Not long ago FEDSMILL posted a piece entitled, “Grievance Strategy Issues- Part 4” which examined how specific a grievance must be to avoid several traps that can destroy an otherwise valid allegation.  FLRA just added its own view on this in a decision entitled AFGE, local 1741 and DOJ, FBP, Michigan, 72 FLRA 501 (2021).  Unions had better rethink how specific their grievances are because you can bet the mortgage that agencies are going to start pounding them with this new decision to gut grievances no matter what the past practice is.

In this case, the union grieved the agency’s alleged failure to equitably distribute overtime among bargaining‑unit employees, indicated that it was seeking informal resolution of the matter, and attached a draft grievance to its email.  About a week later, the warden responded to the informal-resolution request and stated that “[t]he information you have provided us in the proposed grievance lacks specificity and clarity.  It does not allow for the agency to sufficiently investigate, research, or respond to the issue at hand.”  The warden also requested the dates of the violations, the names of affected employees, and an explanation of “specifically what was violated.”

The parties’ agreement required that the union “state, with specificity, how any federal prison system directives, executive orders, or statutes identified in Block 5 were violated.”  It also noted that “[t]he parties strongly endorse the concept that grievances should be resolved informally and will always attempt informal resolution at the lowest appropriate level before filing a formal grievance.”

The union ignored the request for more details and invoked arbitration.  It was only after the grievance process was finished and arbitration invoked that the union even submitted an information request to get the very details the agency asked for at Step 1 on the grievance.

When the case got before an arbitrator, she found that the union did not attempt to engage in the informal resolution process required in Article 31.  The arbitrator noted the union president’s testimony that the union would not provide specific information concerning the grievance until after it invoked arbitration.  And the arbitrator further noted that instead of providing the information requested by the warden to proceed with informal resolution and to correct the grievance’s procedural deficiency, the union filed a formal grievance with the regional director.  Based on these findings, the arbitrator concluded that the union failed to comply with the grievance article requirements and denied the grievance.

It was not a mistake for the union to fail to provide all the specific details in its initial grievance. In most situations, a union will only have a few days after learning of a violation to file a timely grievance and therefore can generally only provide detail-lite or conclusionary descriptions of the grievance.  If they wait for all the details the agency is likely to argue the grievance was not filed timely.  Rather the grave error the union committed was its failure to bring out (or even try to bring out) the facts early in the grievance process as part of a joint effort to reach an informal resolution.

Normally, a union can do that by meeting with the agency and jointly looking over the facts, which in this case would have been the recent overtime distribution records.  Where the agency will not cooperate, the union can submit an information request early in the grievance process asking for the agency to give it the records so that the union can unilaterally identify the details of its alleged violations.  But if the union does not even give the agency some details to work with, then even we at Fedsmill believe it is denying the agency the right to respond to a grievance and defend itself. Waiting until arbitration has been invoked to request the information needed for the agency to understand the grievance will likely be seen by most arbitrators as the union’s admission that it did not participate in the grievance process in good faith and get the grievance dismissed as this arbitrator did with FLRA’s blessing. After all, waiting until the arbitration hearing to put the facts before the agency amounts to trying to win the case by surprise and deceit, which is not what the law intended.

FLRA is not saying that unions must put every fact and detail about the grievance into the original grievance.  But it does owe the agency early in the grievance process at least examples of how it violated employee rights, a way to identify the instances of harm, and/or a formal information request that would reveal those facts.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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