SECTION 1. The purpose of this article is to provide for a mutually acceptable method for the prompt and equitable settlement of employee, NWSEO, and Management grievances over the interpretation or application of this agreement and other conditions within the bargaining unit subject to the control of Management. Unless otherwise provided for, this procedure will be the sole procedure available to the NWSEO, Management, or bargaining unit employees for resolving grievances.
This article provides a grievance procedure that is fair, simple, and provides for expeditious processing, and which includes procedures that:
A. assure NWSEO the right to present and process grievances in its own behalf or on behalf of any employee in the bargaining unit;
B. assure each employee the right to present a grievance on his/her own behalf, and assure NWSEO the right to be present during the grievance proceeding;
C. assure Management the right to present and process grievances; and
D. provide that any grievance not satisfactorily settled under this procedure shall be subject to binding arbitration which may be invoked by either party.
As defined by 5 U.S.C. 7103 (a)(9), and, for the purposes of this agreement, a grievance means any complaint -
A. by any employee concerning any matter relating to the employment of the employee; B. by any labor organization concerning any matter relating to the employment of any employee; or C. by any employee, labor organization, or agency concerning-
1. the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or 2. any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.
For the purpose of this Article, "labor organization" means NWSEO.
Excluded from this negotiated grievance procedure (NGP) are the following:
A. Any claimed violation of subchapter III of Chapter 73 of Title 5, U.S. Code relating to prohibited political activities;
B. Retirement, life insurance, or health insurance;
C. A suspension or removal under Section 7532 of Title 5, U.S. Code (national security);
D. Any examination, certification, or appointment;
E. The classification of any position which does not result in the reduction in grade or pay of an employee;
F. Termination of probationary and temporary employees;
G. Non-selection for promotion from a group of properly ranked and certified candidates;
H. Any issue where there would be no tangible relief to the grievant;
I. Granting or failure to grant incentive awards;
J. Warnings and notice of proposed action;
K. Non-adoption of suggestion;
L. Content of published DOC, NOAA and NWS regulations and policies (however application of such regulations and policies may be grieved);
M. Non-selection for temporary promotion of less than 120 days; and
N. The filling of any position outside the bargaining unit.
In matters covered by Equal Employment Opportunity regulations, exclusions #G, I and M of Section 1 do not apply. An employee may initiate an action under the provisions of Section 4(A) and Article 18, Section 3.
SECTION 2. INTENT AND UNDERSTANDING OF THE PARTIES
A. Management and NWSEO recognize and endorse the importance of settling grievances, promptly and equitably at the lowest possible supervisory and NWSEO level. Employees may bring his/her concern to either the Steward, the manager, or both, on an informal basis, prior to the use of these procedures. The Steward will advise the employee, and if requested, speak to the manager about all such concerns as soon as possible. The provisions of this Agreement shall not preclude a bargaining unit employee from bringing a matter of personal concern to either management or NWSEO.
B. The parties agree to cooperate fully in processing grievances and to make every reasonable effort to ascertain, document, and present the relevant facts relating to any matters processed under this procedure.
C. Employees should recognize that NWSEO's right to information for grievance processing and other representational rights pursuant to 5 U.S.C. 7114 (b) may supersede the employee's right to privacy provided by the Privacy Act (5 U.S.C. 552a).
SECTION 3. TIME LIMITS
A. All time limits specified in this Agreement are binding. This does not preclude the request for an extension of seven (7) calendar days. The request shall be granted automatically and documented by the requester and the grantor, with copies to the other. Additional extensions shall be reasonable and only by mutual agreement and documented in writing to one another. In considering an extension, the parties will consider (1) the length of the delay, (2) the existence of circumstances beyond the control of the party, and (3) whether prejudice to the employer or NWSEO would result from a waiver of time limits.
B. Failure of NWSEO, the grievant, or the grievant's representative to observe any time limit shall nullify the grievance.
C. Failure of Management to observe any time limit shall automatically elevate the grievance to the next step.
SECTION 4. PROCEDURAL INFORMATION
A. In adverse actions (5 U.S.C. 7512), EEO discrimination complaints, prohibited personnel practices under Section 2302 (b)(1), and removal or reduction-in-grade for unacceptable performance (5 U.S.C. 4303), an aggrieved employee may use either the negotiated grievance procedure or the statutory appeals procedure but not both. An employee shall be deemed to have exercised his/her option at such time as the employee initiates a timely complaint or appeal under the applicable statutory procedure or timely files a grievance, in writing, in accordance with the provisions of the NGP, whichever occurs first.
