Contents

• Important points

• Be Prepared

• Steps for handling complaints

  • Step 1: Receive the complaint

  • Step 2: Investigate the complaint

  • Step 3: Determine the validity of the complaint

  • Step 4: Getting help

  • Step 5: Take action

  • Step 6: Check the results

• Routes to Remedy problems

  • The Negotiated Grievance Procedure

  • Unfair Labor Practices

  • Merit System Protection Board Appeals Procedure

  • Office of Special Counsel Complaint Procedure 

  • Equal Employment Opportunity Procedure 

  • Health and Safety Problems 

  • Union/Management Councils 

• Complaint Form

What are the most important points to keep in mind when handling a complaint?

Always keep these points in mind:

1. Friendly and informal:
   • Handle complaints at the lowest possible level, and in an informal fashion whenever possible.
2. Don’t miss deadlines:
   • There are often strict deadlines when addressing a complaint in formal procedures, such as filing a grievance, an Unfair Labor Practice charge, or an EEO complaint.
   • Missing these deadlines could cause the employee to lose his/her case, even if it is meritorious.
3. Choose your path wisely:
   • Oftentimes choosing one formal procedure to resolve a complaint means that all other procedures are off limits – this is referred to as “not getting more than one bite at the apple”.
4. Sharing information:
   • Keep records of complaints and inform the Local 1998 leadership (President, Vice President, Secretary-Treasurer, Recording Secretary, and Chief Steward) on a regular basis of the types and number of complaints received, and how you handled them.
5. Ask questions:
   • It is okay to not have all the answers – that’s why you have other officers and NFFE Business Representatives to help you. Contact the Local 1998 leadership early in the process.

• Knowledge Required:
  • Acquire a working knowledge of:
    • 5 USC Chapter 71, (Federal Service Labor-Management relations (statute)
    • Collective Bargaining Agreement (CBA)
    • Pertinent Agency Regulations (FAM)
    • Local office policies (work schedules, dress code, food & drinks, headphones, etc.)
    • Steward Manual
    • Chapter 14 of Steward Manual
  • Acquire general knowledge of:
    • Title 5 United States Code (5 USC)
    • 5 Code of Federal Regulations (5 CFR)
    • Regulations of the MSPB, FLRA, EEOC
• Organizational Aids:
  • Have a locked cabinet system (required by the CBA) in which you can securely store your files. ____
  • Have complaint forms readily available. ____
  • Have a filing system ready to use, and make a separate file for each complaint. ____ 
  • Obtain copies of the CBA and relevant portions of other authorities (5 USC Chapter 71, 3 FAM, 5 CFR) ____
  • Save a link to the Local 1998 website on your computer. ____

Step 1:  Receive the complaint

The union will receive a number of different complaints:

• From: “Why don’t we have a water cooler in our office?”
• To: “What right do they have to suspend me?”

How does the union decide which complaints are legitimate?

• Initially, you should consider any problem, trouble, or gripe of a member of the bargaining unit to be a legitimate complaint.
• Only after a thorough investigation of the matter can the union decide otherwise.

There are some complaints that are very real and important, but the union is not designed or equipped to handle them. Such complaints include:

• Personal differences between employees.
• Union problems which the union should solve internally, such as when an employee does not like the way the union is handling his/her grievance.
• Community problems which the union should refer to the appropriate agency, such as a member’s eviction from his/her home.

Step 2:  Investigate the complaint

The investigation is the most important step towards resolving a complaint successfully.

As part of your investigation, you will want to do the following:

• Assemble a file of facts
• Have the employee complete the complaint form
• Interview the complainant and witnesses
• Distinguish between facts and assumptions
• Use good interview techniques

Assemble a file of facts

When you receive a complaint, you should begin to assemble a file of facts about the case.

The file should include documentation of any facts that are relevant to the problem, including:

• Statements from the witnesses (signed if possible).
• Any notes taken during interviews.
• Signed complaint form.
• Documents and evidence.

Have the employee complete the complaint form

The employee should fill out the Local’s complaint form before you proceed to investigate the complaint:

• Have the employee sign the complaint form.
• The complaint form is for internal use only and is not submitted with any complaint action.

