Article 43
Bargaining History
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The parties fashioned an entirely new approach and philosophy to the handling of grievances. The new grievance procedure reflects the manner in which the Department and Local 12 wish to relate to each other institutionally and their desire to expand this to the work site. This new approach is intended to foster labor-management cooperation at the work site and focus upon mutual respect and problem resolution between employees and their supervisors.

While this Article provides a formal grievance machinery, it is the parties' intent that it be utilized only as a last resort. That is, to the maximum extent possible, supervisors and employees and stewards should feel free and are encouraged to discuss matters of mutual concern in a non-adversarial manner, deal with issues and not personalities, and attempt to resolve such issues informally. While this is the intent, the parties also recognize that good faith disagreement on issues can exist in a cooperative relationship and that an "agreement to disagree" is always possible.

If the filing of a grievance becomes necessary, it is the parties' desire that the grievance be resolved at the earliest time and at the lowest level possible. It is recognized that in any grievance process, if a grievance escalates to higher levels or as more time passes, the grievance becomes more difficult to resolve. The new Step 1 procedure contemplates that the parties to the grievance focus on the problem or concern rather than legal or technical issues. Thus, the grievance form at Step 1 need contain only the basic facts or concerns of the grievant and may omit any specific references to contractual provisions, regulations, or requested remedy. The intent is to provide for a grievance meeting where the respective participants can discuss the matter which gave rise to the grievance in a more informal fashion, focus on the facts and concerns of the grievant, and explore possible resolution without being primarily burdened with technical or regulatory matters, or preparing a case for arbitration. No written decision is required at Step 1 if the supervisor can respond orally at the meeting. If done so, the supervisor may confirm the oral decision in writing (for the record). The Agreement calls for the Step 1 meeting to be arranged with the Union steward to avoid the appearance of improper discussion between the supervisor and the grievant (without the presence of the Union steward).

It is normally expected that a Step 1 grievance will be filed with an employee's immediate supervisor. However, on occasion it may make sense for a grievance to be filed elsewhere. If such a question arises on the part of either the grievant/Union or Management, the question should immediately be discussed between the Union's Agency Chief Steward and the servicing Labor Relations Officer. They may agree that the grievance should be filed elsewhere and the grievance is then filed and processed accordingly. If they cannot agree, then the grievance is filed and processed with the immediate supervisor. It is understood that at the Step 1 meeting, the supervisor may request the Agency Labor Relations Officer to be present. The parties also acknowledge that technical experts may be present but that the meeting remains between the immediate supervisor, the grievant, and the Union.

Step 2 of the grievance procedure was totally revised. Step 2 is intended to be a fine tuning of Step 1, requiring more specificity from the grievant and Union, but the focus remaining on problem resolution. The parties acknowledged that the "factfinding" process under the prior Agreement had not worked as intended to resolve matters at Step 2. Thus, instead, a meeting will now occur between the grievant, the Union representative, and a higher level Management official. In balancing the desire to maintain a 2-step procedure for expediency and still focus on the issue(s) being resolved at the lowest level possible, the parties decided to elevate grievances at Step 2 to the highest "career program manager." The parties will agree upon a list of the Agency positions in the various organizational units in the Department where Step 2 appeals are to be filed, and the list will be made known to employees, managers, and supervisors.
Again, the meeting should be arranged with the Union representative.

At Steps 1 and 2, Union representation will normally come from among the Agency's designated stewards. Exceptions may be made by the Local 12 President in accordance with Article 41. At Step 1, such exceptions should not be made routinely. However, it is understood that these exceptions may be more frequent at Step 2. For the purpose of representation at Step 2, Agencies (other than the Office of the Assistant Secretary for Administration and Management) serviced by the National Capital Service Center shall be considered one area of jurisdiction. These Agencies include all components of the Office of the Secretary, Bureau of International Labor Affairs, Office of Labor-Management Standards, Pension and Welfare Benefits Administration, Veterans' Employment and Training Service, and the President's Committee on Employment of People with Disabilities.

While the joint factfinding process has been replaced, it is understood that the Union representative at Step 2 is still entitled to reasonable official time to prepare for the Step 2 meeting. Such time includes reviewing relevant documents or information and speaking to individuals with relevant information concerning the grievance. Understanding that no one can be compelled to speak to the Union representative, the parties desire that all relevant facts be made known so that neither party proceed in ignorance of important facts. Additionally, while it is desirable for the grievant/Union to submit any information or documents in support of the grievance when the grievance is initially filed at Step 2, the grievant/Union may submit additional information or documents at the Step 2 meeting for consideration by the Management official.

The parties agreed to maintain the language in this Article with respect to reasonable official time, but clarified its meaning. In specifying that "reasonable" means that amount of time needed to perform the representation, the parties agreed this was not left to the subjective determination of the representative. Rather, a "rule of reason" would apply -- i.e., given the particular fact situation, what a reasonable person under normal circumstances could be expected to use and balancing this against the needs of the Agency to get its work completed.

In laying out the grievance procedure in this Article, the parties understand that a supervisor or manager is not precluded from holding other informal discussions with the Union steward and employee in an attempt to informally resolve the grievance. However, a supervisor may not discuss the grievance with the employee without also giving the Union the opportunity to be present at the discussion.

The changes in both Step 1 and Step 2 necessitated a change in dealing with the issue of grievability/arbitrability. With the informal nature of Step 1 and the focus on problem resolution remaining at Step 2, the parties did not desire either Management or the grievant/Union to get overly hung up on the issue of grievability to the extent that it would detract from a good faith effort to resolve the grievance. Thus, Management still has the obligation to advise the grievant and Union of any concerns over the grievability of a matter at the earliest time practicable. It is understood that when such a concern arises, it merely becomes another issue in the grievance and Management must continue to process the grievance. To the extent it is not raised in the grievance procedure, it may be raised at arbitration -- but only if done so in a timely manner. The intent here is to provide the Union adequate time to deal with the issue in keeping with the mutual interest that there should be no surprises at arbitration.

Given that employees in the excepted service may now grieve adverse actions or performance-based actions, it was necessary to clarify that the "stay" provisions of Section 13.a. and b. do not apply to employees in the excepted service. Additionally, it was clarified that a grievance concerning the merit staffing of a position in the excepted service or a non-bargaining unit threshold position does not trigger the stay provision of Section 13.c. The parties also clarified that with respect to stays of merit staffing actions, if a grievance is filed after the interviewing process has begun, the interviewing process may be completed.

In keeping with the goal of streamlining the process as much as possible, the parties agreed that certain actions, which, if grieved, become subject to the stay provision, would bypass either Step 1 or both Steps 1 and 2 of the grievance procedure and go immediately to arbitration. Concerning the latter, this will depend upon whether Local 12 represented the employee during the "notice" period, in accordance with higher regulation.

With respect to the concept or definition of the term "threshold," the parties chose not to define the term in the Agreement. Instead, the parties agreed that the term would best be defined during the administration of the Agreement and any dispute could be resolved, if necessary, by resorting to the grievance procedure.

Finally, the parties agreed that they share joint responsibility for administration of this Article to ensure that it will work in a consistent fashion across Agency lines. Both parties will actively monitor the operation of the grievance procedure and work together to correct any problems that may arise so that grievances can be effectively resolved or moved expeditiously along to the next phase.