Article 32

GRIEVANCE PROCEDURE

Section 1

The Employer recognizes that an employee may submit and seek resolution of grievances under the provisions of this Article. The Employer will not restrain, interfere with, coerce, discriminate against, intimidate or engage in any reprisal against an employee or Union representative for exercising rights under this Article. This Article is designed to provide a mutually acceptable means of resolving grievances at the lowest level possible, and the Employer and the Union agree to work toward this end in good faith.

Section 2

Except as provided below, a grievance may be initiated by employees, individually or jointly, by the Union itself, by the Union on behalf of one or more employees, or by the Employer. A grievance is defined as any complaint:

a. by an employee concerning any matter relating to his or her employment;

b. by the Union concerning any matter relating to the employment of an employee; or

c. by an employee, the Employer, or the Union concerning:

1. the effect of interpretation, or claim of breach, of this Agreement; or

2. any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment.

Section 3

This Article will not apply to any grievance concerning:

a. any claimed violation of 5 U.S.C., Chapter 73, Subchapter III (relating to prohibited political activities);

b. retirement, life insurance or health insurance;

c. a suspension or removal under 5 U.S.C. § 7532 (relating to national security matters);

d. any examination, certification or appointment (5 U.S.C. § 7121 (c)(4));

e. the classification of any position that does not result in the reduction of either grade or pay of any employee;

f. the content of Agency ethics rules;

g. the removal of a probationary or term employee;

h. non-selection for promotion from a group of properly rated and ranked candidates except if such action is alleged to have been taken for discriminatory reasons prohibited by statute, that issue may be grieved under this procedure;

i. filling of supervisory positions or other positions outside the bargaining unit;

j. non-adoption of a suggestion;

k. non-disciplinary counselings, warnings, or notices of proposed actions; or

l. an appeal by an employee of a RIF action.

Section 4

A. This grievance procedure will be the exclusive procedure available to employees, the Employer, and the Union for resolving any grievance in accordance with 5 U.S.C. § 7121, except as provided in Subsections 4(B), (C), and (D) of this Article.

B. If a grievance also constitutes an unfair labor practice, the aggrieved party may seek redress under this Article or under the unfair labor practice procedure, but not both. An employee will be deemed to have exercised his or her option to raise a matter either under the appropriate statutory procedure or under this grievance procedure at such time as the employee timely files an unfair labor practice charge or timely files a grievance in writing in accordance with the provisions of this Article, whichever event occurs first.

C. A grievance involving discrimination based upon race, color, religion, gender, national origin, age, handicapping condition, marital status, or political affiliation may, at the discretion of the grievant, be raised either under the appropriate statutory procedure or under this grievance procedure, but not both. Pursuant to 5 U.S.C. § 7121(d), an employee will be deemed to have exercised his or her option to raise a matter either under the appropriate statutory procedure or under this grievance procedure at such time as the employee timely files a formal complaint of discrimination or timely files a grievance in writing in accordance with the provisions of this Article, whichever event occurs first.

D. An employee who receives a written decision letter effecting an adverse or unacceptable performance action may elect to challenge such action in only one of the following ways:

1. By filing an appeal with the Merit Systems Protection Board (MSPB) in accordance with applicable law and regulation;

2. Under this Agreement, and with the Union’s concurrence, by appealing directly to binding arbitration within the time set forth in Article 33 (Arbitration) of this Agreement; or

3. By filing a formal complaint of discrimination under the administrative EEO process.

Section 5

A grievant is entitled to be assisted by a Union representative in the submission of grievances, or may submit grievances without Union representation. No individual may serve as an employee’s representative in the processing of a grievance under this procedure, unless such representative has been approved by the Union. If a grievant submits a grievance without Union representation, the Union will be given the opportunity to be present at all formal discussions of the grievance. To the extent possible, the Union will be given reasonable advance notice of such discussions.

An employee does not have the right to take a matter to arbitration unless the Union agrees to do so.

Section 6

Employees and supervisors are strongly encouraged to resolve their concerns informally prior to submitting grievances under this Article.

When a grievance is initially filed or at the second step, upon mutual agreement, the following Alternative Dispute Resolution Process may be followed instead of the standard grievance process specified in Section 8 below. This Alternative Dispute Resolution Process will not exceed twenty (20) calendar days, unless extended upon mutual consent.

