GRIEVANCE STRATEGY ISSUES – Part 3
The third typical requirement of every grievance is that the union note the date of the alleged violation or the date it became aware of the violation. Not only can that be more complicated than it seems, but agencies insist on a date for a very important reason. Forcing a union to file a grievance within 15 or 20 workdays of an objectionable incident creates the potential for the agency that the employee or union rep will dawdle to the point that they miss the deadline and relieve the agency of any liability. In most cases it also means that even where the agency has been violating a contract provision for months or years the union can only get back pay starting 15 or 20 days before the day it filed the grievance. There are ways around both of those obstacles and that is what this post is about.
Let’s start with the example we have used in the two previous posts in this series– with a small modification. Imagine that a big promotion decision was announced yesterday. It was the third announced over the last six weeks with about another half-dozen to be announced over the two months. Then early this morning one of the union’s members, Joe Hill, asked you to file a grievance on his behalf. He pointed out that he knew he was on the seven-person Best Qualified list, but was never interviewed like others were despite the contract provision requiring that all those on the BQ list be treated uniformly.
If your contract requires grievances be filed within 20 calendar days of a violation or the date you became aware of a violation, you have a choice of filing today or waiting the full 20 days to see if another promotion is announced or if you can find out if any other employee was similarly mistreated like Joe Hill on the same promotion action of prior ones. Grouping multiple violations would reduce arbitration costs, but as we have pointed out in prior posts in this series it is also likely to water down the value of any priority consideration entitlement Joe Hill gets.
But what do you do if you cannot find out anything about the prior promotion actions within the 20-day time limit? You can allege that there were similar violations in those promotions, but a sharp employer will respond that since you seem to know that you had to have filed a grievance within 20 days of those violations. Because you did not, you lost the chance to remedy those earlier violations. Another defense an employer is likely to raise is that even if a grievance challenging those prior promotions is timely, the union is only entitled to a remedy for infractions that occurred during the 20 days before it filed the grievance. This is called the grievance recovery period defense. Check out “What is a Grievance Recovery Period?” for a longer explanation of that defense.
On top of that you have no idea why the employer chose to not interview select people on the BQ list. It could very well be due to some form of illegal discrimination, a ULP, or even a prohibited personnel practice. Again, you can allege any of those were involved, but the employer is likely to respond that given you know that now, you can’t challenge any action older than 20 days.
Here is the safest solution. File a timely grievance on behalf of Joe Hill or if you want on behalf of any similarly situated bargaining unit employee on that promotion action. Doing the latter will be a great act of charity toward non-members who might also have been passed over, get the same priority consideration Joe gets and get selected over Joe. It will likely ease your way into Heaven, but do nothing to help you with actual union members.
At the same time or even before you file Joe’s grievance file an information request for copies of the prior promotion packages to see if anyone else on the BQ lists was not given an interview or treated uniformly. Given that you do not yet KNOW anything for sure about what went on in those actions, under most contracts your deadline for filing on those prior actions does not begin to run until you do know with some certainty. And that certainty would not occur until you have the promotion papers in hand. Check out HCFA and AFGE, 56 FLRA 156 (2000) for a case noting that unions are entitled to information in connection with potential grievances. Using this approach should enable you to void the employer’s grievance recovery period defense and give you time to determine whether the denial of interviews for some employees was motivated by illegal reasons rather than simple contract violations.
Often union reps think they can just allege that the recent incident they are now grieving is just the tip of an iceberg of a “continuing violations” of the agreement, regulation, or law. That may be, but if we were the employer in that situation we would respond that because you know that you can only get a remedy back to 20 days before you filed the grievance. We may not win that argument, but it is a legitimate defense once the union claims in a grievance that at some point it became certain that there was a violation into the past.