Ames Federal Employees Union

Good evening, sisters and brothers, so it’s Tuesday night in Vegas and it’s already been a whirlwind of activity. I’m not a gambler, not much of a drinker, nor into the night life (Yuri’s Night is more my taste) but I am into meeting folks and bouncing great ideas around. The Convention is a great opportunity to do some strategy and reflection on where IFPTE (and AFEU) is going.

The local paper has a nice article on the Convention and what IFPTE stands for that may interest you.

We’ll be sure to report later all we’ve learned, folks we’ve met, and ideas we’d like to move forward with. Some of these ideas will be sent out via e-mail and/or posted on the blog as well, so keep your eyes out for updates. And if you’re interested in getting involved, we’re looking for folks to take leadership on some new initiatives.

– Chris Knight, Convention Delegate for IFPTE #30

Generally in preparing a formal complaint (or discussing issues with an employee), I refer to these in order. It’s usual that the local policies stem from the NASA-wide policies which stem from regulations which stem from laws.

Union-Management Contract

Ames policies

NASA policies

Federal regulations (generally focus on the current version of Title 5)

US code (also focus on Title 5)

Step 0 - Preliminaries. Talk with the potential grievant about their issue, try to focus on what is the harm that has been caused to them and what sorts of remedies they might wish to receive. If their matter is not appropriate for a grievance, suggest which path for resolution would be better (EEO, Ombuds, etc.) If their matter is grievable, describe the grievance process in rough outline and what the grievant may expect in the process, as well as how management will likely react. If this is an issue of a performance evaluation, denial of a within-grade increase, or letter of caution, reprimand, or suspension it is sensible to request reconsideration, all of these have an option to request reconsideration. We can try to skip to step 2 below on the basis that the reconsideration process is very much like a step 1 meeting.

Step 1.0 - Initial filing. If the grievant wishes to pursue the case, send (or have the grievant send) an e-mail to HR (preferably the primary POC for the grievant’s organization, with CC to management’s labor relations officer and the chief steward). The e-mail can be very short, but it’s not a bad idea to at least state what issue you are grieving. “Dear Mr. HR Manager, Ms. Jane Doe is grieving the letter of reprimand filed on date X.”

Step 1.1 - Work with HR to schedule the meeting. It is likely to take a week or two to start scheduling the meeting, and the meeting time should be amenable to all. Often HR would rather not directly communicate with the grievant, which is fine, but which means you must act as go-between and coordination may be a challenge.

Step 1.2 - Informal meeting with the step 1 deciding official (usually the immediate supervisor). This is an opportunity to discuss the case in the background, the harm done to the employee, the suggested remedies, and to generally discuss the matter. I generally suggest that the informal meeting be just that, don’t throw specific regulation citations and piles of evidence at the branch chief. Suggest that you wish to smooth out the disagreement and that you hope that the supervisor will be reasonable.

Step 1.3 - Wait for the decision (10 days after the meeting.) Feel free to discuss and consider strategy if you believe the supervisor will deny the requested remedies, and remind the employee to be aware of their rights regarding retaliation and Weingarten. Keep track of the calendar, but be flexible in granting extensions if management needs additional time for legitimate reasons.

Step 2.0 - Write the formal complaint (15 days after the step 1 decision). Once the written decision has been received, begin formulating the formal complaint. Have the grievant focus on the background of the case, the “who/what/where/when/how” of the events that led up to (and follow) the events being grieved. Spend time researching the AFEU contract, Ames policies and regulations, NASA policies and regulations, OPM regulations, federal regulations, and laws. Work with the Chief Steward if you need to do some deep legal research into case law, although generally you don’t need to do that at the formal complaint filing. File the formal complaint in time, or ask for extensions ahead of time if you either need more time or the grievant would like to consider their actions. (Also take one last look at whether grievance is the way to go, once you file formally you’re locked out of other avenues.) Particularly focus on what was stated in the step 1 decision, and refrain from adding unrelated material or unrelated issues as you should probably file those separately (as separate grievances or other cases.)