The affected parties will meet with a mutually agreed upon mediator to attempt to resolve the matter. Mediators may come from the FMCS, Shared Neutrals Program, or any other source mutually agreeable to the parties.
The parties may mutually agree to other participants such as Union and Management representatives or subject matter experts.

The parties will meet at mutually agreeable times to attempt to resolve the matter.

If the matter is resolved, the grievance will be withdrawn.

If the matter is not resolved, the grievance will continue through the standard grievance process.

At any time, either party may choose to terminate this Alternative Dispute Resolution Process. The grievance will then continue through the standard grievance process.

Settlement offers and discussions will not be used as evidence or referred to if the grievance is not resolved through this Alternative Dispute Resolution Process.

The time frames for the standard grievance process will be tolled during the Alternative Dispute Resolution Process.

Section 7

Every grievance submitted by an employee pursuant to this Article must be in writing and should contain the following information:

a. the date submitted;

b. a description of the alleged violation in sufficient detail to identify the basis of the grievance;

c. references to the appropriate contractual provision, law, rule, or regulation alleged to have been violated;

d. a statement of the personal remedy sought; and

e. the name and Division/Office/Regional Office of the grievant.

The Employer agrees that it will not deny a grievance solely due to an incorrect citation.

Section 8

A grievance submitted by an employee will be processed as follows.

Step 1. A grievant must submit a written grievance to his or her immediate supervisor within twenty-one (21) calendar days of the event giving rise to the grievance or within twenty-one (21) calendar days of the time he or she may have been reasonably expected to have learned of the event. The supervisor shall schedule a meeting with the grievant and his or her Union representative at a mutually agreeable date and time within fifteen (15) calendar days following the date of the grievant’s submission, unless it is mutually agreed that the meeting be waived or scheduled at a later date. The meeting may be conducted in person or by telephone. The supervisor will answer the grievance in writing within twenty-one (21) calendar days following the meeting or, if no meeting is held, within twenty-one (21) calendar days of the submission. If the grievance is denied, the reasons for denial will be in this written answer. A copy of the answer will be provided to the grievant and to the Union representative (if any).

If, because of the nature of the grievance, either the grievant, immediate supervisor of the grievant or the Union believes the immediate supervisor is not the appropriate Step 1 official, that party may contact OHR to discuss whether the immediate supervisor should hear the grievance. OHR will then designate the appropriate official to hear the Step 1 grievance.

Step 2. If the grievant is not satisfied with the Step 1 answer, the grievance may be submitted in writing to the grievant’s Division/Office/Regional Office Head or designee no later than fifteen (15) calendar days following the date of the Step 1 answer or the day the answer was due. This submission will consist of the original written grievance and the Step 1 answer (if provided). A grievant may not raise new issues after Step 1. The Division/Office/Regional Office Head or designee may arrange for a meeting with the grievant and his or her Union representative, in person or by telephone, at a mutually agreeable time within fifteen (15) calendar days following the date of the grievant’s submission. The Division/Office/Regional Office Head or designee will answer the grievance in writing within fifteen (15) calendar days following the meeting or, if no meeting is held, within fifteen (15) calendar days of the submission. If the grievance is denied, the reasons for denial will be in this written answer. A copy of the answer will be provided to the grievant and to the Union representative (if any).

Notwithstanding the foregoing, if the grievant’s Division/Office/Regional Office Head was the reviewing official for the first step, this Step 2 will be bypassed.

Step 3. (optional) If the Union is not satisfied with the Step 2 answer, the Union may submit the grievance in writing to the Employer’s Executive Director at the SEC Headquarters located at 100 F Street NE, Washington, DC 20549 with a copy to the chief of the employee and labor relations branch, in writing or via email, no later than fifteen (15) calendar days following receipt of the Step 2 answer or the day the answer was due. This submission will consist of the original written grievance and the Step 1 and Step 2 answers (if provided). The Executive Director or designee will answer the grievance in writing within twenty (20) calendar days of the submission. If the grievance is denied, the reasons for denial will be in this written answer. A copy of the answer will be provided to the grievant and to the Union representative.

