GRIEVANCE STRATEGY ISSUES – Part 4
Every contract we have ever seen requires the grievance to describe the alleged violation. Again, that sounds like an easy thing to do, but there are some traps to watch for. Let’s go back to the example we used in Part 1, i.e., 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 #21-09, but was never interviewed despite the contract provision (Article 13, Section 5 ‘Ranking and Selection Obligations’ Subsection (B)(3)(d)), requiring that all those on the BQ list be treated uniformly.” Here are some options for describing the grievance. Pick what you think is the best one.
Option #1 – Joe Hill was not interviewed as were all the other BQ candidates on promotion #21-09.
Option #2 – Joe Hill was not treated uniformly with the other candidates on promotion #21-09.
Option #3 – Joe Hill was not given the full protections of Article 13, Section 5 on promotion #21-09.
Option #4 – Option #3 – Joe Hill was not given the full protections of Article 13, Section 5 on promotion #21-09 as well as those of law and regulation.
Now here are some comments on each of those options.
Option #1 – If this is how you describe the grievance, in all likelihood the only issue you will be able to put before the arbitrator is the decision not to interview him. Any other examples of a failure to treat him uniformly that you come across later in your investigation will be excluded from the grievance as untimely in most cases.
Option #2 – OK, this is a broader description than Option 1 and gives you room to include other examples of non-uniform treatment you run across in the investigation. That’s good, but again you are being too narrow. The contract likely only requires you to cite in the grievance the article and section violated. So, why not describe the grievance even more broadly to state that his rights in Section 5 were violated? If you want to add the uniformity issue as an one example, that is fine. But do not limit the written grievance to that one example.
Option #3 – As we just said, this description is pretty good. The only quibble we might have in terms of covering all the employee’s contract protections is whether you made sure there were no other sections in the Promotion article or in other articles that could have been cited.
Option #4 – Now this is the gold standard example for how to describe this kind of grievance, i.e., one filed on behalf of just one employee involving a single incident. It gets you the right to enforce anything and everything in Section 5 of the Promotion article and it gives you the right to demand a very broad scope of information from the agency to investigate this grievance. After all, by invoking law and regs you can ask for a breakdown of the BQ list by race, gender, age, national origin, etc. to see if there is an arguable disparate treatment argument. You can also ask for copies of prior promotion actions to establish what the prior practice was. It is always possible that an arbitrator might not agree that the obligation to treat everyone on the BQ list “uniformly” required the agency to interview everyone. But if you can show that the past practice was to do that up until the agency changed that practice this time without notice, you have a solid ULP. Some agency officials might call that an unfair taking of two bites at the apple, but who on earth buys an apple to take only one bite. Let them whine, and take as many bites as you can. By citing law and regulation you lay the foundation to establish a much broader particularized need for an information request than you would have by only grieving Section 5.
Raising the EEO and ULP issues in the grievance is a controversial issue right now. The two FLRA Trump appointees have reversed decades of case law precedent stating that whether you raise them or not the employee loses the right to file a separate EEO or ULP action because the grievance is based on similar facts. So, until that is sorted out in the courts and returned to the historically correct interpretation of law, unions should either consult union lawyers for one of the few possible ways around that obstacle to file separate actions or just put the EEO and ULP issues in their grievance.