BEHOLD! THE MEGA GRIEVANCE OPTION
Twenty years ago if Sherman, our hypothetical disappointed non-selected employee, walked into the union office complaining that he thought the promotion interview questions were chosen to make one particular applicant look better than all the others, the union would have probably filed a grievance on behalf of Sherman. Ten years ago most unions had recognized that they should file a grievance on behalf of everyone in the promotion package. That covers any others also potentially harmed and boosts the chances of getting some remedy should Sherman not be the one entitled to corrective action. Today, more and more union reps know that there is an even better approach, namely, the class action and the mega grievances which generate clout for the union far beyond the grievance process.
Let’s assume that Sherman is a GS-2210-12 Information Specialist who applied for a GS-2210-13 opening. And let’s also assume that the agency filled the GS-2201-13 job in 30 locations throughout the country over the last months via separate local announcements. These 30 were only part of the over 1,000 promotions the agency makes each year in your nationwide, 50-location bargaining unit. Finally, let’s assume that the union knows that the individual promotion interview panels make up the questions each time a job is to be filled and that an applicant’s interview score accounts for 10% of his/her total ranking score as required by the contract. So what are the union’s options when a Sherman comes looking for help?
Option 1– The union could represent Sherman in a grievance he files, but that limits management’s corrective action liability to one person in one promotion action, at worst. Moreover, even if the agency promotion was wrong and it must take corrective action, lots of things could happen to Sherman to render the issue moot, e.g., he could get promoted before the grievance/arbitration is concluded, he could leave the agency, he could get cold feet and withdraw the grievance for some reason, he might not qualify for the particular remedy an arbitrator imposes, etc. Most LR specialists will not lose sleep over this kind of grievance.
Option 2– The union could represent Sherman when he files and also file a grievance on behalf of all unit employees involved in the particular promotion action Sherman competed in for your local office. That boosts management’s liability because even if Sherman drops his grievance for whatever reason the union can still pursue through its grievance a remedy for everyone else harmed by the alleged pre-selection rigging of the promotion process. LR has a little more to worry about here, but this is still a run of the mill grievance as far as management is concerned.
Option 3– The union could use Sherman’s situation to file its a grievance on behalf of every unit employee who applied for any of the GS-2201-13 vacancies anywhere in the country. It could target all those 2201-13 vacancies filled during the last thirty days (or whatever number of days the contract allows to file a grievance) or it could file alleging a continuing violation, such as that the selection of interview questions by each interview panel violates some contract provision for fair and equitable treatment, the 5 CFR 335 requirement for a systematic promotion process, the 5 CFR 300 requirement to base any promotion measurement device on a rigorous job analysis, a prohibited personnel practice, etc. This approach significantly raises management’s liability. Not only is it now likely obligated to give the union the package for many, many GS-2210-13 promotions over a period of time, but the scope and nature of the potential remedy increased dramatically. Now the agency might have to provide remedies to dozens of people all over the country if the arbitrator rules that the ad hoc, make-it-up-as-you-go interview question selection process was invalid and orders (a) promotion scores adjusted to delete interview-based points, (b) BQ lists reconstructed, (c) priority consideration given to anyone who would have ranked higher on the list, (d) selections vacated if the original selectee could not have been on the BQ list once scores were adjusted, and (e) where selections were vacated the new BQ list used to select someone retroactively with back pay and attorney fees for the union. Turning Sherman’s original grievance into a nationwide attack on the process used to fill GS-2201-13 jobs will be a very big deal to the head of the Information System Division of the agency. He/she should now be highly motivated to settle this case before the next few dozen GS-2210-13 vacancies are filled solely from priority consideration candidates rather than any competitively ranked applicant. The IS director and HR director should also worry seriously that they may be forced to undertake a valid job analysis to justify future interview processes; that is time and money from their staffing and budget.
Under this option the union turned Sherman’s simple complaint into a kind of class action grievance that carries so much risk for management that the agency leaders (or at least the HR and IS leaders) should be seriously motivated to work out a long-term compromise. If they do not, then the union potentially could be delivering remedies to IS employees all over the country, boosting its visibility, credibility, and reputation. If dozens of employees earned priority considerations, each of them would suddenly have a very good reason to stay in the good graces of the union leaders whose help might soon be needed to enforce that priority. Think new members.
Of course, the union likely would have to file the grievance at the unit-wide level. That might mean that Sherman’s local loses control over how the grievance proceeds, but not necessarily. Sherman’s local could agree to represent Sherman in his individual grievance and leave it to the head of the union’s nationwide unit to file “on behalf of all impacted unit employees involved in any and all GS-2210-13 promotion actions.”
Option 4– As the game show folks say, “But we are not finished yet.” The union also gets the option to use Sherman’s single situation to file a nationwide grievance attacking the ad hoc, make-it-up-as-you-go interview question selection process in any promotion action taken during the grievance filing period and all future promotion actions, not just GS-2210-13 vacancies. If Option 3 is considered a “class action grievance,” this option should be called the “mega grievance” option. Now the fallout could land on the managers in every division, not just IS and HR. Rationally, that should ramp up settlement potential even higher. If not, a potential victory at arbitration would exponentially increase the union’s visibility, credibility and clout.
(A side benefit of Options 3 and 4 is that they can discredit HR/LR specialists in the eyes of their bosses. For example, if some HR official originally said the complained of practice was legit and then is not only proven wrong but brings a mega remedy down on large numbers of managers, that HR person will likely lose face and credibility, weakening his/her ability to sell the organization on future efforts to ignore the union.)
Another reason to consider this a mega grievance option is that once the union does it successfully, it should have more power at the next term bargaining table. For example, suppose the union entered term bargaining wanting the agency to change some other part of the promotion process, such as how it awards promotion points for performance awards employees have received. Typically, management will oppose any future union intrusion into any process. But now the union will be able to inform management that either the parties negotiate a solution as part of term negotiations or the union is likely to challenge the current process once the contract is done by filing a mega grievance. If management is at all rational, it should try to work out a term table solution rather than spend energy fighting any change term contract changes and losing the opportunity to settle that issue as part of a package of issues without any future liabilities. After all, even though the union may not get its most desirable contract change fixing the awards point issue if it is addressed as part of term bargaining, it will be hard pressed to challenge its own negotiated solution during the life of the contract. That would undermine its bargaining table credibility with management and lead unit employees to question why the union agreed to the provision in the first place if it knew it was improper.
Class action and mega grievance strategies have been used to attack agency-imposed overtime practices, promotion devices, appraisal glitches, cash award distributions, QSI grants, AWS errors, and a few other personnel actions. Just search the FLRA.gov decision web site on the keywords “class action.” Here is one case where the union used the civil rights act to successfully attack all agency annual award decisions (NTEU, 63 FLRA 505 (2009)) and another that produced 1,400 priority consideration grants from one grievance (NTEU, 61 FLRA 226 (2005) Often the union has walked away with millions, if not tens of millions, in back pay for members and a lot more respect from employees and managers. In our opinion, any time a local union finds a violation of contract, regulation or law that is likely occurring repeatedly and elsewhere in the unit outside the single local’s jurisdiction, it should contact whoever runs the larger multi-local unit and raise the possibility of escalating the issue via a mega grievance.