2008 Steward's Manual - Problem Resolution
Problem Resolution
Perhaps the most important function that a Steward performs is the aiding of a member in problem resolution. Problems come in all shapes and sizes. Most stewards will only deal with the same type of problem once. Some problems can be solved almost immediately. Others may drag on through a series of legal procedures for years.
Common sense is one of the most valuable tools that a steward can use in problem solving. Listen carefully to the member. Attempt to calm down an emotionally upset member. Think about what the member says. Have you encountered this problem before? Who can help you solve it? Don't be afraid to contact your Regional Chair at this point. Above all, don't delay. Prompt resolution of a problem, where possible, will instill confidence in the member towards the Union and is one of the better recruiting tools available.
The following pages deal more specifically with different types of problems a Steward may encounter. A good, professional working relationship with the supervisor can solve most problems as they arise. Obviously, this relationship has to be a two-way street. A good Steward will often be better able to see a solution to a problem better than a supervisor can. Remember, as a Steward you are dealing with the supervisor as an equal, and can work with the supervisor to aid not only your member, but his or her employee.
Contract Enforcement
This section contains helpful hints for the Steward in handling grievances under the existing contract. It is vitally important that all time limits be strictly adhered to. This will avoid the possibility of a grievance being dismissed on timeliness, rather than the merits of the case being considered.
When an Informal Complaint Becomes a Formal Grievance
Stewards will be faced frequently with complaints from the employees they represent. Not all of these complaints will turn out to be legitimate grievances. The Stewards must investigate the facts behind what the employees tell them. A determination will have to be made at the very beginning whether there is a need to grieve a matter, and/or whether the employee's rights under the contract, or under some other provision of law or regulation were violated based upon the description of the events. If this investigation proves that the employee's complaint is justified, a legitimate grievance can be presented.
Borderline Cases
Many times the Steward will not know if the employee's complaint is a legitimate grievance or not, even after a thorough investigation. This is not the fault of either the employee involved or the Steward. Many situations arise in which many of the best Stewards will not know if a legitimate grievance exists. In these circumstances, the Union encourages the Steward to give the benefit of the doubt to the employee and process the complaint as a formal grievance.
It should be clearly understood that the role of the Steward is more in the nature of an attorney for the employees they represent, rather than acting as impartial Judges. Legitimate doubts should be resolved in favor of the employees who have the complaint, with the expectation that the case should become clearer as more information is available and each step of the grievance procedure is exhausted.
What To Do About Unjustified Complaints
There may be many times when Stewards are approached by employees who have no legitimate grounds for complaint at all. In this situation, what is the responsibility of the Stewards toward the employees they represent?
It is, of course, true that the law requires the Union to handle grievances for all members of the bargaining unit on an impartial basis. This does not mean, however, that Stewards are required by law to process all complaints, regardless of merit, through all steps of the grievance-arbitration procedure. The law allows Stewards to exercise their own good judgment as to whether a legitimate grievance exists, so long as that decision is made in good faith and without any intent to discriminate against the employee who has the problem. If the Steward feels that the employee has no justifiable grievance, he/she is under no legal requirement to process it. Likewise, the Union cannot be forced to take a case to arbitration if it believes, in good faith and without any intent to discriminate against the individual employee involved, that no legitimate case is presented.
There are many good and sufficient reasons why complaints, which have no merit, should not be filed as a formal grievance. Not the least of these reasons is that it is unwise to expend the time and energy of the Steward, and the funds of the Union, in processing cases which are unreasonable. . Furthermore, the processing of unjustified complaints may produce a counter-reaction by management. Management may well lose respect for Stewards if it believes they do not have the know-how or authority to distinguish between good and bad complaints. Management may then stiffen its resistance on legitimate grievances on the assumption that the Stewards are not well enough informed to know when they have a good case. Another consequence may be that management will try to work around Stewards in whom they have little faith because of their lack of judgment, and will try to settle directly with the involved employees.
Finally, it must not be forgotten that the other employees may lose respect for Stewards if they feel she will process any and everything brought to her as a complaint. A Steward with a long list of losses to her credit will shortly lose the confidence of the employees she represents. The faith employees have in the judgment of the Steward is an important factor in maintaining unity within the Union.
Once a Steward determines that the complaint does not have merit and should not be processed as a grievance, she must explain carefully to the employee why there is no grievance so that the complaint may be voluntarily withdrawn if possible. You may explain to the employee that, if the complaint warrants, you will try to resolve it in your next meeting with the local supervisor, even though it is not a legitimate "grievance".
