Now let’s turn to the common labor agreement requirement that the grievance include “the article(s) and section(s) violated.” Again, this sounds simple and very often is, but there are important exceptions. 

It is best to begin by going back to the example we used in Part 1 of this series, “Imagine that a big promotion decision was announced yesterday and this morning one of the union’s members, Joe Hill, asked you to file a grievance on his behalf.  He points out that he knows he was on the seven-person Best Qualified list, but was never interviewed despite the contract provision requiring that all those on the BQ list be treated uniformly.”

If the contract article and section requiring that everyone on the BQ list be treated uniformly is Article 13, Section 5(B)(3)(d), the primary rule of thumb is that you should only cite “Article 13, Section 5.”  That is all the contract calls for and you do not know what other violations of Section 5 besides (B)(3)(d) may turn up once you get a chance to review the entire promotion package. Citing the subsections will only tie the union’s hands later.

Moreover, once you attend the grievance meeting do not agree even orally that the only violation is of subsection(B)(3)(d). Until the union has a chance to see the file and get an expert opinion on all possible violations, the steward should only be admitting that the subsection is an example of one violation, but the union reserves it rights to enforce all contract provisions violated once it sees the file.

While that is the most fundamental rule to follow when complying with the contract obligation to cite the article and section violated, there are two other rules. Next up is the idea that the union should look around the same negotiated article for any other provisions that it could cite.  For example, often the first section of a promotion article will include a general obligation that promotions be conducted in a “systematic and equitable manner.” If you find a section like that in your agreement, cite it as well in the grievance. It is much, much better to over cite contract provisions than to leave something out.  Because most arbitrators insist that all words in a labor agreement must be interpreted to have some meaning and force, they are likely to see these additional words this as requiring more of the agency than uniformity of treatment.

The final strategic issue to consider is whether to allege a violation of relevant laws and regulations.  Most every labor agreement contains language obligating the parties to comply with law and governmentwide (OPM, GSA, etc.) regulations. Most also go on to say that any departmental or agency regulation not contradicted by the agreement also remains in effect. Our opinion is that the union should allege a violation of that contract provision in every grievance as well because normally it will have no idea whether Joe Hill was denied an interview because of a ULP, an EEO violation, a Prohibited Personnel practice, or even some sentence in the OPM promotion regulations. By citing what is typically called the “Law and Regulation” article/section of the agreement the union covers a contractual obligation to put the agency on notice as to what articles and sections are involved in the grievance. Moreover, doing so not only buys the union time to get the entire promotion file, but also to conduct legal research if it suspects a statutory or regulatory violation. Federal sector arbitration history is filled with cases where arbitrator did not find violations of negotiated contract provisions, but did find violations of laws or regulations.

Another benefit of broadly citing the contract provisions is that it gives the union a stronger basis for requesting the entire promotion file.  If it had only cited subsection 5(B)(3)(d) the agency would have had a good argument for limiting the information it disclosed to the BQ list and any document showing why it decided who to interview and not interview.

But there is a downside to specifically grieving law and regulation. It gives the agency one more argument that the union cannot now file an EEO or ULP complaint over the same set of facts. Some unions want to split cases and use the EEOC and FLRA because they believe it will help the employee win something. That is a judgement call for each union to make, although we at FEDSMILL lean heavily towards putting all the issues before an arbitrator.

One more tip before we close this post out.  Many grievance articles have a provision requiring that related grievances be joined together for arbitration. If you have missed something in the original grievance that only popped up once you got the promotion file, do not be reluctant to file another grievance and demand that it be joined with the first one in order to save money at arbitration.

(Originally posted July 7, 2021)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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