What to Do When You've Been Wronged at EPA

Image courtesy  Joint Industry Board .

Image courtesy Joint Industry Board.

The agency and its employees, through its unions, agreed on procedures to challenge actions that we don't think are fair, appropriate, or accurate. We call that process a "grievance," and it's detailed in the Collective Bargaining Agreement (CBA), Article 34.

EPA guarantees that a grievance filed by an employee "does not affect the employee's standing with the Agency." Employees are assured by EPA that they will be free from "restraint, interference, coercion, discrimination, intimidation or reprisal" for filing a grievance or participating in the grievance process. See CBA, Article 3, Section 3.

Prior to filing a grievance, we typically try to reach out to your manager to discuss the matter, with your permission, of course. We find that we can sometimes resolve the issue informally prior to resorting to the formal grievance process.  But where our informal contact bears no fruit, where you're uncomfortable with us reaching out informally to your manager, or where it is strategically disadvantageous to do so, we then move to a formal grievance.

The grievance process is established to resolve issues at the lowest level possible. To accomplish this, the agency and NTEU agreed on a three-step process. The theory is that you file the grievance at "Step 1" with your supervisor so that you can work out a mutually agreeable solution to the matter you're complaining about, and only move to Steps 2 and 3 if Step 1 doesn't resolve the issue. What we've found, however, is that Step 1 is largely a sham and a waste of time, but one we still need to go through on the way to later steps of the process, which are more likely to result in a solution.

Frequently in a Step 1 grievance, the first-line supervisor works with the Labor and Employee Relations staff (the people who represent management) to justify the decision that was already made, not to resolve the grievance in a mutually-acceptable manner that works for both the employee and the manager. That is Chapter 280's goal: to craft solutions that work for both our members and the managers, whenever possible.

Because of the problems we have at Step 1, you're nearly always going to proceed to Steps 2 and 3 of the process. Step 2 is with the "next level supervisor" over the supervisor who heard Step 1. See CBA, Article 34, Section 8. Step 3 is with the next level supervisor over Step 2. We frequently find that the next-level Step 2 or Step 3 supervisors meet with the Step 1 supervisor and agree on a common justification of the bad actions of the Step 1 supervisor.  We then receive a similar reason for denial at each step of the process. Managers stick together, even when they're wrong.

The Step 2 and Step 3 supervisors are supposed to take a fresh look with fresh eyes at the situation and bring independent judgment. Unfortunately most of them do not take this responsibility seriously and instead see the Step 2 and Step 3 process as another opportunity to validate and justify the actions of the Step 1 supervisor, no matter how problematic they are.

Nonetheless, we do resolve disagreements through the grievance process, and it's valuable to file the grievance to ensure your rights are protected. But if the grievance doesn't give you what you want, there are other options detailed below.

If we don't get satisfactory resolution of your grievance during the Step 1 - 3 process, we then can take the grievance to arbitration. Issues are arbitrated, or decided, in front of a neutral arbitrator from a panel of arbitrators jointly approved by the union and EPA. Arbitrators are like judges who hear the information presented by both you and the manager and then make a decision. The process is, however, much less formal than a judge and court. Nonetheless, it gives us an independent decision from someone not controlled by management.

Many of you have asked how the union uses your dues. Arbitration is one of the ways. Arbitration costs money and that cost is jointly split between the union and agency. See CBA, Article 35, Section 3.

Time Limits
Grievances must be filed within 30 calendar days "of the notice of the matter, incident or issue out of which the grievance arose[,]" or where there was no formal notice, 30 calendar days after you "should have been aware of the matter, incident or issue." See CBA, Article 34, Section 8. 

Once we file your grievance, management has 15 calendar days to schedule a face-to-face meeting with you, if you request one, or 15 calendar days to decide the issue when you do not request a face-to-face meeting.  After your face-to-face meeting, management has another 15 calendar days to send you a written decision. If management fails to meet the time frames specified and are not granted a delay by the union, then we can proceed to Step 2 at any time after passage of the 15-day decision deadline.  Steps 2 and 3 have similar time limits to Step 1.