Interview the complainant and witnesses

Locate and interview all witnesses and persons, including management officials who may have knowledge of the circumstances giving rise to the grievance.

Ask the following questions:

• Who?
  • Who was involved in the incident?
  • Who does the complaint affect?
  • Who witnessed the event?
  • Get each name, that person’s job, section or office, and any other information necessary to identify him or her.

• What?
  •  What are the facts and circumstances surrounding the complaint?
  • The answer to this question should describe the act (or failure to act), incident, or condition leading to the complaint.
  • What is the remedy sought by the complainant?

• When?
  •  When did it happen?
  • Note both date and time.

• Where?
  • Where did it happen?
  • Note the location.
     
• Why?
  • Why did it happen?
    · Possible reasons:
    - Personal bias
    - Participation in union activity
    - Alleged poor performance or conduct
    - Discrimination
         Race
         Color
         Creed
         Religion
         Sex
         National origin
         Political affiliation
         Marital status

Distinguish between facts and assumptions

Just the facts!

• The investigator’s task is to investigate, not to be judge and jury.
• Get all the facts.
• Make notes.
• Ask questions for:
  - clarification
  - additional information
• Distinguish between fact and opinion.
• Determine which facts are relevant.
• Keep an open mind.
• Avoid personalizing the investigation.
• It is not who, but what is right that counts.

The goal of the investigation is evaluate facts and evidence and to be objective:

• A fact is something which exists as true and cannot be denied
• An opinion is a belief or conclusion which may be questioned
• An allegation is a claim or charge made against someone. It is an unsupported assertion. Person making allegation has burden of proof
• An assumption is taking something as true without proof

Use good interview techniques

Consider the following interview techniques:

• Have the employee complete the complaint form
• Put employee at ease
  • Encourage discussion about issues giving rise to the complaint.
  • Let the employee tell his/her own story.
  • Do not create a negative atmosphere.
• Listen attentively
  • Give full attention.
  • Stop talking.
  • You cannot listen while you are talking.
• Empathize with the complainant
  • Try to put yourself in their place to be better able to understand their concern.
• Ask Questions
  • Ask questions when you do not understand, when you need further clarification, or when you want the complainant to feel comfortable with you.
  • Do not ask embarrassing or aggravating questions.
• Don’t give up too soon
  • Do not interrupt the complainant.
  • Give them a chance to say what they have to say.
• Concentrate on what the other person is saying
  • Actively focus your attention on the complainant’s words, ideas, and feelings regarding the issues of concern.
• Look at the other person
  • Facial expressions, movement of eyes and hands are all part of communicating. Pay attention to these, as they convey your attentiveness and the sincerity of the complainant.
• Be objective
  • Leave your emotions, personal or otherwise, outside
  • Personal emotions, beliefs, bias, etc., will interfere with your objectivity. Try to leave them outside.
  • Avoid being baited by the employee or becoming irritated.
  • Avoid questions which would reveal some predisposed decision on how the complaint will be handled.
• Listen for what is not said
  • Sometimes you can learn just as much by what is left out of the discussion versus what is said.
• Sometimes it helps to have the employee repeat the story
• Ascertain the remedy being sought
• When the employee has finished, recap your understanding of the complaint
  • Ask any questions to clarify an issue

Step 3:  Determine the validity of the complaint

The next step is to decide whether the complaint is valid based on the available facts.

• Does sufficient evidence to support an action exist?
• To form the basis for a legitimate complaint, the facts must support a claim of injustice for which management may be responsible and evidence must exist to support those facts.

Management actions that constitute an injustice:

• Put an employee’s health or safety in jeopardy.
• Unfair.
• Violate:
  • The negotiated agreement.
  • OPM regulations or standard agency regulations.
  • Agency policy or past practice.
  • 5 USC Section 7116(a) or other laws.

Sufficient evidence to support such a claim may include:

• Two or more witnesses.
• Documents which show a violation and/or injustice.
• Conditions that can be observed or verified.

