Welcome to San Antonio

1. Welcome to San Antonio

2. LMR BRIEFING San Antonio, Texas September 16, 2003

3. It can be used as a delicate instrument to correct very specific problems… or - it can be a little less delicate tool used to pound a point home or just to get their attention . A Grievance is just a tool.

4. What did they do? - and - What do you want?

5. What did they do? Commonly known as theDescription of Grievance

6. A grievance is generally defined as any dispute between labor and management in an area over which management exercises some responsibility.

7. What is a Grievance - Contract • ARTICLE 9 - GRIEVANCE PROCEDURE • Section 1. A grievance shall be defined as any complaint: • by any employee concerning any matter relating to the employment of the employee; • by the Union concerning any matter relating to the employment of any unit employee; or • by a union employee or either Party concerning any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment as provided in the Civil Service Reform Act of 1978 or this Agreement.

8. Is it a grievance? • Not all complaints are legitimate grievances. Someone must check the facts to see whether they are accurate. • It is important that the union representative have the ability to distinguish between a complaint and a bonafide grievance. • The first action that should be taken is to determine if the complaint is a grievance or not. To do this…

9. Check the following points: • Is there a violation of the contract? • Is there a violation of a law? • Does it involve an area for which management can be held responsible? • Is there a violation of agency regulations? • Is there a violation of a past practice? • Has an employee been treated unfairly?

10. Investigating a Grievance Whether a grievance is won or lost is often determined by how carefully the problem is investigated and how the supporting evidence is determined and gathered. Therefore, the union representative must be prepared to do the following:

11. Investigating a Grievance 1. Conduct an interview, listening carefully to the employee’s statement and writing down such things as dates, the facts leading to the grievance, names of witnesses, etc. 2. Ask questions for additional information. 3. Examine records which are relevant to the case. 4. Distinguish between a fact and an opinion. 5. Determine which facts are relevant. 6. Write the grievance utilizing the relevant facts.

12. WritingtheGrievance

13. Who? Traditionally the Five W’s are used to teach the writing of grievances - including the: When? What? Where? Why? But not today – we’re going to simplify it.

14. Don’t say too much.

15. Do not put the whole description of the event in the body of the grievance. (No novels) An argument that is sometime raised, but which is rarely successful, is that the grievance, as written, lacked sufficient clarity or specificity to inform the responding party of the nature of the complaint. Generally it is found that the language of the grievance need only place the employer on notice of the subject of the dispute. As a general guideline, if you can’t fit the body of the grievance in the space provided on an FAA Grievance form you have probably written too much.

16. State Just the Facts • Leave out accusations that you cannot prove. • Leave out opinions and innuendo. Leave out • Leave out personal attacks. • Leave out acronyms. • Leave out names to the extent possible.Grieve the “AGENCY”, not the person. As you review the grievance ask yourself if you can prove each point or assertion that you made in the grievance.

17. For Example: Description of Grievance: This grievance is being filed in accordance with Article 9, Section 11, Step 1 of the NATCA/FAA Agreement. On March 21, 2002, the Agency entered into a settlement agreement with the Union concerning Grievance Number (NC) ASW-01-122-ABC-03 in which the Union alleged gross negligence on the part of the Agency for exposing employees to hazardous drinking water. The agreement stipulated “The Agency will restore sick leave back to August 08, 2001 by any employee working at the new facility provided such sick leave was required by conditions covered by ingesting hazardous drinking water from the facility”. Each pay period since May 2002, up to and including Pay Period 08 ending April 05, 2003, the Agency has failed to meet it’s obligation to restore sick leave to affected bargaining unit members. As a result the Agency is in material breach of the settlement agreement signed on March 21, 2002.

18. Try not to use language in the body of the grievance that narrows the scope of the grievance. If you must cite a contract article or regulation in the body, preface the cite with a phrase such as “at a minimum” or “including but not limited to”.

19. For Example: “By bypassing Mr. Jones on the overtime list the Agency violated, at a minimum, Article 38 and local directives.” - OR - As a result of the Agency’s unilateral decision to implement new procedures without notice to and bargaining with the Union, the Agency violated the Union’s rights, including but not limited to, Article 7 of the CBA and 5 U.S.C. Chapter 71.