If the matter is not settled by the three steps of the grievance process, the union has 30 calendar days after management issues its Step-3 decision to file a demand to arbitrate the issue, unless an extension is granted by management or the parties agree to engage in alternative dispute resolution (see below for more on Alternative Dispute Resolution (ADR)). Once arbitration is requested, it takes roughly six months to receive an arbitration decision.

Mediation (ADR)
One other option is to engage in mediation, a process of talking through the issues with a neutral third party in an attempt to find a mutually-agreeable solution. This mediation can be informal through the agency's Workplace Solutions office, or can be formal under the CBA (note that the CBA also utilizes the Workplace Solutions office to find a contractor for our headquarters employees). CBA Article 34, Section 10, specifies that at any time in the grievance process either party may request ADR, and if "by mutual agreement" it is desired, the mediation process specified in Section 10 is followed.

Correct Person for Filing the Grievance
As mentioned, above, the grievance is normally filed with your immediate supervisor. But what if your supervisor has no authority over the issue? In that case the CBA directs us to send the grievance "to the management official at the level having the necessary authority" over the matter. See CBA, Article 34, Section 8, Step 1, paragraph A.

For example, the CBA specifies that only a deputy assistant administrator has authority to approve fulltime telework, so we believe that a fulltime telework denial must be heard by the deputy assistant administrator because only s/he has "the necessary authority" to approve the fulltime telework, irrespective of what supervisor along the way may have refused to forward the request up the supervisory chain. See Article 54, Section 9(A)(5).

Frequently management disagrees with us and tries to keep the grievance at the lowest management level they can. They bend over backwards to keep senior EPA management from knowing about grievances that are ongoing on various matters. It's as if they do not want someone to independently assess the wisdom of their actions, which hopefully senior leadership would do.

Choosing Between Actions
You have options other than the grievance process to address issues as well. Options include the EPA Order 4711 process (Procedure for Addressing Allegations of Workplace Harassment), challenging "prohibited personnel practices" before the Office of Special Counsel or the Merit Systems Protection Board, and bringing a complaint for violation of Equal Employment Opportunity (EEO). See CBA Article 30 for more EEO information and CBA Article 41 for more information on Prohibited Personnel Practices.

Keep in mind that the CBA frequently requires you to choose between filing a grievance or pursuing the other action, and once you've chosen, you cannot go back and choose the other option.  For example, CBA Article 30 specifies that "a bargaining unit employee may file a discrimination complaint under the negotiated grievance procedure [of CBA Article 34] or the administrative procedure provided by statute and regulations [for challenging EEO violations], but not both." See CBA Article 30, Section 4.

Grievance of the Parties
Where the union and EPA disagree over interpretations of the CBA or other rights granted by statute or regulation, we can file a "grievance of the parties." Typically these types of grievances would not apply to individual complaints, unless they involved a large number of grievants. See CBA Article 34, Section 9.

Does the Union Have to Represent Me?
While federal law requires the union to provide certain basic representation to all employees in the bargaining unit regardless of membership, the union may decide not to represent you unless you are a dues-paying member on other optional activities. For example, the union does not have to represent an employee in an oral reply in connection with a proposed disciplinary action such as a suspension, removal, or an unacceptable performance action such as a demotion. 

We are experts in the grievance process and EPA procedures. We have limited resources when it comes to optional activities. We also are stronger and more effective when we have a larger membership, so your dues-paying membership matters.

Improving the Grievance Process
NTEU Chapter 280 is committed to improving the grievance process and making it fair. As we mentioned, EPA management largely treats the process as a formality on the way to arbitration, rather than using it to resolve matters in mutually-beneficial ways at the lowest level possible. That's a waste of tax payer money as arbitration costs the agency.

We're committed to improving the process to bring meaning to the words in the CBA and resolving issues at the lowest level possible. As part of the commitment, we routinely meet informally with managers to discuss potential resolution and resort to the grievance process when management has given us no other options. Unfortunately, we've been forced to file grievances with some frequently lately.