Step 4: Getting Help

It is not expected that you will know everything about representing employees and handling complaints. Asking for help and guidance from the Local 1998 leadership or NFFE or IAMAW Business Representatives is more than acceptable – it is encouraged! In fact, that is what your local leadership and your Business Representatives are there for: to help you in helping employees. Here are some key things to remember about getting help:

• Ask for help early in the process.
• Make it clear that you are asking for assistance and that there is a problem that you need to deal with: “I need your assistance is addressing a problem”. Merely informing someone of an unfortunate situation could be interpreted as an “FYI” to be filed away for future reference and not a request for guidance/advice.
• If you plan to seek assistance from the Local 1998 leadership or a NFFE or IAMAW Business Representative, make a file of the complaint for them.
• Remember that those giving guidance have inquiries from many sources, so be patient on a reply.
• Make it clear what were the dates of any events related to the problem, and what is the deadline for your response.
• Be responsible for deadlines – do not assume that the person from whom you are seeking guidance will know or remember that a deadline is fast approaching.
• When seeking advice or assistance, the quality and usefulness of the advice or assistance will depend on the information you provide. Detailed, accurate information will result in good advice. Inaccurate, incomplete data will result in poor advice and could cause the loss of the grievance or considerable unnecessary work.
• Do not assume that the person advising you understands how your office functions, even if they have the same position as you in another Passport Agency.

Step 5:  Take action

It is now “Decision Time”:

• Check for any applicable time limits
• Examine all records and documents
• Determine if you need to file an information request with management
• Review all the facts of the case
• Check appropriate contract provisions, regulations, laws and policies
• Check to see if matter is grievable and/or arbitrable
• Consider the case’s strengths and weaknesses
• Check past practices and similar cases and their disposition.
• Consider the proper forum (NGP, MSPB, EEOC, OWCP, Other)
• Consider possible solutions
• Reach a preliminary decision on the merits of the case
• Seek advice and assistance if necessary
• Meet with employee to advise him/her of the results of your investigation

If the complaint is not legitimate:

• Explain to the employee the reasons why.
• If possible, the employee should be satisfied with those reasons.
• Some reasons for not taking any action:
  • Matter not grievable or arbitrable
  • No violation of law, rule, regulation or contract
  • Facts and evidence do not support allegation
  • Matter may be best pursued in another forum
  • In the case of disciplinary/adverse action, the action taken is supported by the evidence. However, in such cases, mitigating factors need to be explored to determine if the penalty is too harsh and may be reduced (Note: When an employee is the recipient of a disciplinary/adverse action the burden of proof rests with the employer, but when the employee is making the allegation the burden of proof rests with the employee).

If the complaint is legitimate:

• Verify the remedy sought.
• Do not raise expectations or promise/guarantee the complainant that any action taken will necessarily achieve the desired result.
• Do not promise to refer the matter to arbitration if a grievance is filed and if it is unsuccessful.
• Prepare and present the complaint in accordance with proper procedure.
• Take the appropriate action: the proper procedure depends on the appropriate action (see Routes to Remedy Problems).

Paperwork:

• Make a file for your use which contains all documents evidence notes, etc.
• Make a file for the grievant less any of your notes and opinions of the case.
• Make a file for the Union filing cabinet.

Step 6:  Check the results

Follow-up on the results:

• The union must determine whether the agency has successfully resolved the complaint and whether the complainant is satisfied.

What should the union accomplish when checking results:

• Insure that both the agency and the complainant are carrying out their settlement.
• Insure that the settlement makes the Local stronger in the eyes of the group.
• Consider and suggest including clauses dealing with common subjects of complaints for the next contract – forward these suggestions to the Local President and Secretary-Treasurer.

• The Negotiated Grievance Procedure
• Unfair Labor Practices
• Merit System Protection Board Appeals Procedure
• Office of Special Counsel Complaint Procedure
• Equal Employment Opportunity Complaint Procedure
• Negotiation Problems
• Health & Safety Problems
• Miscellaneous Routes
• Partnership meetings, etc.

The negotiated grievance procedure

For specific information on how to file grievances, go to Chapter 15.

