion above.

Section 12.0 Failure to Meet Requirements
A. In employee grievances, failure on the part of the Agency to meet any of the time requirements of this procedure will permit the grievance to advance to the next step.
B. If the grievant, after receiving a decision fails to timely pursue the grievance, the grievance shall be terminated.

 

12.0 A is generally boilerplate.
B. on the other hand is ambiguous. FLRA has found that failure to process a grievance is an unfair labor practice. What’s needed is a clear and mistakable waver if the employee/rep fails to file or is untimely.

Section 13.0 Withdrawal
The Union, acting as the responsible representative of all employees in the bargaining unit, may, at any step of this procedure, withdraw on a nondiscriminatory basis from the grievance. In such cases, the grievant may continue to represent him/herself.

 

I would argue that this is none of an Agency’s business but is between the union and the employee. Why would the Agency want to be a party in the case where the union withdraws and the employee files a duty of fair representation allegation with FLRA. Sometimes it’s wise to subscribe to the policy of “Let’s you and him fight” and stay above the fray.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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