Step 4. The Union, at the national level, may, within thirty (30) calendar days following receipt of the Step 2 or Step 3 answer (or Step 1 answer if Step 2 has been bypassed) or the day the answer was due, notify the Employer’s Associate Executive Director of OHR at the SEC Operations Center located at 6432 General Green Way, Alexandria, VA 22312 by certified mail, with a copy, in writing or by email, to the chief of the employee and labor relations branch that it desires the matter be submitted to arbitration in accordance with Article 33 (Arbitration) of this Agreement.

Section 9

The Employer and the Union are strongly encouraged to resolve their concerns informally prior to submitting grievances under this Article.

Section 10

In the case of a grievance that the Union, at the national level, may have against the Employer, or that the Employer may have against the Union, the grievant will submit the grievance to the other Party in writing within twenty-one (21) calendar days of the event giving rise to the grievance or within twenty-one (21) calendar days of the time the grievant may have been reasonably expected to have learned of the event. A grievance will be submitted in writing to the Employer’s Associate Executive Director of OHR at the SEC Operations Center located at 6432 General Green Way, Alexandria, VA 22312 with a copy, in writing or by email, to the chief of the employee and labor relations branch, or to the NTEU Chapter President, and will provide the following information:

a. the date submitted;

b. a description of the alleged violation in sufficient detail to identify the basis of the grievance;

c. references to the appropriate contractual provision, law, rule, or regulation alleged to have been violated;

d. a statement of the remedy sought; and

e. the name of and contact information for the Employer/Union representative handling the matter.

Upon mutual consent, an Employer representative and a Union representative will meet within fifteen (15) calendar days of the submission of the grievance. The responding Party will answer the grievance in writing within twenty-one (21) calendar days following the date the grievance was received. If the grievant is not satisfied with the response, within thirty (30) calendar days following receipt of the response, the grievant may request the matter to be submitted to arbitration in accordance with Article 33 (Arbitration) of this Agreement.

Section 11

Failure of the Employer or the Union to render a decision within any time limits specified in this Article will entitle the grievant to progress the grievance to the next step without a decision, unless an extension of time limits has been mutually agreed upon. Failure of a grievant to observe the time limits specified in this Article where no extension has been granted, will result in termination of the grievance.

If the deadline for any action in this Article falls on a non-workday (e.g. Saturday, Sunday, or Holiday), the deadline will be extended to the next workday.

Section 12

Where two or more employees file individual grievances involving the same facts and the same issues arising out of the same incident, and all grievants request the same relief, the Union or Employer may request that the grievances be consolidated and, upon mutual consent, the grievances will be processed together through the procedures set forth in this Article.

Section 13

If the Employer believes that a grievance is not on a matter subject to the grievance procedure in this Agreement or is not subject to arbitration, the Employer will notify the Union in writing, stating the reasons for such determination.

Article 32 FAQs:

Plain English answers to common employee FAQs about the grievance process are provided below. To the extent that anything below could be construed as being in conflict with applicable provisions of the Collective Bargaining Agreement, laws, rules or regulations, the CBA or other governing law controls.

What is a grievance?

A grievance is a complaint by an employee concerning any matter related to his or her employment and any claimed violation, misinterpretation or misapplication of any law, rule or regulation affecting the conditions of his or her employment, including the provisions of the Collective Bargaining Agreement between NTEU and the SEC. Additionally, an employee who believes that he or she has been illegally discriminated against on the basis of race, color, religion, sex, national origin, age or handicapping condition has the right to raise the matter in a grievance or in an EEOC case (but not both).

Are there any specific rules that apply to grievances?

Yes. In addition to other applicable laws, rules and regulations, the grievance process at the SEC is governed by Article 32 of the Collective Bargaining Agreement between NTEU and the SEC.

What are some examples of what can be grieved?

Depending upon the facts, some of the types of issues that can be grieved include: the improper denial of a telework request; the improper denial of a request for an alternative work schedule, such as a 5-4/9 schedule; the improper denial of a career ladder promotion; the lowering of an evaluation; an unfair and/or inappropriate evaluation; the improper denial of a leave request; and a change in working conditions. These are merely examples of the types of issues that may be grieved. If you have a specific question or concern, you should consult with your local steward.

Is there anything that cannot be grieved?