This is one of the most difficult decisions that the Steward will be faced with on a day-to-day basis. If you are unsure as to the course of action to follow, it is suggested that you consult with your Regional Chair.
Investigation and Writing Grievances
Investigation
The experts agree that whether a grievance is won or lost may be determined by how carefully the Steward investigates the problem. Therefore, the Steward must be prepared, in each case presented to them, to do the following:
(1) Conduct an interview, listening carefully to the employee's statement and write down such things as dates, the facts leading to the grievance, names of witnesses, and other background information.
(2) Ask questions of the employee involved and prospective witnesses for clarification or additional information. This includes, if possible, obtaining the Supervisor's side of the story.
(3) Request access to review pertinent documents, files and other records maintained by management necessary for processing the case.
(4) Distinguish clearly between a fact and an opinion, speculation, or conjecture.
(5) Determine which facts are relevant and which are irrelevant to the grievance. Discard those which are not important or material to the allegation or they will simply confuse the matter.
Obtaining information is essential to the fulfillment of representational obligations. It enables the Union to protect the rights of members of the bargaining unit, and to police the administration of the NWSEO-NWS Agreement.
In deciding whether to pursue a grievance to arbitration , file an unfair labor practice charge, or to exercise any right of appeal, the most necessary, item is information. Without complete information it is unlikely that we will be successful in an arbitration or that we will be able to sustain our burden of proving a charge.
Attached as an appendix to the Stewards' Manual is a January 5, 1996, memorandum from the General Counsel of the Federal Labor Relations Authority concerning how unions may obtain information from their agencies necessary to process grievances. This appendix describes in detail what kind of information union representatives are entitled to obtain from an agency. It also contains sample forms to use to request information from management. A steward who needs to request information should consult this appendix carefully and utilize the forms provided.
The Written Grievance
The grievance procedure contained in the national contract provides that the complaint will be reduced to writing in Step 1. The Branch Steward will generally assist the employee in the preparation of the written grievance. The Stewards who have this responsibility will develop the experience in formulating good written grievances.
The contract requires that the First Step grievance contain the following information:
(1) The name and duty station of the grievant. (2) Must clearly state that this is a grievance. (3) A brief description of the facts surrounding the grievance including relevant dates and places and known witnesses. (4) The specific provision of this agreement (Article, Section if a contract violation is being grieved, if known). (5) Any past practice which is claimed to have been violated. (6) the specific law, rule, or regulation claimed to have been violated. (7) An explanation of how the grievant was harmed. (8) The remedy being sought. (9) The name and address of the grievant's representative, or a statement that the employee is representing himself/herself. (10) All grievances must be signed and dated.
Most of the requirements above are procedural with the exception of 3 through 8. Of those, 7 and 8 are the most important ones to keep in mind. There will be times when there may be a perceived violation of a past practice, the contract, law, rule, or regulation, but no grievant was harmed or there is no remedy to make the grievant whole. If there is no remedy or harmful act, then there is no grievance.
Helpful Suggestions in Writing Grievances
(1) Writing is only talking on paper. Say it first, and then put it down in writing.
(2) Write the grievance as concisely and simply as possible. It is crucial to get all the facts and the requested remedy into the grievance, without including too may details or extraneous matters of which management may take advantage to confuse the issue or to sidetrack the matter.
(3) Write legibly, preferably use a wordprocessor, if available. Insure that all copies are equally legible for future reference.
(4) Keep a written record of important details which you any not want to include in the written grievance but may wish to rely upon in arguing the case. These important and additional details should be acquired and put down as soon as possible because of the short memory of most of us, especially when they are directly involved in a problem.
(5) Make copies of the grievance and distribute them to the necessary parties. Include the necessary management person under the respective steps of the grievance procedure, the employee involved, the Regional Chairperson, and an additional file copy. In this connection, it is important to point out that Stewards should begin immediately to develop their own grievance files. This is important not only for the purposes of ready references, but also because it helps the Stewards recall past grievances, and their disposition, and serves as a useful starting point for negotiations on the next Agreement to correct any areas where grievances have been lost.
