Grievance Presentation in Public Sector Labor Organizations
Grievance Presentation by federal and state level unions rely on negotiated grievance procedures primarily for contract enforcement. Union negotiated grievances are often an issue, especially at the local level. The (typically) first objective of agency LMR/ELR representatives and consultants to senior level executives, upon receiving a grievance is to accurately identify the actual claim. It is remarkable the number of grievances submitted that technically amount to gibberish and fail to state a claim.
In one case we recently reviewed, three senior LMR consultants reviewed a twelve page grievance submitted by a union. Despite their two MBA’s, a JD, and a combined thirty-two years of experience, they could not determine what the union was claiming or the requested remedy. In another grievance, a union representative simply copied and pasted nearly the entire table of contents of the Master Agreement under alleged violations with no further information. These encounters are not infrequent.
In grievance presentation, we regularly encounter union representatives who pride themselves on submitting a twelve page grievance that failed to even state a claim or remedy, never mind actually prove the claim. Here is another secret I will let you in on. Senior Supervisory ELR Specialists typically instruct LMR/ELR Representatives that every piece of correspondence they write should not be written for the other party, but instead for a judge. Every correspondence between a seasoned ELR shop and the union or employee tells the judge the story.
The Basics
In situations described above or similar, your grievance will have no chance of prevailing. The agency is not required to speculate as to your intent as a union representative. The agency is only required to respond to what is written in the grievance and what remedy is asked for in the grievance. Therefore, it is critical union representatives write with laser like precision. Agency representatives do not care if you win or lose your grievance. Their job is to evaluate the grievance from a technical and legal perspective and advise deciding officials. If they determine the union’s claim is in fact true and constitutes a violation of the Master Agreement (or violation of a law, rule, or regulation), they advise management to resolve the dispute and grant appropriate remedies to the extent permitted by law.
In some cases, they will actually compel management to do so. If they cannot decipher the grievance presentation (what you are claiming), they advise management to reject the grievance on that basis (you failed to present a claim). And, do not think you will clarify at a grievance meeting. You are simply not allowed to change your grievance between the written submission and the grievance meeting. Instead, you would need to re-file the grievance (depending on contract provisions). The grievance meetings are for you to provide additional supporting information to your claim. If you never had a claim to begin with, or you stated the wrong claim, you are technically out of luck.
Inside Pointers for Grievance Writing
- Present a well formatted document. Making the reader search for information in a poorly formatted document just stacks the odds against you. Remember, the goal is to persuade first 1) the ELR agency representative and then 2) the deciding official. If you manage to persuade the agency representative, typically the deciding official follows.
- Write concisely. Words have meanings and meanings have specific words attached. Typically, the more exact your writing, the less words are required. ELR agency representatives appreciate proper word usage. There are many instances in which we find union grievances using words that are not only incorrect, but even completely wrong. A good agency representative will never speculate as to what you are trying to say.
- Write with clarity about the alleged violation. Be very clear as to what you believe the allegation is. For example, cite the law, rule, regulation, or contract provision. If you are alleging a violation of “any matter related to the employment of the employee” (see, 5 USC 710(a)(9)(B), be sure to be descriptive.
- Be very specific about how the alleged violation occurred. We suggest using the charge/specification model often associated with adverse actions and MSPB. As related to the document format, we even recommend a bulleted approach in presenting them in the document.
And More
- Attach supporting evidence. Though not stipulated in many Master Agreements, we believe a best practice approach is to always include supporting evidence, if any. This might include a written statement from the employee or a witness, time and attendance reports, photographs, etc.. Your goal is not to go to hearing. Your goal is to obtain your remedy and resolve the issue. To do this, it is best to be as persuasive as possible upfront. Whatever you do, don’t copy and paste the entire Master Agreement into the grievance (it happens). No one is impressed and in fact, you will be laughed at for a very long time.
- Request a specific remedy that is authorized. We have seen grievances that included no remedy and we have seen grievances requesting $100,000. Both are a joke. We have also seen broad and ambiguous requested remedies such as “make employee whole” (no further info provided) or “return dignity and respect to employee.” The agency must be able to tangibly grant the requested remedy and such granting must be authorized by law, rule, or regulation. So, think carefully and be specific. Also, provide the basis. For example, how do you “make the employee whole?” Explain to the agency what is required to achieve this remedy. Did the employee lose any pay he was otherwise entitled to? Remember, if the employee was not otherwise entitled to the pay, the Agency cannot grant the remedy. You would have been better off going the EEO route in that case.
Remember, the objective is to obtain resolution to the grievance in the most expeditious and effective manner as quickly as possible. You cannot achieve this by keeping the agency guessing. Persuasively and intelligently present your grievance and you may be surprised at the results.
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