20. Sending Them to the Dictionary Sometimes its fun to send them to the dictionary so they can figure out what you are saying. Example: “eschew obfuscation” Basically translates as: “to avoid making things difficult to understand”

21. In Summary • Don’t say too much. • Be sure that any statements made in the body of the grievance are factual. • Do not narrow the scope of the grievance by putting too much information on the table. • Basically, it comes down to providing the agency enough information to determine the nature of the grievance and saving the detailed argument for the oral presentation.

22. What do you want? Corrective Action Desired or Remedy

23. Top Ten Top Ten Remedies not to request in a grievance: • Fire my manager. • Fire my supervisor. • One Millllllion Dollars. * • Paid move to the facility of my choice. • Paint my house.

24. Top Ten Top Ten Remedies not to request in a grievance: • A ride on the space shuttle. • Have the supervisor executed. • An 8 1/2 X 11apology suitable for framing. • 16 credit hours for everyone in the FAA. • Wash my car.

25. The Remedy The remedy is just as important as the description of the grievance. The grievant/ union representative should be sure to request everything he/she believes will be needed to satisfy the offense committed by the agency. It is extremely important that this be done, since sometimes an arbitrator will base an award on the original request.

26. The Remedy Question: Should a “make whole” remedy be requested on every grievance? No. A “make whole“ remedy should be used when the grievant has suffered some loss that resulted in the withdrawal or reduction of all or part of the grievant’s pay, allowances, or differentials.The make whole remedy does not apply to every grievance.

27. The Remedy Some remedies are obvious and easy. Status quo – make whole – ride on the shuttle, etc. Some remedies are not so easy. You must give careful consideration as to what remedy will satisfy the grievance. Sometimes you can’t think of anything to satisfy the grievance. In this case carefully examine the grievance and get creative.

28. Arbitrators’ Power Arbitrators are considered to have inherent power to devise an appropriate remedy; however, external law is superior to labor agreements in the federal sector and remedies are unenforceable if they conflict with law or government wide regulations in effect when the contract was executed. The FLRA will modify or overturn such awards if a remedy infringes on management rights, violates the Back Pay Act, is inconsistent with the FPM, or is incompatible with law or government wide regulation.

29. The Back Pay Act In the resolution of grievances, parties frequently request the arbitrator to consider and grant a financial remedy to make the grievant “whole.” The most significant and most requested remedy is back pay. When an arbitrator awards back pay in federal sector arbitration cases, the award must conform to the requirements of the Back Pay Act so that award can survive an appeal to the Federal Labor Relations Authority (“FLRA”). The intent of the Act is to make the grievant whole – nothing less, but also nothing more.

30. Arbitrator’s Findings An arbitrator is authorized to award back pay only when he/she makes three determinations. The arbitrator must find that: • An agency personnel action, with respect to the grievant, was unjustified or unwarranted; • Such unjustified or unwarranted personnel action resulted in the withdrawal or reduction of all or part of the grievant’s pay, allowances, or differentials; and • But for such action, the grievant otherwise would not have suffered such withdrawal or reduction in pay, allowances, or differentials.

31. “Unjustified or Unwarranted” An unjustified or unwarranted agency action is defined as a violation of applicable law, rule, regulation or collective bargaining agreement. The personnel action may include an act of commission or an act of omission, i.e., failure to take an action or confer a benefit by the agency. “Personnel action” is defined in the Back Pay Act and 5 C.F.R. §550.8036 .

32. The “But For” Clause. The most significant requirement is the “but for” finding, i.e., but for the agency’s unjustified or unwarranted personnel action, the employee would not have suffered a loss of pay, allowances, or differentials. The arbitrator need not use magic words, such as “but for”, however, he/she is required to articulate a causal link between the agency’s actions and the loss of pay justifying a back pay award. The evidence must support the arbitrator’s findings.

33. Punitive Damages Ain’t gonna happen! There is prohibition by law from paying punitive damages. While you can request this type of damages in a grievance and you may be able to get something in a settlement with the agency; this compensation cannot be awarded by an arbitrator.

