I have been a volunteer mediator with the Seattle Federal Executive Board for over two decades. It’s been a satisfying use of my time and a way to give something back to Uncle Sam, who has been good to me both during and after my time as a civil servant. Most in our cadre of mediators are active Feds who donate their time and take cases from other agencies to ensure greater neutrality.
I recently mediated a case involving a Letter of Reprimand. The outcome was positive, which is not unusual. The agreement reached by the parties appeared to satisfy both management, the employee, and their representatives. This was one among many cases involving workplace discipline.
Because the employee’s protest was raised as an EEO matter, mediation was offered before the employee’s decision to “go formal”. Alternatively, this matter could have been filed as a grievance. That would have involved a series of “steps” that ascend the management chain. If denied at the final in-house step, a union can decide whether to elevate the case to a labor arbitrator, which is expensive and time consuming. Federal law requires a protesting employee to choose one process or the other.
Discipline is different
Federal disciplinary actions (written cautions, warnings, reprimands, suspensions, etc.) involve legalistic templates. Accordingly, they are reviewed by an attorney or HR specialists before issuance. In many agencies, HR authors the letters, notices and decisions.
Higher levels in the management chain are almost invariably made aware of pending disciplinary actions and have blessed them before issuance. Predictably, when management sits in judgement of its own considered decisions, an employee’s grievance faces an uphill battle. A grievance concerning a reprimand is almost invariably denied.
Once a grievance is denied, the escalation likely begins. Why should the employee accept a negative outcome, knowing that a higher level manager will hear the case at the next step. Weeks drag on, representational time is allocated, and more senior management officials must take time from other duties to hear and author decisions.
Collective bargaining agreements
The grievance article or section lies at the heart of every union-management agreement. It is sacred to unions, as grievances represent a system for justice and redress at the workplace. This is acknowledged in statute, as 5USC §7121(a)(1) begins, “Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances…” If there’s nothing else in a collective bargaining agreement, there will be a grievance procedure.
Some labor agreements have separate articles/sections regarding “alternative dispute resolution” which is normally defined as mediation. Fewer, however, assertively integrate mediation into the grievance procedure as the EEOC has done with its complaint process. If mediation doesn’t result in a mutually acceptable outcome, the process resumes where it left off. Thus, mediation represents a “fail-safe” with the potential to save time and money.
In an independent study of EEO mediations, three college professors found, “An overwhelming majority of the participants (91% of charging parties and 96% of respondents) indicated that they would be willing to participate in the mediation program again if they were a party to an EEOC charge.” Over ¾ felt that the options developed during the mediation were realistic solutions. No one familiar with grievances (our Naval shipyard processed hundreds every year) would predict similar satisfaction rates.
So why don’t collective bargaining agreements and union/management representatives do more to encourage mediation as alternative to grievance steps? Any of the following account for the reticence in the labor relations community when it comes to encouraging mediation of employee grievances.
- Ignorance: Like most union and management representatives I was unfamiliar with facilitative mediation and resistant to learning about it. I (incorrectly) viewed mediation as a process that leads to concession and compromises. Few specialists and union officials have attended a basic mediation class and few national offices encourage them to do so.
- Inertia: “We’ve always done it this way” is a powerful organizational force. For many in the labor relations community, using a dysfunctional process you know is safer than trying a better one you don’t.
- Control: In a grievance setting, HR specialists and union representatives are subject matter experts. Their primacy is threatened if the matter is turned over to a neutral outsider, versed more in successful conversations than labor laws and agreements.
- Culture: The labor relations community is a thick-skinned one. The most intractable representatives are often the most admired. Facilitative mediation focuses on a civil, attentive and productive discussions rather than arguments, evidence and proof. Attorneys, union reps and HR specialists are more comfortable with adversarial system in which they’ve been trained.
The road not taken
I used to advise management officials that a grievance hearing involves listening to the employee and/or union representative rather than engaging them in a lengthy conversation. Mediation is the opposite approach. Over the course of a few hours, a competent mediator will initiate a respectful conversation. During that discussion, focus shifts from past misconduct to future expectations. If discipline (of a child or an adult) represents an effort to alter future conduct, discussing how that change, and how it will happen may prove more valuable than the sanction itself.
The mediation I’m recalling was accomplished in half a day. Both parties left with an appreciation of the other’s willingness to listen and be reasonable. Rest assured, however, I’m neither young nor naïve. This outcome doesn’t ensure all their problems are behind them. Neither did the Letter of Reprimand.
Time and money
The Seattle Federal Executive Board calculates that, when averaging the costs of investigations, hearings, potential damages, etc. our “pre-complaint” mediations saved Uncle Sam more than $500, 000 in the first three months of this year. If you believe that number must be inflated, feel free to cut it by 50%. The overly-conservative result is an astonishing $2 million/year – just in the Northwest… while operating under Covid restrictions. Moreover, we don’t count the cases that were on the verge or settlement and resolved soon after the mediation concluded. Using this technique more often when processing grievances holds similar potential.
After a year’s hiatus, I will soon resume teaching basic labor relations (among other subjects) to Federal managers and union reps. We’ll cover their rights according to 5USC Chapter 71, the basics of unfair labor practices, “I&I” bargaining, contract interpretation, etc. I haven’t abandoned technical labor relations just because I’m a trained mediator. Instructing on the subject of grievances, however, has always proven challenging, because management is sitting in judgement of itself. This is especially true when the grievance concerns a well-considered and reviewed disciplinary action.
If you are a union representative or LRS, and haven’t done so already, the time to attend basic mediation training has arrived. Mine was a 40-hour introductory class at a community mediation center. Its eventual effect on me should be obvious.
When the leadership of Federal employee unions and their agency counterparts learn about facilitative mediation and began exploring its use as an alternative to grievance steps, they’ll likely discover the many advantages already familiar to those responsible for processing EEO complaints.