Step 2.0.1 - File the formal complaint. By e-mail is fine,  addressing and sending it to the chief of human resources, with a courtesy CC to the LRO, the grievant, the Chief Steward.

Step 2.1 - Work with HR to schedule a meeting with the step 2 deciding official. As with step 1.1 above, it may take a couple weeks to get folks together.

Step 2.2 - Meet with the step 2 deciding official. Repeat as with Step 1.2 above, but consider your audience and the outcome of step 1.

Step 2.3 - Await the step 2 decision (10 days again.)

Step 3.0 - File an appeal. If the step 2 decision does not resolve the issue, file an appeal request, within 15 days, by sending an e-mail to the center director, CC the LRO, the head of Code H, and the chief steward. Include a copy of the step 2 decision and comment on the decision as you see fit. It’s often wise to tailor the step 3 appeal letter to your audience, and respond to the step 2 decision.

Step 3.1-3.3 (Same as Step 2.1-2.3 above.) Meet with management, often the deputy center director or directorate head.

Step 4 Consider mediation or arbitration. Mediation is free, but both parties have to come to an agreement at the end or nothing happens. I always recommend mediation unless time is of the essence, an arbitrator is likely to recommend mediating simultaneous with the arbitration. The FMCS provides mediators, and we’ve been happy with the one we’ve gotten in the past. They put each party in a separate room, run back and forth with proposals, counter proposals, and observations. The mediator also gives you another data point, providing an opinion on what your chances are with an arbitrator

Arbitration is time consuming, costly, and best handled with the help of lawyers, if you can afford it. The Union steward corps must vote to approve going to arbitration and the executive board might approve funding for the arbitration and for legal support. Arbitrators will often “split the baby”, giving some points to each side. Be forewarned that the arbitrator may split the baby in a way you don’t like, it’s usually wiser to try to mediate a settlement if at all possible.

For employees considering filing a grievance, I suggest you read the following:

If you don’t grieve, who will? Far too often I hear from employees who have obvious, long-standing difficulties with their management and they have been (and even continue to be) afraid to grieve. Worse are whole organizations with long-standing issues who are afraid to take action against their abusive manager. If you are miserable in your job because your relationship with your management is causing you stress, if you are being asked to do work far beneath your grade, if you are harassed or docked for being 10 minutes late to work, a grievance may be a way to get management off your back. If you let management get away with abusive, inappropriate, or otherwise incorrect behavior, not only are they seeing signs that their efforts to get rid of you are working but also that you are unwilling to fight back.

But…Grievances take a long time. Expect the case, if it is particularly contentious, to take six months to a year (or more!) to go through the process, to get to an arbitrator, and to get a decision. The process is free except for arbitration. Arbitrators charge lawyer rates, but the Union executive board may elect to fund the costs of arbitration depending on the likelihood of winning the case, the significance of the case, and other factors.

Grievances are about serious personal issues and have personal (and often Union) remedies. If you have been reprimanded, received a poor evaluation, been verbally abused, or otherwise harmed, a grievance may be your best plan of action. A grievance is not going to get you funding, is not going to get management to apologize (quite the contrary, see below), and is not going to get management to paint your office a nice shade of blue.

Grievances make management angry. This is not to say that you shouldn’t pursue the matter, but if you have tried being nice and haven’t gotten anywhere, grieve. Grievances take management time (time doing what a lot of managers don’t do, manage) and take what are local issues up the chain of command, a possibly embarassing situation for a first-line manager. You’re not likely to have a good relationship with your manager after a grievance (although I’d love to eat those words) but at least everyone knows where they stand. And managers cannot retaliate (an Unfair Labor Practice).