Any issue is grievable under a collective bargaining agreement as long as it does not fall under one of these exceptions:

• Agreements may purposefully exclude subjects from the grievance procedure.
• The statute itself excludes certain complaints from these procedures.
• A complaint will not be grievable if the time limit for filing has passed.

1. Check the scope of coverage of the negotiated grievance procedure.
   • Is the issue grievable under the procedure?
     • The answer is YES for every issue except for those noted below.
     • The answer is NO if:
       • The collective bargaining agreement specifically excludes the issue.
       • It meets one of the exceptions listed in Section 7121(c) of Title VII.
         • Prohibited political activities.
         • Retirement.
         • Life & health insurance.
         • A suspension or removal under 7532 of Title VII.
         • Any examination, certification or appointment.
         • Classification of any position which does not result in grade or pay of an employee.
   • Is the issue appealable to the Merit Systems Protection Board?
     • For most issues the answer is NO.
     • The answer is YES if:
       • The issue involves an EEO matter under Section 2302(b)(1).
       • The issue involves a reduction in grade or removal under Section 4303.
       • The issue involves an adverse action under Section 7512.
       • The collective bargaining agreement specifically excludes certain issues from the negotiated grievance procedure and those issues are within the Board’s jurisdiction (Section 7121(a)(2)).
       • It is an EEO allegation already raised and decided in connection with a grievance within the Board’s jurisdiction; then the Board may review the EEO aspect of the case.
     • You may have the option of raising these issues under the negotiated grievance procedure or with the MSPB, but not both.
2. Check the time limits for filing grievances under the contract.
   • If the time limit has passed, the negotiated procedure is not available.
   • If the time limit has not passed, plan the case to meet the imposed limits.
3. Evaluate the arbitration fund.
   •  A grievance may be filed whether or not there is the intent to follow it through to arbitration. However, arbitration is a possibility that should be kept in mind with each grievance, and arbitration costs money, so the finances of the local have to be considered.
   • If the negotiated grievance procedure is available and alternate routes exist (e.g., an Unfair Labor Practice charge), check with the Local 1998 Secretary-Treasurer and President to see if the negotiated grievance procedure is economically feasible.
   • The Local 1998 Bylaws mandate certain requirements before arbitration may be invoked:
     • The Local 1998 Executive Board makes the decision on invoking arbitration, though the decision can be appealed to the full dues-paying membership.
     • Cases which affect only the grieving employee will be sent to arbitration only if the grievant agrees to pay the Local’s share of the cost of arbitration.
     • The decision is based on:
       • Whether there is a good possibility of winning the case.
       • The amount of money in the arbitration fund.
       • Whether victory will increase the Local’s prestige and membership.
4. Review the Duty of Fair Representation.
   • The duty of fair representation is the duty of the exclusive representative (the union) to represent the interests of all members of the bargaining unit, whether they are members of the union or not.
   • This duty extends solely to negotiations, handling grievances and invoking arbitration.
   • This duty does not extend to other matters, such as MSPB, EEO, and OSC complaints.
   • The union may still exercise its discretion, but the factors (merits of the case) that go into the decision must apply equally to members and non-members.

Unfair Labor Practices

For specific information on how to file Unfair Labor Practice charges, go to Chapter 16.

If the matter also falls under the negotiated grievance procedure and would also be an Unfair Labor Practice, you must chose between that procedure and this one.

If you can answer “yes” to both of these questions, you may consider filing a ULP charge:

• Did the event occur within the past 6 months?
• Does the management action fall under one of the categories listed in 5 USC 7116?

Unfair Labor Practices as listed in 7116

The questions that follow each item are common examples of violations. They are not the only violations possible.

