to

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Welcome to San Antonio
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LMR BRIEFING San Antonio, Texas September 16, 2003
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A Grievance is just a tool.
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What did they do?
- and -
What do you want?
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What did they do?
Commonly known as the Description of Grievance
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A grievance is generally defined as any dispute
between labor and management in an area over
which management exercises some responsibility.
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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.

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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

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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?

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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
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Investigating a Grievance
1. Conduct an interview, listening carefully to
the employees 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.
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WritingtheGrievance
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• Traditionally the Five Ws are used to teach the
  writing of grievances - including the

Who?
When?
What?
Where?
Why?
But not today were going to simplify it.
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Dont say too much.
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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 cant fit the body
of the grievance in the space provided on an FAA
Grievance form you have probably written too much.
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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.
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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 its 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.
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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.
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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 Agencys unilateral decision
to implement new procedures without notice to and
bargaining with the Union, the Agency violated
the Unions rights, including but not limited to,
Article 7 of the CBA and 5 U.S.C. Chapter 71.
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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
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In Summary

• Dont 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.

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What do you want?
Corrective Action Desired or Remedy
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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.

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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.

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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.
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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
grievants pay, allowances, or differentials. The
make whole remedy does not apply to every
grievance.
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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 cant think of anything to satisfy
the grievance. In this case carefully examine
the grievance and get creative.
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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.
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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.
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Arbitrators 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 grievants 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.

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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 .
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The But For Clause.
The most significant requirement is the but for
finding, i.e., but for the agencys 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 agencys actions and the
loss of pay justifying a back pay award. The
evidence must support the arbitrators findings.
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Punitive Damages
Aint 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.
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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.
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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.
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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.
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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.
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• EVIDENCE

Prove It!
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If you cant prove it it didnt 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.
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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.
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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.
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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.
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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
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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.
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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.
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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 agencys or
law judges determination. A reviewing body
cannot overturn a good faith decision if based on
substantial evidence even if it would have
reached a different conclusion.
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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.
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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.
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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.
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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.
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Relevant Evidence
Relevant evidence tends to prove or disprove a
material fact. Some courts have defined relevant
evidence as, evidence that has a legitimate
tendency to prove or disprove a given proposition
that is material to the case. Relevant evidence
tends to establish a fact in controversy or to
render a proposition more or less probable. All
evidence introduced in an arbitration proceeding
should be relevant. To be material, all evidence
should have some logical bearing on an issue in
the case.
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Past Practice
When using past practice as evidence that
supports your case you need to be prepared to
prove it.
It is incumbent upon the party claiming past
practice to demonstrate the practice clearly
exists.
Therefore, the party asserting a past practice
argument must prove it by the preponderance of
the evidence.
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Rules Of Evidence in Arbitration
Strict observance of the legal rules of evidence
is not required in arbitration proceedings.
However, among arbitrators, there are varying
standards as to the rules of evidence to be
followed. An advocate should be prepared to
follow the rules of evidence as far as practical
in arbitration proceedings, if the arbitrator
requires it.
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Rules of Evidence at ADR

• Proceedings before the neutral evaluator are
  informal in nature.
• The presentation of documentation is limited to
  that presented at the third level review.
• Formal rules of evidence do not apply, and no
  transcript of the neutral evaluation conference
  shall be made.

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Specific Evidentiary Matters
The following are specific evidentiary matters
that often arise in arbitration proceedings.
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Hearsay
Hearsay is an out of court statement, other
than one made by a declarant who testifies at the
trial or hearing, offered in court to prove the
truth of the matter contained in the statement.
Arbitrators generally admit hearsay evidence in
arbitration proceedings, but qualify its
reception by informing the parties that hearsay
is being admitted only for what it is worth.
Typically, arbitrators will give much less
weight to hearsay testimony than they will give
to testimony where the declarant is subject to
cross-examination.
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Affidavits/Statements
It is discretionary with the arbitrator to admit
affidavits/ statements. An arbitrator will
usually give less weight to any
affidavit/statement than to live testimony.
However, affidavits or statements provide through
out the grievance process and in ADR the proof of
potential testimony. Affidavits and statements
can also establish credibility of a witness when
the witness testifies at an arbitration two years
later and the testimony matches the statement.
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Depositions
Arbitrators typically receive depositions into
evidence. Of course the arbitrator will not have
the ability to evaluate the demeanor, appearance
and other physical characteristics of the person
giving the deposition unless it is on video. If a
deposition is offered into evidence, the opposing
advocate must have an opportunity to appear at
the deposition and to cross-examine the deponent.
If any part of the deposition is introduced into
evidence by one advocate, the opposing advocate
has the right to offer other parts into evidence.
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Demonstrative Exhibits
Models, maps, computer animations, time lines,
charts, graphs, and summaries of voluminous
records are often used in arbitration. They help
provide an overview of large amounts of data or
facts. The arbitrator has wide discretion whether
to actually receive them into evidence.
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FAA Documents/Evidence
Just a couple of ideas

• Signed documents good Unsigned documents bad.
• Who is SC?
• Out of date or revised orders.
• Acronyms? (aka Alphabet Soup!)
• Where did you get that document?