(6) Quite often, the Branch Steward will construct the written grievance too narrowly when it comes to the alleged violations of law, rule or regulation. It is generally considered advisable to resolve all questions of doubt as to whether a violation occurred in favor of including possible violations. It is difficult at the later stages of the grievance procedure to expand on the alleged violation and, therefore, you should try to screen the contract carefully and include from the beginning all past practices, regulations, etc. that may have a bearing on the grievance. If at a later time, as facts become more fully developed, certain past practices initially alleged to have been violated cannot be proved, it is easier to withdraw that portion of the charge than it is to add to the charge. Note further, that the contract makes it clear that no new issues may be raised after Step 1 of the grievance procedure, so therefore, it is important to include all possible basis for the grievance in Step 1.
(7) It is very important at any stage of the grievance process that any questions in the Steward's mind be addressed as soon as possible by contacting the Regional Chair. These individuals will generally have more experience in processing grievances and can be of tremendous help. With an extensive background in meteorology, electronics, etc., the Steward is not also expected to be a lawyer. Remember, a smart steward asks questions.
Dealing with the Aggrieved Employee
The Steward and the Aggrieved Employee Acting Together
The Union endorses the usual and common practice that the involved employee and the Steward should process the grievance together. The experts suggest that there are several good reasons for doing it this way at the initial stages of the grievance. First of all, the Stewards are the Union's representatives and are best qualified to present the case to the supervisor. With the aggrieved employee present when the grievance is presented, the employee then knows exactly what happened and can't argue later that he was sold down the river. Moreover, operating together, the Steward and the aggrieved employee can back each other up and also provide an additional witness for the Union, that may come in handy in a later step if there is a dispute as to what transpired during one of the previous steps. Also, this joint approach proves to management that the Stewards have the support and confidence of the employees they represent. It could happen that if the aggrieved employee acts alone because he may not have special training in processing grievances, he may be out-talked by the immediate supervisor, simply because he was unfamiliar with his rights, or did not understand the agreement, or was frightened into dropping the case by hints of coercion or outright threats.
Joint handling of the grievance does present one special problem which must be carefully approached. On occasion the Steward and the aggrieved employee find themselves in disagreement on the case or realize that they have differing views on how the problem should be presented. If and when this happens, the one thing to avoid is a dispute between the Steward and the employee in the presence of management. It is perfectly acceptable practice to recess the discussion for a brief period of time in order to try to work out the differences. Unity in the presence of management is the best way to win a grievance.
The Aggrieved Employee Who Wants To Back Down
It may happen that Stewards will be faced with a situation of an employee who has a legitimate grievance but who refuses to file a complaint or seeks to withdraw the grievance after it has been filed. There are many reasons why employees may want to do this, and the main one may well be fear that he will be penalized later by management for complaining or filing the grievance. Stewards should make every possible attempt to persuade the aggrieved employee to participate and support the grievance to its ultimate conclusion. Remember, it is a violation of the law for management to discriminate against an employee who utilizes the grievance procedure. This should be helpful in persuading the aggrieved employee to stay with it.
An employee fulfills a responsibility to herself and to the Union by standing on her own two feet and fighting for what is justly due. Moreover, management may assume that a Steward acting alone does not have the support and the respect of the employees she represents. Management will be tougher to deal with if this is the case.
Processing Grievances of Non-Members
The law requires the Union, which has exclusive representation rights in the bargaining unit, to handle grievances of members and non-members alike, without discrimination between the two. Therefore, all legitimate grievances from bargaining unit members, regardless of their membership in the Union should be processed.
This is not simply a matter of what the law requires. It is also a matter of self-preservation for the Union that all grievances which are legitimate be pushed hard. An uncontested violation of the Agreement involving a non-member may be used against an NWSEO member in the future. Moreover, successful prosecution of a non-member's grievance can be a useful recruiting tactic. Successful prosecution of a grievance goes a long way toward demonstrating to the non-members what the Organization can do for them.
Other Actions for Non-members
On September 2, 1986, the United States Court of Appeals ruled that federal sector unions have no obligation to represent non-members outside of the grievance and arbitration procedure. (i.e., MSPB or EEO). This reverses a long-standing policy of the FLRA which obligated federal sector unions to represent all employees on all matters.
A more recent court decision has held that unions are not required to represent non-members at the stage when discipline is first proposed - that is, in preparing a written or oral response to a proposed suspension or removal. However, once the decision is made to impose discipline, the union is required to assist and represent non-members who ask our assistance in filing a grievance provided the grievance has merit and the discipline or penalty was unjust.