Yes. Certain issues are excluded from coverage by any negotiated grievance procedure. These include: prohibited political activities; retirement, life insurance and health insurance; suspension or removal for national security reasons; any examination, certification or appointment; the classification of any position which does not result in the reduction in the pay or grade of the employee; the content of SEC ethics rules; the removal of a probationary or term employee; non-selection for promotion from a group of properly rated and ranked candidates (except if such action is alleged to have been taken for discriminatory reasons prohibited by statute); filling of supervisory positions or other positions outside the bargaining unit; non-adoption of a suggestion; non-disciplinary counselings, warnings or notices of proposed actions; or an appeal by an employee of a RIF action (reduction in force).

Is there any avenue available before filing a grievance?

Yes. Generally, your steward and you may meet with your manager before filing a grievance in an effort to attempt to reach an informal resolution. Under the Collective Bargaining Agreement, employees and supervisors are, in fact, strongly encouraged to resolve their concerns informally prior to submitting grievances. Furthermore, you may file a grievance but then opt for an Alternative Dispute Resolution Process to resolve your issue.

If I want to be represented by the union, what should I do?

If you have a concern you should contact a local steward in your area. The steward will then meet with you to discuss the problem and obtain a complete description of the situation that generated your complaint and the type of remedy being sought.

Do I get official time to meet with the steward?

Yes. You are entitled to receive official time to meet with your steward. However, you must sign out with your manager and get released from your duties before the meeting.

Is there a deadline for filing grievances?

Yes. Your grievance must be filed within 21 calendar days of the event which gives rise to your grievance or within 21 calendar days after you became aware of the matter out of which your grievance arose.

What kind of information can be requested during the grievance proceeding?

Both parties, including you, agree to jointly exchange information that is relevant and necessary to understand the dispute and maximize the potential of settling the matter. In addition, the parties have the obligation to make a complete record during the steps of the grievance procedure, including the obligation to produce any and all witnesses.

With whom will my grievance be filed?

Typically, your grievance will be filed with your immediate supervisor. However, sometimes a party may contact OHR to discuss whether the immediate supervisor should hear the grievance, if because of its nature another person is a more appropriate Step 1 official.

What happens after the grievance is filed?

Filing a grievance commences "Step 1" of the grievance process. Generally, a first meeting is requested by the union. Under the Collective Bargaining Agreement, this meeting may take place within 15 calendar days from the submission of the grievance. This time frame may be expanded upon agreement of the parties and, in reality, generally is extended to accommodate the parties’ schedules.

Who is present at the Step 1 meeting?

You, your steward, your manager, and an SEC representative may be present at the meeting. At the meeting, an oral presentation of your situation will be presented by your steward. Depending upon the circumstances, you may or may not participate in the discussions.

Do I receive official time to attend the Step 1 meeting?

Yes. You are entitled to receive official time to attend the meeting.

What happens after the Step 1 meeting?

Under the Collective Bargaining Agreement, the SEC's written response to your grievance is due within 21 calendar days following the meeting or, if no meeting is held, within 21 calendar days of the submission of your grievance. Once again, this time frame may be expanded upon agreement of the parties, and it may sometimes be necessary to do so.

What happens if I do not agree with my manager's response to my grievance?

If you are dissatisfied with the response provided at or after the first meeting (Step 1), the response may be appealed in writing by the union to your Division/Office/Field Office Head or designee, commencing "Step 2" of the grievance.

When does this appeal have to be made?

This appeal must be made no later than 15 calendar days of receipt of the Step 1 answer.

May I raise new issues at Step 2?

No. You are required to raise issues related to your grievance during Step 1.

What happens after the Step 2 grievance is filed?

As with Step 1, the Division/Office/Field Office Head may arrange for a Step 2 meeting with the union.

Do I receive official time to attend the Step 2 meeting?

Yes. You are entitled to receive official time to attend the Step 2 meeting.

When is the Step 2 meeting held?

Under the Collective Bargaining Agreement, the Step 2 meeting may take place within 15 calendar days from the date of your submission of your Step 2 grievance. This time frame may be expanded upon agreement of the parties.

When is a response due from management in Step 2?

If the Step 2 grievance is denied, the reasons for the denial will be provided in a written answer within 15 calendar days of the Step 2 meeting or, if no meeting is held, within 15 calendar days of the submission of your Step 2 grievance.

What happens after the Step 2 answer is provided to me?

Under the Collective Bargaining Agreement, the Union may commence "Step 3" by submitting the grievance in writing to the Executive Director of the SEC no later than 15 calendar days following receipt of the Step 2 answer or the day the answer was due.

