|Grievances - Chapter 15|
Well before an
employee comes to you with a complaint, you should be familiar with the
negotiated grievance procedure. This
procedure is located in Article 20 of the contract, the latest version
of which went into effect on July 3, 2001.
Even if you have been a Steward for a number of years, you should
familiarize yourself with the provisions of this article as there have
been a number of significant changes and improvements in the grievance
procedure since the previous contract (the September 23, 1991 version).
When an employee comes to you with a complaint, refer to Chapter 14 of this Steward Manual for tips on how to proceed. After investigating the complaint and reviewing the alternatives for resolution, if you have determined that the negotiated grievance procedure is the most appropriate means for seeking correction of the issues giving rise to the complaint then the following information will be useful.
Purpose of a grievance
What is a grievance?
Article 20, Section 2 of our contract defines a "grievance" as follows:
7103(a)(9) of the FSLMRS defines a "grievance" as follows:
(9) "grievance" means any complaint--
(A) by any employee concerning any matter
relating to the employment of the employee;
It is never the goal of NFFE Local 1998 to file a grievance, unless it is necessary and warranted. Any problems or disputes that can be resolved amicably, early, and informally without resorting to a written grievance should be. However, there will be times when a grievance is necessary, and - as explained in Chapter 9 - a Union Rep should never fail to file a grievance and should always be mindful of timeframes and deadlines.
Some Union reps in
the past have been reluctant to file grievances.
Some did not want to “make waves” or impair their
relationship with Management. Avoiding
grievances and settling disputes amicably and informally is always the
best option. Having a
positive relationship with Management is always a good thing, and should
be encouraged. However, human nature being what it is, there will be
inevitably come a point where – regrettably – a grievance must be
filed. At that time, the
Union Steward’s job is to file the grievance.
In a roundabout
way, Management actually expects the Union to file grievances, and if
the Union does not file any grievances, then Management will view the
Union as not doing its job. This
happened back in 1989, when Management attempted to decertify the Local
1998 as the Exclusive Representative of Passport Services’ Bargaining
Unit Employees: http://nffe1998.org/misc_documents/1989%20Petition/petition.htm.
Part of Management’s argument that Local 1998 should be
decertified was the fact that “During the entire three year term of
the current contract, the union has failed to prosecute or advance a
single grievance. Only once
since its recognition in 1982 has the union even proceeded to
So, keep in mind:
What can be grieved?
There are many complaints that can be addressed via the grievance process. Some of these complaints include, but are not limited to, the following issues:
from the grievance procedure
Article 20, Section 3 of the contract lists a number of exclusions from
the grievance procedure. Most
of these exclusions are copied from 5 U.S.C. 7121(c), while the
remainder derive from other legal authorities and decisions.
These matters may not be contested via the grievance
The fact that these
matters are excluded from the grievance procedure does not always mean
that they cannot be contested in another forum.
For example, an employee who disputes the classification of his
position can file a classification appeal, not a grievance.
For example, an Executive Order mandates an administrative appeal
process for an employee whose security clearance is denied, so he/she
may contest that via the Department of State’s appeal process.
actions: “only one bite at the apple”
The Grievance process
action on a complaint
The grievance process begins
after the Union representative has become aware of a potential
violation, usually after an employee has asked the representative for
assistance. For guidance on
how to handle complaints, read Chapter 14 of this Steward Manual.
the result of the complaint investigation is that a grievance is
warranted, then take the following steps:
Union representatives in an office should always keep each other aware
of grievances and complaints as early as possible, and should update
each other on the latest events relating to the grievance – unless
there is a compelling reason offered by the grievant (e.g., conflict of
interest) for keeping one or more of the local office representatives
“out of the loop”.
Union representatives should also keep the Local 1998 leadership
(President, Vice President, Secretary-Treasurer, Recording Secretary,
and Chief Steward) apprised and up-to-date on any grievances filed. The Local 1998 leadership should be contacted for guidance on
grievances, though NFFE Business Representatives may also be contacted
directly (see Chapter 7).
kinds of grievances
are two kinds of grievances that can be filed by the Union:
a step grievance, and
a Grievance Between the Parties.
grievances are covered by Article 20, Section 6 and Section 7.
These include the Informal Grievance, Step 1 Formal Grievance,
Step 2 Formal Grievance, and Step 3 Formal Grievance.
Informal Grievances can be presented orally or in writing, while
the other steps must be submitted in writing.
Local office Union representatives – Senior Stewards and Union
Stewards – generally file Informal Grievances, Step 1 Formal
Grievances, and Step 2 Formal Grievances.
Occasionally someone in the Local 1998 leadership may file one of
these grievances on behalf of an employee.
For Step 3 Formal Grievances, generally those are filed by a
member of the Local 1998 leadership.
The reason for this is that they are being filed with HQ, and
they are the last step prior to possibly invoking arbitration.
Between the Parties are covered by Article 20, Section 8.
These are only filed by a member of the Local 1998
leadership, usually the Union President.
They are filed with the Deputy Assistant Secretary of State for
Passport Services, and they must be submitted in writing.