NWSEO has adopted a policy, that states that it will not represent non-members in any matter other than the required grievance and arbitration procedure. NWSEO feels that this policy is very fair to the member, who after all, supports the Union. Stewards should not fail to impress this very important point upon non-members.
Dealing with the Supervisor and Management
The Relationship Between the Steward and Supervisors
Step 1 of the grievance procedure should be the starting point for settlement of the dispute with the supervisor. The Union encourages support for the policy that every effort should be made to resolve the dispute as close to its source as possible. Mutually agreeable resolution of disputes, arrived at by both parties amicably, is much easier for both sides to live with than one imposed from above or ordered by an arbitrator. Furthermore, as each succeeding step of the grievance procedure is invoked, the position of the parties may become more hardened, making it more difficult to settle because of a matter of pride or prestige. It is not uncommon for higher level supervisory personnel to back up their subordinates even though they may disagree with the decision reached below. Therefore, resolving grievances at Step 1 is an important job for Stewards.
In establishing a relationship with the supervisors, Stewards should adopt a policy of hearing their side of the story after getting the complaint from the aggrieved employee. It is an old saying, but nevertheless true, that there are two sides to every case. Stewards can better evaluate the complaint only after hearing both sides, and this means giving the supervisor a chance to explain also.
The national contract contains detailed time limitations in which management must act under each step of the grievance procedure. These provisions will go a long way toward eliminating the stall as an old management tactic to frustrate grievance handling.
However, circumstances may arise in which management requests the Stewards for a waiver of time limitations in the various steps. The national contract provides for the automatic granting of a seven day extension of time limits that is requested by either party and documented in writing. Subsequent extensions of time shall be only by mutual consent and documented in writing. Legitimate and good faith requests for additional extensions of time should be granted, as a matter of good labor-management relations, with the expectation that a reciprocal favor will be forthcoming the next time. If, however, the Stewards have reason to believe that the request is not made in good faith, and that it is a stalling tactic, Stewards should not hesitate to reject the request and insist that the time limitations set out in the contract be adhered to strictly.
Remember, the national contract provides that failure by management to render a decision by the particular deadline shall advance the grievance to the next step. Hence, management has nothing to gain by stalling if the Stewards police an agreement effectively.
It is required that all agreements to waive time parameters be reduced to writing. This is to avoid arguments which can be raised at a later stage.
Sample Letter for Extending Time Limits on a Grievance
John Doe Official-in-Charge WSO Anywhere
Dear John:
I hereby request (or grant) an extension of 7 days for the processing of Jane Smith's scheduling grievance. This extension will cause the submission (or decision) at Step 1 of the grievance procedure to be due on (date).
Sincerely, Joe Union, Steward NWSEO Branch 9-1
Cutting Deals and Horse Trading
In everyday dealings it is common to hear the expression "let's cut a deal," or "let's split the difference," or "let's make a trade." Such expressions easily find their way into labor-management dealings. It is very tempting when management proposes to split on grievances, with management taking one end and the Union taking another. However, once again it is important to recall the legal obligation which required that Stewards and the Union treat each employee fairly and equally when legitimate grievances are posed. Each case must be treated for what it is and on its own merits.
On the other hand, Stewards must develop experience in negotiating settlement of grievances. It may very well be that on occasion Stewards will be able to settle an important grievance in favor of the Union in return for relinquishment of the Union's position in another weaker case which stood little chance of success anyway. This practice is not to be discouraged; rather, it is encouraged, so long as it is done in good faith and the final decision of the Stewards is based upon the merits of each case. This will require a close assessment of the strengths and weaknesses of each case and their relative merits. It will also require putting yourself in management's shoes and attempting to assess the case from management's side of the table. This is one of the surest and best ways of figuring out how cases may be disposed of to the mutual satisfaction of all concerned.
Settlement Tactics
In dealing with people with personal complaints or problems, there are many tactical ways of working things out advantageously. These tactics should be kept in mind in processing grievances on behalf of the employees.
One of the quickest ways to lose a case is to permit management to sucker a Steward into losing her temper. Once management has identified an individual as an easy mark because she does not "keep her cool," that Steward will have an increasingly difficult time doing her job. Such Stewards quickly lose the respect of both management and the employees she represents, and she will no longer be an effective force in the Union. Clear thinking, and not hot words, is to be kept uppermost in the Steward's mind in dealing with management and supervisors.
