GRIEVANCE DRAFTING TIPS 1, 2 & 3
Most contracts merely require the union to put the following in the grievance: 1- Article and section violated, 2- Description of the grieved event, and 3- Remedy desired. As clear as that or similar language appears, there are some drafting tips that will boost your chances of winning.
#1. If the contract only requires that you cite the article and section violated, do not cite subsections or even particular sentences. You may think you are being helpful to management, but what you are doing is reducing the scope of a grievance. For example, suppose you filed a grievance citing Article X, Section X(c)(2)(A) of your contract because that section contained all the steps management must take to discipline an employee and subsection (c)(2)(A) is the particular step you already know that management botched. But now suppose that once you get the discipline file you find that management missed a couple of other steps required by that section that are not listed in subsection (c)(2)(A). Because you wrote the grievance so narrowly, you probably have to file a second grievance and potentially take the additional violations to another arbitration. Unless the contract or management lets you, you cannot add to the grievance after the filing deadline has passed. Had you just cited Section X, your grievance would have covered any other violations you found along the way. Feel free in the grievance meeting to tell management which specific subsections you are targeting, but make sure it knows that you retain the right to pursue any violation of the cited section.
#2. Beyond citing contract provisions violated, consider also alleging an unfair labor practice violation, particularly a failure to bargain in good faith due to a unilateral change in working conditions allegation (5 USC 7116(a)(5)). Here is an example why that can help. If management has always interpreted the contract requirement to give employees a “reasonable amount of time” to complete promotion applications as four hours per application, but suddenly limits them to one hour, you probably have a contract violation. But you also probably have a ULP violation, i.e., a unilateral change in working conditions.
By citing a ULP violation, you give the union a second chance to win the case. Should the arbitrator decide that the contract expression “reasonable time” gives management the discretion to drop from four to one hour, he can nonetheless give the union a victory by ruling that it was a violation of the law for management to make that change without first notifying the union and bargaining. In other words, by citing a ULP allegation you empower the arbitrator to find management had the substantive right to cut the hours, but that it could do so only after giving the union notice and bargaining over at least the impact and implementation of the change. That should be enough to get the union a status quo ante order and back pay.
#3. A third suggestion for drafting the scope of the grievance is that you include with the citation to the article, section and ULP provision the words, “and all other related laws and regulations violated.” This should clearly enable any arbitrator to enforce a law or regulation related to the nature of the violation. Here is how that can work to your advantage. Suppose you cited in a grievance contract language saying that “all promotion assessments must be fair,” and that you alleged that management established the assessment criteria unilaterally, constituting a ULP.
An arbitrator could easily find that while not the best assessment, it was “fair” and that it had not been changed in the last six months. So, you would lose on those issues. But if you also alleged violations of laws and regulations, you get a third bite at the apple because in the federal sector arbitrator MUST follow all law and regulations.
Well, it just so happens that 5 CFR 300 requires that all promotion assessment criteria be supported by a formal “job analysis” showing there to be a professionally validated rational link between the criteria and successful performance in the vacant position. It also requires that these criteria avoid adversely impacting any protected civil rights classes. Had you alleged violations of related law and regulation you would be able to raise this at any time in the grievance. Check out this case for an example.
(This article was first posted on Fedsmill in 2011.) More Grievance Drafting tips will follow in a few days. Keep checking with Fedsmill or subscribe to get notices of new postings. You can subscribe by going into the Contacts page on the black menu bar under the windmill and entering your information.)