How long does the Executive Director have to respond to my Step 3 grievance?

The Executive Director or designee will answer the grievance in writing within 20 calendar days of the submission. If the grievance is denied, the reasons for the denial will be provided in the written answer.

What happens if an unfavorable decision is made at the Step 3 level?

Adverse decisions made at Step 3 may be appealed to binding arbitration.

When does this appeal have to be made?

This appeal must be made within 30 calendar days of receipt by the union of the final decision.

Who decides to appeal the grievance to arbitration?

It is the responsibility of the NTEU chapter field representative, after consultation with the local chapter, to determine whether or not to appeal the case to arbitration. Arbitration is an expensive and imperfect process. The decision to submit a grievance to arbitration requires serious deliberation, because the losing party can expect the winner to use the victory in demanding the similar settlement of grievances involving the same issue.

What is an NTEU chapter field representative?

The NTEU field representative is an attorney who represents NTEU, not the individual grievant. At the SEC, there are a number of field representatives for various offices across the nation. The field representative is also responsible for presenting the grievance in the arbitration. However, the local chapter remains involved in the proceeding.

What are the criteria for deciding to arbitrate a particular grievance?

There are many criteria. The union must take into consideration such factors as: the meaning of the contract language; previous, related arbitration decisions rendered under the same contract and under similar provisions of contracts negotiated by other parties; agency regulations; laws; court decisions; regulatory decisions; the potential consequences of a negative decision; and the determination regarding whether the projected gains are worth the associated risks and costs.

Who pays for the arbitration?

Generally, each of the parties, the SEC and NTEU, pay one-half of the cost of arbitration, which includes fees and travel expenses. Of the amount paid by NTEU, one-half is paid by national NTEU and one-half is paid by Chapter 293. The dues paid by members make it possible to pursue arbitrations.

Who arbitrates the grievance?

The arbitrator is selected by both parties from a standing panel. Arbitrators are frequently lawyers or professors who have developed expertise in the areas of labor management relations and collective bargaining.

Who is present at the arbitration?

You, the NTEU field representative, the local chapter steward, the NTEU local chapter Chief Steward and/or President, NTEU's witnesses, the SEC's General Counsel's Office attorney and the SEC's witnesses may be present at the arbitration.

Will my manager be at the arbitration hearing?

If your manager is an SEC witness, he or she may be at the arbitration hearing to testify. However, the manager and any other witness is only allowed to be present at the time they testify and not during any other portion of the arbitration hearing.

Do I have to testify at the arbitration hearing?

Generally, yes, you will have to testify at the arbitration hearing.

Am I entitled to official time to attend the arbitration?

Yes. You are entitled to receive official time to attend the arbitration.

How long does the arbitration process take?

It generally takes several months to schedule an arbitration hearing. However, the scheduling of an arbitration can be delayed for a number of reasons, many of which are not under the control of NTEU, including the schedule of the arbitrator. Once the grievance is heard at arbitration, it may take another several months to receive a decision. Generally, however, if the issue is of an urgent nature, such as a proposed dismissal, efforts usually are made to schedule the arbitration as soon as possible.

What happens if the arbitration decision is unfavorable for me?

The arbitration decision is final.

Can a grievance be settled before the arbitration?

Yes, grievances can settle before the arbitration begins.

Who is responsible for discussing settlement?

The NTEU field representative and the attorney from the SEC's Office of General Counsel can reach a settlement, subject to their supervisors’ approval. The local NTEU chapter may have input in the settlement decision, but the final right to decide whether or not to settle rests with the NTEU field representative.

What happens if I am requested to attend a meeting with my manager concerning my conduct?

A meeting between you and your manager or other SEC official during which the topic of the discussion is discipline, or potential discipline, will entitle you to request to be accompanied by a union representative during the meeting. If such a request is made, the manager or other official will honor the request. Therefore, the meeting cannot be held until the union representative is present.

Does management have to accept all grievances?

If an employee files a grievance, management must accept the grievance, regardless of how trivial the agency considers the matter. It would be helpful for the employee to have information concerning the following:

Who committed the alleged violation(s)?
What was the violation?
When did the violation occur?
Where did the violation occur?
Were there any witnesses to the violation?
What remedy is requested?

National Treasury Employees Union Chapter 293

NTEU Chapter 293

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Article 32

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