A common fallacy in handling complaints is the belief that it is possible to talk your way out of everything. This misconception applies to both the aggrieved employee and the Stewards. In processing grievances, the experts say that it is much better to do the listening rather than the talking. It is more important and better strategy to say too little rather than too much. A famous American essayist and novelist once said, "There is only one rule for being a good talker: Learn to listen." A good Steward will be in a better position to combat management's case by carefully listening to it.
Furthermore, it is not uncommon for the supervisor to let something slip out, which may be very useful as a damaging admission later on. To know when to stop talking is an important attribute for a good Steward.
If management concedes on a grievance, Stewards should end the meeting, and not lord it over the individual supervisor involved. If, on the other hand, management sticks to its position, the Stewards should be content when they have fully explained the Union's position on the grievance. Rehashing the facts, repetitious statements, and going over the subject matter again and again will only impress the supervisor with the Steward's inexperience. This is counterproductive.
It is considered good operating practice at the end of any meeting where grievance settlements were discussed to immediately make notes for your file.
Failure to Reach Agreement
Many cases will not be settled at Step 1 because the parties are unable to reach agreement. In this event, the Steward should advise the supervisor that the grievance will be appealed to the next step of the grievance procedure. This is not to be used to intimidate the supervisor and should be expressed as a simple statement of fact.
Stewards should avoid making any promises to the aggrieved employee guaranteeing him a successful settlement of his complaint at any stage of the grievance procedure. Air tight cases are sometimes destroyed upon further investigation. Confidence in the Stewards will be lessened if the aggrieved employee has been told that he has a sure winner and a win does not develop.
Stewards must make sure the time periods in which to appeal are adhered to strictly. Failure to present the grievance to the next step of the grievance procedure within the prescribed time limits shall be considered, under the contract provisions, as a waiver of the grievance and a forfeiture of the case.
Relationship between Contract Grievance Procedure and Agency Appeal Procedure
Agency Appeal Procedure
Agreements are designed to provide for a unitary system of grievance handling and the grievance procedure should be used in all cases for all types of disputes, with two minor exceptions.
Statutory Appeals Procedure's. There are some instances where the aggrieved employee may have to make a choice of which procedure to use, the grievance procedure or an existing statutory appeals procedure. The Federal Service Labor-Management Relations Statute provides in Section 10, (3)(c), "Options between statutory appeal procedures or negotiated grievance procedures: (1) An aggrieved employee has an option, in appealing discrimination matters under 5 U.S.C. 2302 (race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation), to use either the agency's EEO complaint process or the negotiated grievance procedure (where the negotiated grievance procedure covers such matters), but not both. Selection of the negotiated grievance procedure, however, in no way prejudices an employee's right to request the Merit Systems Protection Board or the Equal Employment Opportunity Commission, as appropriate, to review a final decision. (2) Employees have an option, in appealing matters covered under 5 U.S.C. 7512 (removals, suspensions for more than 30 days, reductions in grade, reductions in pay grade or loss of 3 percent of the employee's basic pay, and furlough for 30 days or less) of using the statutory appeals procedure under 5 U.S.C. 7701 (appeal to the MSPB) or the negotiated grievance procedure, if such matters have been negotiated into coverage under the grievance procedure, but not both. (3) An employee will have exercised his/her options to raise a matter under an applicable appeal procedure, or under the negotiated grievance procedure, at such time as the employee timely files a notice of appeal with the EEOC, file or formal discrimination complaint with NOAA Office of Civil Rights, or otherwise initiates an action under the applicable appeal procedure or timely files a grievance in writing in accordance with the provisions of the parties' negotiated grievance procedure, whichever occurs first.
It is important to consult with NWSEO's General Counsel's office, through the Regional Chairs before making a decision to file a discrimination complaint as a grievance or through the administration process.
Arbitration
If at the completion of all the steps under the negotiated grievance procedure the grievant is unsatisfied with management's response, the Steward should immediately notify the Regional Chair. Under the terms of the national contract, the National President has 21 days from the date of receipt of the final decision under the grievance process to make a determination as to whether or not to proceed to arbitration. This decision will be made in concert with the Regional Chair, so it is very important that the Chair have a copy of all materials relating to the grievance.
Arbitration is a process whereby an independent individual with at least a minimal background in federal labor law will make an adjudication based on oral and written presentation of the parties involved. The arbitrator is chosen by the parties from a list supplied by the Federal Mediation and Conciliation Service. The actual presentation of the arbitration case will be handled by NWSEO's General Counsel.
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