34. Question: A FACREP files a grievance for the agency changing working conditions without notice and negotiations. The FACREP requests that each bargaining unit member be granted 8 credit hours. Are the bargaining unit members entitled to this type of remedy? No.

35. Question: An employee files a grievance on the agency for over two hours on position. The grievant requests two hours comp time as compensation for the incident. Is the grievant entitled to the compensation? No.

36. Question: The employee wants to turn in leave. The agency arbitrarily assigned a shift other than the shift he would have worked if leave had not been scheduled. Because of other commitments he could not work that shift, so he was forced to go ahead and take the leave. The grievant requested 8 hours of restored annual leave as compensation. Is the grievant entitled to this compensation? Yes.

37. Question: The grievant files a grievance for the agency failing to pay a “missed meal” break. The grievant requests two credit hours as compensation. Is the grievant entitled to this compensation? No.

38. EVIDENCE Prove It!

39. “If you can’t prove it – it didn’t happen.” Grievances are generally won or lost at the facility level. If the FACREP has properly gathered the evidence, researched and prepared the case there is a much better chance of prevailing at the local, regional or national level.

40. In investigating and presenting grievances, it should be clearly understood by all concerned that in disciplinary actions and grievances, the issues and facts are clearest at the initial step of the action.

41. The Human Factor The hidden factor in grievance actions (and particularly in disciplinary actions) above Step 2 is the human factor. Representatives at levels above Step 2 are not familiar with the supervisors or the employees, so consequently they are forced to present the case based only on hard, cold facts submitted to them by the representatives at Steps 1 & 2.

42. The Human Factor By the time your grievance or disciplinary action reaches the arbitration state, it has become far removed from the level where the problem occurred. For this reason, an arbitrator will often turn to the issues, facts, and requested remedies that were presented at Step 1 of the procedures to make a decision.

43. The Standards of Proof. The standards of proof describe what level of proof is needed in different types of cases. The higher level of proof that you can obtain when preparing your grievance increases your chances of prevailing in your case. The standards of proof in ascending order of difficulty are:

44. The Standards of Proof. Scintilla of Evidence This is the smallest amount, minute, a trace or shred of evidence. This is not a true standard of persuasion, but legal opinions may address the amount of the evidence in support of a contention. This is the lowest standard and has little relevance in labor arbitration.

45. The Standards of Proof. Prima Facie This literally means “at first sight”; on the face of it. It has come to mean something that is presumed to be true unless affirmatively disproved by other evidence to the contrary. A prima facie case means that the party has produced sufficient evidence to prevail and support a finding in its favor. The other party will be required to introduce rebuttal evidence in order to overcome the prima facie evidence presented.

46. The Standards of Proof. Substantial Evidence That degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as adequate to support a conclusion that the matter asserted is true, even though other reasonable persons might disagree. It is often cited as the standard of review by a judicial body of an administrative agency’s or law judge’s determination. A reviewing body cannot overturn a good faith decision if based on “substantial evidence” even if it would have reached a different conclusion.

47. The Standards of Proof. Preponderance of the Evidence That degree of relevant evidence which a reason-able mind, considering the record as a whole, might accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true. The evidence when examined by a reasonable, impartial person would on the whole show that the fact or interpretation is more probable than not. It is a balancing test, with each party introducing as much evidence as possible into the record.

48. The Standards of Proof. Clear and Convincing Evidence The standard requires a greater level than a mere preponderance, but less than proof beyond a reasonable doubt, which is required in criminal proceedings. This level of evidence is often used by arbitrator, especially when reviewing discipline for serious misconduct. The proof must result in firm belief or conviction. The trier of fact must be convinced.

49. The Standards of Proof. Proof Beyond a Reasonable Doubt The highest standard or degree of evidence required. It is the standard applicable in all criminal prosecutions. It is considered as proof where there is no doubt remaining. A high measure of certainty exists. Reasonable doubt is such doubt that a reasonably prudent person would hesitate in acting.

50. The Standards of Proof. In both arbitration and ADR, the burden of proof is that the charging party will need to prove the case, is by a “preponderance of the evidence”. In order to prevail in arbitration or ADR we must have the evidence to surpass the 50% + 1 hurdle. We need evidence for each part of our argument.