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Obtained by Improper Methods
Arbitrators frequently exclude from evidence
information obtained by improper or illegal
methods. For example, evidence obtained from an
illegal search is usually excluded.
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Obtained by Improper Methods
Example One arbitrator held that the agency
properly issued a reprimand to a union official
for removing several pages from the supervisors
calendar on which pertinent information was
recorded. The arbitrator rejected the unions
contention that the grievants actions
constituted protected activity in that they were
part of a grievance investigation, since he had
failed to follow proper procedures for requesting
information.
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Obtained by Improper Methods
The best way to avoid this situation is to
properly obtain the information or evidence that
you need to prove your case.
The cool part is that the agency is required by
law (5 U.S.C. 7114b.4.) and contract (Art 9,Sec
19) to provide you the evidence you need to beat
them in a grievance. Then, if there is any
question on how you obtained a particular piece
of information, you are covered. An inforeq
clearly establishes how you got the information.
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Inspection and View
Often it is helpful to an arbitrator to inspect
and view the physical location where an incident
took place. An inspection and view can help the
arbitrator understand the facts. Inspections and
views must be carefully planned to avoid
unexpected surprises.
Inspection and viewing is unlikely at ADR
however, pictures, maps and/or drawings have been
used in the past and have been a help in ADR.
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Compromise and Admissions Made in Attempts to
Settle
Arbitrators usually do not admit into evidence
offers of settlement or offers of compromise. If
they are admitted, little weight is usually given
to them. Efforts to introduce this type of
evidence can result in lessening the trust
between the agency and the union.
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Necessary information needed for grievances/
arbitration for individuals that the agency has
deemed unsuccessful in the training program.The
following list represents the information that is
essential in the evaluation and arbitration/
litigation of individuals that are unsuccessful
in the training program. When escalating a
grievance to the regional level, please submit
the following
Evidence Needed (Example)
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1. Grievants employment history with the
Agency2. All training sheets for the position
on which the individual was unsuccessful on3.
All Skill Checks documentation4. All
documentation On the Job Training Familiarization
(OJTI)5. All documentation of Skill
Enhancement Training6. All documentation
including, but not limited to letters, memorandum
and record of conference between the
grievant/NATCA and the Agency.7. All
documentation on the extension of training hours.
Training Failure Evidence
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8. All documentation of time spent to regain
proficiency in accordance with Article 67, if
applicable.9. Copy of Grievants 3120
Certification page.10. Copy of Facility
Training Order.11. Copy of Terminal/En route
IPG (Instructional Program Guide).12. Copy of
all Agency order affecting training, i.e., (FAAO
3210.4)13. Copy of any and all
National/Regional/ Facility memorandum dealing
with OJT requirement
Training Failure Evidence (Continued)
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Training Failure Evidence (Continued)
14. Copy of Grievants Training Plan and all
revisions thereto. 15. Copy of all Training
Team recommendation, correspondence, record of
conference 16. Copy of any and all Facility
Evaluations performed in the time period in
question 17. Name of all instructors, their
qualifications and date of OJTI Course 18. List
of all individuals that were unsuccessful in the
training program at the facility in the past
three (3) years and their present status and
facility
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Closing
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How to Lose a Grievance

• Dont file it.
• Miss a timeline.
• Grieve non-grievable item.
• No evidence or proof.
• Poor or no preparation.
• Fail to prove past practice.

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How to Win a Grievance

• Meet All Timelines
• Document Everything
• Preserve all Evidence
• Research
• Prepare Case
• Maintain Creditability

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Top Ten
Top Ten Things Advocates say at Third-Levels

• 6.   I will always cherish the initial
  misconceptions I had of you. 
• 7.   I like you.  You remind me of when I was
  young and stupid.
• 8.   I'll try being nicer if you try being
  smarter.
• 9.   I see you've set aside the special time to
  humiliate yourself in public.
• 10. I can see your point, but I still think
  you're full of it.

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Top Ten
Top Ten Things Advocates say at Third-Levels
1. I wish I could see your point of view, but I
can't get my head that far up my ass! 2.  Yes, I
am an agent of Satan, but my duties are largely
ceremonial. 3.   If I throw a stick, will you
leave? 4.  I'm trying to imagine you with a
personality. 5.   Any connection between your
reality and mine is purely coincidental.