A grievance has to be filed by the deadline specified in the contract. The deadlines can be extended by mutual agreement.
is the responsibility of the Senior Steward and Union Steward in each
office to ensure that deadlines for filing grievances are met. Simply because guidance has been sought on filing a grievance
does not turn the matter completely over to the Local 1998 leadership or
a NFFE Business Representative.
of missing deadlines
Management fails to meet a deadline, then the grievance is simply
elevated to the next level.
That means that the Union may file a higher level grievance,
within the specified deadline – that clock starts ticking on the date
that the Management response was due, even if none is received.
See Article 20, Section 7j.
the Union or the individual grievance fails to meet a deadline, then the
grievance may be terminated, with no recourse.
This is why it is vitally important to meet the deadlines.
should have been aware”
the initial Informal Grievance, the deadline is 30 days from the act or
occurrence, “or the date the employee was aware or reasonably should
have been aware of the act or occurrence”, per Article 20, Section 6a.
This means that if an event happened in January, for example, but
the employee was not aware of this event (e.g., he/she did not receive a
copy of an appraisal) until May, then the employee may file the
grievance within 30 days of the date in May that he/she learned of the
act or occurrence.
Grievance Flow Chart
following guide serves only as a general reference to the complaint
process. The contract should always be consulted when filing a
If you are going to
present an Informal grievance orally instead of in writing, or if you
are initiating or invited to attend a grievance meeting with Management,
there are some key points to keep in mind in order to effectively make
your case. In addition,
meetings between Management and any employee regarding a grievance –
grievance discussions – are formal meetings (see Chapter 9), and
Management must invite you to attend (whether or not you filed the
grievance for the employee), so these points may be useful in that
context as well.
your facts ready
them save face
when to stop talking
and Alternate Dispute Resolution (ADR)
Article 21, Section 1 of the contract provides for
Alternate Dispute Resolution of disputes through grievance mediation
offered by the Federal Mediation and Conciliation Service (FMCS).
According to the first paragraph of Article 21, Section 1,
grievance mediation can occur between Step 1 and Step 2 of the grievance
process. However, the
parties have used ADR at other steps of the grievance process as well.
involves the intervention of an acceptable, neutral, third party into
the dispute process.
Mediators have no decision making authority in the dispute.
They do not work for Management, but rather for FMCS, which is an
used in a grievance, EEO complaint, or appellate process, ADR attempts
to lessen the adversarial relationship and create an atmosphere for
allows the parties to explore possible remedies to the grievance,
complaint, or appeal and develop an acceptable resolution without the
use of a formal third party decision maker such as an arbitrator or
administrative law judge.
must have the authority to resolve the issue(s) and enter into a binding
Exception would be agency-head review of a negotiated labor
case of a grievance, EEO complaint, or other appeal process, parties are
usually asked to sign a statement that:
“if an agreement is not reached, neither party will use any of
the information developed during the process in any formal proceeding
following the failed ADR process.”
This includes the calling of the third party as a witness.If an
agreement is reached, it will be reduced to writing as a Memorandum of
Understanding (“MOU”) or Memorandum of Agreement (“MOA”).
The agreement is enforceable and information developed during the
process may be used to enforce a signed agreement.
is the process by which an
impartial third party renders a decision on a grievance.
Arbitration is governed by Article 22 of the contract.
The arbitrator is independent and does not work for the
Department of State – usually he/she does not work for the government
at all. Arbitrators
interpret and apply the terms of the contract (including established
practices) and laws and regulations bearing on conditions
of employment. Once
arbitration is invoked, the parties contact FMCS to obtain a list of
seven arbitrators. 5 U.S.C. Section 7121(b)(1)(C)(iii) mandates that negotiated
grievance procedures provide for binding arbitration of unsettled grievances.
of the Local 1998 leadership and NFFE Business Representatives
cases are handled by the Local 1998 leadership and/or by NFFE Business
Representatives. In some
cases, the Union may hire outside legal counsel.
Senior Stewards and Union Stewards do not represent the Union at
arbitration, unless they have sufficient training and experience, and
have been specifically designated as the Union’s authorized
representative by the Local 1998 Executive Board.
The reason for this is that arbitration is a very intense, very
complicated, very high risk endeavor which requires the most qualified
and experienced representatives that the Union has to argue the case.
At stake are the outcome of the grievance, possible precedents
that affect the rest of the bargaining unit, Duty of Fair representation
consequences (see Chapter 9), and the dues paid by the members (if the
follows a similar policy – for example, Regional Directors,
Adjudication Managers, etc. do not argue the case for Management in an
arbitration hearing. Rather,
Management sends either the Department of State’s Chief
Labor-Management Negotiator and one Department of State employee
relations attorney or Management sends two attorneys to advocate
a Union representative needs to know before invoking arbitration
How to write a
for writing the grievance for Senior Stewards and Stewards
of evidence required – preponderance or substantial
are making an argument or submitting evidence with a grievance (which is
not required – see “A 3-sentence Grievance” in this chapter) then
in some cases it is necessary to establish the case with a
“preponderance of evidence” or “substantial evidence”.