What are my options? FLRA (grievances), EEO, MSPB, which to choose? There may be multiple routes to address your concern, the Union is happy to help direct your problem to the proper route for the most expedient remedy with the agency that is most likely able to provide that remedy. Also there are informal options, the Ombuds office, “alternate dispute resolution” (although I still don’t know what that is), and you can always come to a Union meeting to raise your concerns and we can relay them and give suggestions.

Who’s my Union steward, and what do they provide? Well, you can pursue your case on your own (but you can’t take it to arbitration, the Union contract is the only avenue for arbitration). You can ask for Union representation at any point, and if you really disagree with the steward you can request another steward or cease having the Union represent you. The Union chooses your steward for you (although we’ll try to find one best suited for you and your case) and they’ll help with formalities, represent you (and the Union) at meetings, provide research, help formulate your arguments, lead the writing of the formal complaint, and otherwise help keep your case on track and moving forward. Your steward is not a lawyer but does have access to the Union’s law firm through the Chief Steward. The steward represents both your interests and those of the Union so the steward may disagree with you on some issues or give you advice that you might not agree with. The steward will generally be from another organization and will have no vested interests in your case beyond trying to make you “whole” again.

What to do? File a complaint (either with a Union rep or on your own) within 30 days of an event (ongoing issues do not have a 30-day requirement). Take notes. Keep a journal. Confirm what management tells you by writing it in an e-mail (”Just to confirm what was discussed at today’s meeting, you said…”). Understand your Weingarten rights to have a Union rep. Get your co-workers to join the grievance if this affects others.

What not to do? Never never never refuse an order by your manager (unless it violates the law.) Step away from the situation and don’t escalate, act out, or even respond beyond acknowledgement of the decision. Don’t miss out on the 30-day timeline, you don’t want to have the case thrown out on procedural issues. Don’t be afraid to file, but don’t file until you’ve tried to work it out on your own.

So a number of folks have said, “Why not provide training?” While I do plan on providing training, I thought I’d write down some fundamentals.

Do you enjoy working with people, helping them in times of need? Do you take satisfaction in righting a wrong, and working to resolve disagreements? Then stewardship is for you.

Time Commitment

How much time does it take to be a steward? Depends entirely on the case and how far the process goes. The amount of time you can provide is the amount of time it takes, we’re happy to have whatever help you’re able to provide. Step 1 is easy–file a grievance (a one-paragraph e-mail to HR stating that the Union is filing the grievance on behalf of the employee plus a brief description of the issue) then meet with the employee to discuss the details of the case and give guidance. Meet with management to present the concerns and remedies requested. Wait for a response, and start formulating what a formal complaint might look like (and do research and ask others in the steward corps if you need help.) Step 2 formal complaints, in my experience, should be limited to a brief background, the charges (what contractual language, policies, regulations, and/or laws were violated) and the requested remedies. A couple pages of text is plenty, you don’t need to present your evidence at this step (but you should give a rough time line of events and an outline of facts that feed into the charges.) Step 3 is even easier, simply state that you are appealing the step 2 decision (although it is valuable to tailor your appeal to the next level of management, appeal to their interests.) I find that for many cases it’s a couple hours for step 1, 4-6 hours for writing the formal (step 2) complaint, a couple hours for a step 3 appeal. If you are taking the case all the way to mediation or arbitration, that’s where the serious amounts of time come in. You’ll easily spend 20+ hours organizing evidence, selecting an arbitrator, presenting your case, and talking with Union lawyers. Luckily, you’ll never get to that stage on your own, the Union and the Union’s lawyers are sure to help out and/or take the case over if you are in over your head.

Prosecuting A Case

Duty to Fair Representation - the Union must represent all employees in the bargaining unit equally, whether or not they are a paying member. In fact, it’s best that you not know who is a paying member or not, and come up some standards for which cases you take (first-come-first-served is a simple one.)

