HOW SPECIFIC MUST GROUP GRIEVANCES BE?
Is the following a legitimate grievance: “Local X007 alleges on behalf of impacted employees that the agency violated the compensation rights of employees at various offices over the last six years and asks that those employees not only receive back pay with interest but that the agency also pay any attorney fee entitlements and change its compensation system to avoid similar errors in the future. Joey Baloney will represent the union and can be reached at JBaloney@erolz.com.”
Most parties avoid fighting over the adequacy of a grievance by describing in their contracts what must be in a grievance. Typically, those contracts require the grievance contain (1) the name of the employee-grievant or other identification of which bargaining unit employees the grievance is being filed on behalf of, (2) a brief description of which contract Article and Section the union is violating, and (3) a description of the corrective action or remedy the union wants. But what about those situations where the contract is not clear on the details required in a grievance? What happens then?
In all likelihood, the union can expect the agency to allege that the so-called grievance does not meet the common sense requirements of a grievance. There are a number of ways to flesh out that defense, as outlined below.
First, expect the agency to argue that the grievance does not meet the statutory definition of a grievance. Title 5 USC 7103(a)(9) defines a grievance as any complaint concerning— “(i) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or (ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.” The grievance statement above doesn’t provide a clue as to what was violated, e.g., an agreement, a law, a regulation, or rule. Nor does it offer even a remote hint of what the violation is.
While neither law nor regulation detail just how specific a grievance must be, they do offer two benchmarks that are helpful. Regulations (5 CFR 2423.4(a)(5)) require that in order to file a ULP charge with FLRA a party must provide, “A clear and concise statement of the facts alleged to constitute an unfair labor practice, a statement of the section(s) and paragraph(s) of the Federal Service Labor-Management Relations Statute alleged to have been violated, and the date and place of occurrence of the particular act.” The grievance in our hypothetical does not contain facts, a date, a place or cite a section of anything. In applying this regulation the Authority has said that the charging party must give the other party sufficient or adequate notice of what it is being accused of. (See DoAg, FNS and AFGE, 59 FLRA 68 (2003) and U.S. Penitentiary, Florence, Colo. and AFGE, 53 FLRA 1393 (1998).) In our hypothetical grievance the agency does not know whether it is being accused a slave labor, minor wage theft, or failing to properly round up to the next highest cent in one or more paychecks. Expect an agency to argue that given what is required for a ULP charge, the contents of a grievance filed under the same statute should resemble the content of a charge.
Moreover, the Authority also has spelled out in repeated cases what it considers to be “adequate notice” of an agency’s proposed change in an employment condition, namely, the nature, scope, timing and loss or harm. Don’t be surprised if an agency throws that line of precedent right back in the union’s face. Grievances are a form of collective bargaining negotiations, which is why, for example, the statutory access to information section (7114(b)(4)) applies to grievances even though there is no mention of grievances in that section, just negotiations. Consequently, an agency will argue, the same “good faith” obligation that applies to bargaining also applies throughout the collective bargaining relationship. No one will argue that a grievance should meet all the requirements of a properly filed lawsuit, but neither should an agency have guess at what it might have done wrong.
Second, another statutory argument likely to play a role flows from the 5 USC 7121(b)(1)(A) requirement that grievance procedures be “fair.” The statute does not grant the fairness entitlement to only employees or unions. Agencies are also entitled to it and the haziness of our hypothetical grievance above likely falls outside the bounds of fairness for a few reasons. It does not permit the agency to defend itself without doing a complete payroll audit on every employee for at least the last six years, which is the statute of limitations for claiming back pay (See also Laches). If the agency rejects this grievance and the union invokes arbitration the agency will show up at the hearing without a clue as to what law, regulation, contract provision, or past practice it needs to defend itself under. It will be forced to defend itself against facts and arguments it is hearing for the first time before an arbitrator. That is generally considered to be unfair to agencies by most arbitrators. (In fact, 5 USC 7123 inscribes that concept in law with respect to filing appeals with FLRA or arbitration claims or filing appeals in court of FLRA decisions.)
If neither of those meet your inner definition of fairness, try this. Even if the agency agreed with this grievance it would have no idea what its liability was, who is due retroactive pay, etc. The situation is so unfair that the agency cannot even agree with the union and fix the problem. An agency willing to play mind games with the union could accept a very vaguely worded grievance like the one above. That would arguably deny an arbitrator any jurisdiction because there is no dispute. The union would then have to come forth with the details of its claim if it wanted a remedy. At that point the agency could claim those facts were different than the grievance it accepted or challenge the application of a remedy to each named grievant.
Third, those who file blurry grievances should also expect the agency to go on the offensive against them, especially where the grievance is filed on behalf of employees by a national union. A grievance such as posed above is likely a thinly veiled attempt by the union to avoid doing a proper investigation of the facts before filing. The statute (5 USC 7131) and every contract we have read gives union reps official time to investigate a grievance before filing so that there is little risk of filing an overly vague, inadequate grievance and being dismissed on procedural grounds. When a union makes a nebulous claim, as our example surely is, it can fairly be accused to trying to delay the proper investigation of the case until after an arbitrator has ruled there has been a violation. Why? Because if the detailed records are reviewed after the arbitrator has found a basic violation the union can usually claim attorney fees for the time spent investigating that it cannot get for investigatory time spent before the arbitration hearing. They get an even bigger windfall if the arbitrator orders the agency to do the investigation and present its findings to the union for mere review on billable attorney fee hours.
Fourth, a particularly imaginative agency is going to do something with the Supreme Court ruling known as Wal-mart Stores v. Dukes, 131 S. Ct 2541 (2011). That case ripped the guts out of the ability of employees to file class action claims. While grievances filed on behalf of groups of employees are not technically class actions, the Court legitimized the idea that when a group of employees are involved in a single claim of injustice, “Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Consequently, if the union’s claim turns out to involve different facts for one or more employees or different violations of law, regulation, contract or practice, an agency could argue that, in fairness, it is entitled to a more narrow grievance.
Aside from the arguments an agency can raise to resist a vague grievance and force the union to refile, unions should not lose sight of their financial liabilities. If a union filed the grievance described at the outset on 1/1/14 and it took until 1/1/16 to get an arbitrator’s ruling that its grievance was inadequate and therefore not a grievance, it would likely have forfeited two years off any ultimately successful claim it has, e.g., two years of back pay and interest. Aside from exposing themselves to some employee’s ULP claim charging them with gross negligence and asking that the union cover this losses, such an error harmful to a large group of people could lead to a decertification petition.
There will certainly be situations where dozens, if not hundreds, of employees have been harmed by some agency error. We are not suggesting that the union must identify the names of all grievants and the specific harm each suffered. An acceptable mid-ground between the two poles of great haziness and crushingly specific details would be for the union to identify a handful of grievants and process the grievance by focusing on them as representative of all grievants. That would enable the agency to defend itself and gauge its liability. It would also enable an arbitrator to deliver a back pay remedy that meets the FLRA requirements of finding a direct causal connection between a violation of an employee’s rights and his/her loss of pay or benefits that s/he otherwise would have received. Arbitrators can’t order back pay for unidentified employees.