You may also want to read Bob Gilson’s Grievance Information Request Memo written to accompany this article.
Analyzing a grievance and putting together a response is an essential contract administration skill. Supervisors and managers serving as deciding officials should have all available relevant information before making a decision. Getting that information can be difficult. Here are some thoughts on reviewing grievances and drafting replies. The general information here is also applicable to other common gripes, complaints and appeals.
Reviewing a Grievance Technically
There are some threshold issues.
Look at the grievance for timeliness and whether the employee is in the bargaining unit. Also be sure that the topic is grievable as the subject of grievance may be excluded by law, regulation or the parties’ agreement. While Federal Labor Relations Authority’s case law requires that management answer a grievance, the answer is easy if the matter is not grievable for one of the above reasons.
One sentence grievance decisions are fairly simple to write e.g., “Your grievance was untimely filed” or “You are not eligible to file a grievance as you were excluded from the bargaining unit by FLRA UNIT DECISION CASE CITE” or “ Your grievance alleged you are improperly classified, this is not a grievable matter pursuant to 5 U.S. Code 7121(c)(5) or 5 U.S. Code 7103 (a)(14)(B). “
Also look at the specifics of a grievance. If the violation cannot be discerned from the grievance, deny it as lacking a basis that could be determined.
Reviewing the Merits of a Grievance
In looking at merits, screen to define the alleged violation. Is there a claimed breach of a contract requirement, breach of past practice or violation of law, rule or regulation?
Nail down the claimed violation by exact chapter and verse as well as the evidence needed to assess whether a violation took place.
With regard to disciplinary grievances:
- What was the rule violated that supplied the basis for imposing discipline?
- Did the employee know the rule? Can we prove the underlying facts?
- Was the discipline progressive? Was the penalty appropriate?
- Was the employee treated fairly and equitably?
- How does the penalty compare to others for like offenses?
Also, examine what the grievant wants. Why does he want it? Does she deserve any relief? What is the justification for the grievance?
Requesting Information From The Union
I once worked for an agency that was charged with an unfair labor practice because I sent this letter to the union. The union claimed I had violated the law, the grievance procedure and, I presume, the union’s constitutional right not to answer a management question.
Fortunately for the agency and my onward movement toward a Federal retirement, the FLRA’s Regional Office thought the charge was without merit. The FLRA did, however inform me at the time that I should cease and desist trying to help make the grievance procedure actually work. (Just kidding.) In truth, the Regional Attorney thought the union’s charge was hilarious and convinced the union leadership that even the General Counsel at the time might actually dismiss such a charge as lacking merit. The union withdrew the charge.
I persisted in sending a similar letter for every grievance filed and encouraged the step officials to ask the questions at the meeting. I believe the letter is a blueprint not only for running a grievance meeting but for deciding a grievance as well.
The union, in its preparation, would be well served to answer every question. If they do and get them right, the grievant will likely prevail. Believe it or not, the union representatives involved started preparing for meetings.
Drafting a Decision
What should be in your grievance decision?
- Nail down the grievance you are answering. Union grievances often grow as they rise through the procedure. Preserve the later argument that the written grievance is exactly as narrow as it was written.
- Always cite the contract.
- If you plan to deny the grievance, remember it is likely to go to the next step so provide a reason and any citation that directly applies whether legal, regulatory or contractual.
Don’t overwrite the reply. Short is good. Shorter is better.
If it’s a disciplinary case, make sure the answer tracks the decision imposing the discipline.
Avoid giving partial relief as the grievant may take it and move on looking for more. If resolution is an option, be sure that any deal results in dropping the grievance.
Think very carefully about trading one grievance for another. If you do this, you may find that not only do you lose the moral high ground, you may find the union developing bogus grievances for the purpose of developing trading items.
This was a quick look at working grievance. I hope to do more in later articles.
By the way, the views I express here are mine alone.