1. Management may not interfere in any way with employees exercising their rights.
   • These rights include the right to form, join, or assist a labor organization, and the right to engage in collective bargaining.
     • Has management tried to interfere with an internal union election?
     • Has management made anti-union statements or otherwise tried to interfere with the employees’ right to join or assist the union?
     • Has management refused to provide the union with information necessary to negotiate or process a grievance?
2. Management may not encourage or discourage membership in a union by using discrimination in hiring, tenure, promotion or other conditions of employment.
   • Has management denied tenure or a promotion to an employee because he/she was or is a member of a union?
3. Management may not sponsor, control, or otherwise assist any labor organizations.
   • The only exception to this rule is that management may furnish, at the union’s request, routine services and facilities (such as an office), but only if it furnishes these things to other unions in an equal manner.
     • Has management given a service to another union while refusing it to Local 1998?
4. Management may not discipline or otherwise discriminate against an employee because the employee has filed a complaint or engaged in related activities.
   • Has management taken a reprisal action against an employee for filing a complaint or whistle blowing?
5. Management must bargain in good faith and may not refuse to bargain.
   • Has management changed its policies without giving the union a right to request bargain?
   • Has management refused to negotiate?
   • Has management unilaterally altered the terms of a negotiated agreement?
6. Management may not fail or refuse to cooperate in impasse procedures or decisions.
   • This is issue is normally addressed at the Union level and not at the local office level.
7. Management may not enforce any rule or regulation which conflicts with the collective bargaining agreement once that agreement takes effect.
   • Has management enforced a regulation that is dated after the agreement and conflicts with it?

Merit Systems Protection Board Appeals Procedure

For specific information on how to file MSPB charges, go to Chapter 17.

Note: The Duty of Fair Representation does not include MSPB proceedings.

The Merit Systems Protection Board (MSPB) hears statutory appeals.

Statutory appeals include:

• Adverse actions
• Reductions in force (RIFs)
• Equal employment opportunity (EEO) matters
• Classification appeals

The following questions may help you determine if a statutory appeal is appropriate:

• Adverse Actions: Is there a letter of removal, suspension for more than fourteen (14) days, furlough for thirty (30) days or less, or reduction in grade or pay?
• Reductions-in-Force: Is the employee subject to job loss or downgrading in a reduction-in-force (RIF)?
• Equal Employment Opportunity: Has the employee received different treatment because of his/her –
  - Race
  - Color
  - Creed
  - Sex
  - Age
  - Religion
  - National origin
  - Handicapping condition
  - Political affiliation
  - Marital status
  - Pregnancy

Office of Special Counsel Complaint Procedure 

The Office of Special Counsel (OSC) handles whistleblower protection issues, potential Hatch Act violations, and complaints dealing with the "prohibited personnel practices": 

(1) discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
(2) solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
(3) coerce the political activity of any person;
(4) deceive or willfully obstruct anyone from competing for employment;
(5) influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person;
(6) give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
(7) engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
(8) engage in reprisal for whistleblowing – i.e., take, fail to take, or threaten to take or fail to take a personnel action with respect to any employee or applicant because of any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety (if such disclosure is not barred by law and such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs – if so restricted by law or Executive Order, the disclosure is only protected if made to the Special Counsel, the Inspector General, or comparable agency official);
(9) take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law;
(10) discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others; or
(11) take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans’ preference requirement; and
(12) take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301.

Equal Employment Opportunity Procedure

An employee who feels he/she has been discriminated against based on race, color, religion, sex, nation origin, disability, or age may file either a grievance or an EEO complaint, but not both.  The employee may request a Union representative to assist him/her.  The EEO Counselor may provide information to the complainant.  The employee has 45 days to contact the EEO Counsel after the discriminatory action.  For more information, contact the EEO Counselor, the EEOC website, and read Article 17 of the contract.  

Health & Safety Problems

Employees can pursue worker's compensation claims for on-the-job injuries, can report safety/health violations to the Occupational Safety and Health Administration (OSHA), and can request "reasonable accommodations" from the Employer for issues such as carpel tunnel syndrome. 

Union/Management Council Meetings

The UMC meetings and the partnership process can be a valuable and constructive means to address many problems, especially problems that do not easily fit into other categories.  UMC meetings have addressed traditional labor-management issues such as work schedules, dress code, and promotion qualifications, but also issues such as maintaining clean bathrooms, ways to meet production goals, and celebrations.  See Chapter 12 for more information.