Personal grievances must have personal remedies - a grievance must make the employee “whole”, or otherwise try to address the wrong by doing right by the employee, and the remedies must stem from the complaint. You can certainly ask for anything, an apology, a reassignment, a reprimand for your boss, but you’re not likely to get anything that doesn’t address your personal issue, at least not from an arbitrator.

The steward represents both the employee and the Union on the matter; there may be cases where the employee disagrees with the steward or where the employee requests remedies that are contrary to the interest of the Union, and there are likely cases where the Union is aggrieved as well as the employee. (For example, an employee who receives a poor performance rating due to improper performance planning and evaluation processing.) It may happen that you, as the steward, feel that the employee should take a settlement or drop their case.

The steward must keep close track of the time line and ensure that the steps are followed in a timely fashion; unluckily missing a deadline is going to cause significant issues if the case gets to arbitration. If you are getting close to a deadline and you don’t believe you can make it, you can ask HR for an extension (which they should grant unless they have good reason to deny an extension–and, HR may ask for extension that you should grant unless there is a significant reason for a denial.)

The formal complaint should be clear, concise, and provide a background to the case, the charges, and the remedies requested. Don’t “kitchen-sink” your complaint, you will be afforded opportunities to present evidence and dispute the facts in detail at arbitration and/or at the step 2 and step 3 meetings. But lay your case out completely and your remedies clearly. If management provides the remedies you request, your case is won (and is over, be happy! No “but we also want…”) That isn’t to mean that you must provide everything in your formal complaint, facts may arise at later steps that clarify, or change your position on the matter. An arbitrator will be reasonable in what you present in your case but you must have good reason for adding charges, remedies, or otherwise changing aspects of your complaint.
Employees should try to resolve the issue on their own first, if at all possible. When the Union gets involved in a case, HR gets involved and management is less interested in resolving the issue as they start to organize their defense. But employees MUST keep track of the time line, they have 30 days from an event to file (ongoing issues may reset that time, but as Lilly Ledbetter can attest, timely filing is critical!)

Be aware of Weingarten rights and be wary of retaliation. Further punishment, particularly when the punishment is for minor offenses or offenses that occurred before the most recent events, are signs of retaliation. The Union (or the employee) can file an Unfair Labor Practice charge against management for retaliation and the FLRA will investigate the case vigorously. Weingarten ensures that if you are being asked questions by your manager that may result in your being (further) reprimanded, you have the right to have a Union representative present. If you are in a meeting (even a hallway conversation) where you are being questioned, state that you wish to have a Union rep present (or use the magic Weingarten term). Your management should immediately cease the questioning and contact HR to arrange for a Union rep.  Note that Weingarten does state that you must answer the questions, it’s not the Fifth Amendment, but that you can have the Union representative there to guide you on how to answer and what you may expect.

The steward is not a lawyer. You are not expected to know all of the procedures of evidence, you are not expected to know all of the laws, regulations, and policies, you are allowed to make honest mistakes. You are not duty bound to represent a grievance to the end of the earth, you are entitled to your own position even if it is in conflict with the employee, but you must represent the Union and the bargaining unit’s interests (not your own, certainly!) You are at no risk of penalty for being a steward (you cannot be charged with malpractice.) But you can put the Union at risk if you grossly misrepresent an employee or totally botch their case, but that is rare. Additionally, while HR is bound by the privacy act, the steward is not bound by the privacy act, but should keep their case confidential and share information only on a need-to-know basis and only provide generalities if at all possible.

The AFEU Constitution has been updated, per a vote today of the membership. The two changes do the following:

1. Allow folks wishing to make lump-sum payments to make their first payment prorated.
2. Allow anyone who was a member of the bargaining unit to be an associate member.

The membership voted on Dec. 5 to adopt a set of revisions to the Constitution that clarified rules on elections procedures, requiring nominations and acceptance of nominations to be at one of the two membership meetings preceding an election. Also, special elections no longer allow write-in candidates, allowing for election by acclimation when a candidate for an office is running unopposed, possibly reducing the work required to run special elections.