For most grievances, it is simply necessary to make a persuasive
argument for the Union's position.
Evidence: “The degree
of relevant evidence that a reasonable person, considering the record as
a whole, might accept as adequate to support a conclusion, even though
other reasonable persons might disagree.”
This is used as the standard of proof in all adverse actions
processed under 5 U.S.C. Chapter 43 (Performance-based actions – also
see Article 23).
of Evidence: “Degree
of relevant evidence that a reasonable person, considering the record as
a whole, would accept as sufficient to find a contested fact is more
likely to be true than untrue.”
This is the standard of proof required in any discipline/adverse action
initiated under Chapter 75 (Misconduct – also see Article 24).
Same standard of proof is necessary to support an affirmative
defense or when grieving/appealing an action the employer allegedly
failed to take or when making an allegation of discrimination or
A 3-sentence grievance
That is a complete and valid
Type of Grievance
of the grievance
Three options are given below, but there are many others.
Three options are given below, but there are many others.
state what happened and why it was a violation.
Relevant Legal Authorities
Facts of the Case
to Management’s Denial of Earlier Grievance
|Main Article||Grievance Sample|
|Article 6||Respect & Dignity (Step 1) - September 9, 2005|
|Article 7||Official Time - May 13, 2004|
|Official Time - November 8, 2004|
|Official Time - April 21, 2005|
|Article 8||Moving Employees' Desks (Step 1) - January 18, 2006|
|Moving Employees' Desks (Step 2) - February 28, 2006|
|Moving Employees' Desks (Step 3) - April 21, 2006|
|Office Space - June 2, 2002|
|Office Space - September 29, 2005|
|Article 9||Dues Deductions - August 8, 2002|
|Article 15||GS-9 to GS-11 Promotion (Step 1) - December 20, 2002|
|GS-7 to GS-9 Promotion (Step 1) - January 28, 2002|
|GS-4 to GS-5 Promotion (Step 1) - November 9, 2001|
|GS-4 to GS-5 Promotion (Step 2) - December 5, 2001|
|GS-9 to GS-11 Promotion (Step 1) - August 24, 2005|
|GS-9 to GS-11 Promotion (Step 2) - June 2, 2006|
|GS-3 to GS-4 Promotion (Informal) - March 3, 2006|
|GS-5 to GS-6 Promotion (Step 1)|
|GS-5 to GS-6 Promotion (Step 2)|
|GS-5 to GS-6 Promotion (Step 3)|
|Article 18||Unfair Annual Appraisal/Procedure (Informal) - March 21, 2003|
|Unfair Annual Appraisal/Procedure (Step 1) - April 22, 2003|
|Complexity & Overall Rating - May 9, 2003|
|National Standards Study - September 16, 2003|
|Adjudication Standards - January 30, 2004|
|AFPM/ACSM Elimination - April 8, 2004|
|Unfair Annual Appraisal (Informal) - March 4, 2005|
|Unfair Annual Appraisal (Informal) - March 14, 2005|
|Unfair Annual Appraisal (Step 1) April 8, 2005|
|Unfair Annual Appraisal (Step 2) May 10, 2005|
|Unfair Annual Appraisal (Step 3) - June 8, 2006|
|Unfair Annual Appraisal (Informal) - March 6, 2006|
|Unfair Annual Appraisal (Step 1) - April 17, 2006|
|Unfair Annual Appraisal (Step 2) - May 11, 2006|
|Unfair Annual Appraisal (Informal) - April 7, 2006|
|Unreasonable New Performance Standards (Informal) - March 17, 2006|
|Unfair Measurement of OT Desk Adjudication - March 30, 2007|
|Article 24||Five-Day Suspension - August 29, 2003|
|Letter of Reprimand - April 26, 2005|
|Article 26||CWS Termination - July 25, 2003|
|CWS Implementation (Informal) - September 21, 2002|
|CWS Implementation (Step 1) - October 9, 2001|
|Part-Time - June 21, 2002|
|Removal from CWS (Step 3) - January 19, 2007|
|Forced Participation on 4/10 CWS w/Night Shift (Step 3) - January 15, 2008|
|Article 27||Duty Officer Rotation - January 19, 2007|
|Article 28||Overtime Policy - May 19, 2005|
|Overtime Access - January 13, 2006|
|Mandatory Overtime - April 13, 2007|
|Article 29||FLSA Status - April 20, 2004|
|Article 31||AWOL - September 24, 2002|
|AWOL - December 12, 2003|
|Tardiness (Informal) - March 3, 2006|
|Administrative Leave Grievance - January 20, 2005|
|Sick Leave (Informal) - November 28, 2005|
|Article 32||Health & Safety (Step 1)|
|Health & Safety (Step 2) - February 1, 2006|
|Health & Safety (Step 3) - March 21, 2006|
Sample Information Requests
|Article 24||Request for Disciplinary Information - May 24, 2002|
|Article 29||FLSA Status - April 20, 2004 (Information Request after the Grievance)|