B. An employee may present a grievance to Management and have it adjusted with or without the services of NWSEO. If presented without NWSEO representation, such grievances may be adjusted without NWSEO intervention, provided the adjustment is not inconsistent with the terms of this agreement.
C. Employees who choose to present their own grievances without intervention by NWSEO are not entitled to further review or consideration beyond the opportunity to present their grievances and have them adjusted, affirmatively, or negatively. The decision on such a grievance is final as to the employee who chooses to present his or her grievance without the intervention of NWSEO. The NWSEO National President will be provided with a copy of the adjustment.
D. Should Management or NWSEO question the grievability of such a matter presented under the terms of this Agreement, such will be presented to an arbitrator in accordance with Article 11, Arbitration.
E. A grievance which does not contain the information necessary to reach a decision, or is otherwise unclear, will be returned to the representative of record or the grievant with an explanation of the reason(s) for its return within seven (7) days of its receipt. If such a grievance is re-initiated, it must be done within ten (10) calendar days after receipt of the returned grievance, or it will be terminated at that step. The Management time limits to respond begin when the information requested is received.
F. New issues may not be raised by either party or the grievant after the decision is rendered at Step One of this procedure, however the parties may mutually agree to join new issues to a grievance in progress. The parties may mutually agree to amend a grievance at any step.
SECTION 5. GRIEVANCE RESOLUTION
A. The filing party may terminate the processing of a grievance at any time. Once terminated, the same grievance may not be re-instituted by the grievant and/or NWSEO.
B. If any employee who has filed a grievance departs the bargaining unit before a decision is reached on a grievance which is being processed, the grievance is null and void unless the employee can be granted tangible relief.
C. If, at any step, NWSEO and Management agree that no grounds existed for a grievance or they agree to the means of adjusting the grievance, they shall state their agreement in writing, signed by both parties. This will constitute the final resolution of the grievance.
D. It is understood that when a decision concerning a disciplinary or adverse action is accepted by a grievant, it will be considered to be settled in its entirety, and neither the grievant nor NWSEO may elect to proceed further with the grievance or appeal. Such a settlement shall not be precedent in any future grievance or appeal involving a subsequent disciplinary or adverse action.
E. Any resolution resulting from a successful grievance mediation initiated under this Article shall be in writing and shall be binding on management, the employee, and the union for that specific grievance, subject to reviews by NOAA and Department of Commerce staff required by the NOAA ADR Program. Mediated resolutions shall not be considered as a precedent for any other grievance covering the same or similar matters.
SECTION 6. REPRESENTATION AND EMPLOYEE OFFICIAL TIME
A. When an employee chooses to be represented by NWSEO under the provisions of this Article at Step One, he/she shall be normally represented by the local steward. The designation of a representative at Step One does not prohibit the grievant from changing representatives at any subsequent step. Any changes in NWSEO representation thereafter shall be documented in writing to the appropriate management official. The NWSEO representative will be afforded appropriate official time for grievance processing in accordance with Article 7.
B. Unit employees may only be represented in grievances and arbitration, as provided for in this agreement, by NWSEO. Unit employees may not be represented by representatives of their choosing, including attorneys, in this procedure.
C. Once a representative has been designated, all correspondence and communications will be sent to the representative with courtesy copies to the grievant. Management shall not contact the grievant directly, either in writing or verbally, if the grievant has designated a representative. If during the course of a grievance, an NWSEO representative contacts a management official, the representative will inform the official of his representational role and the purpose of the contact. If the NWSEO representative at Step One is an attorney, the management official contacted has the option of first consulting with the agency's representative of record in the Department of Commerce General Counsel's Office.
D. An aggrieved bargaining unit employee, if otherwise in a duty status shall be granted a reasonable amount of official time without charge to leave or loss of pay to prepare and present his/her grievance, including time to secure advice on his/her rights, obtain information or assistance, to prepare documents, and to prepare for an arbitration hearing in accordance with Article 7. The granting of official time is subject to the approval of the appropriate official on a case by case basis, depending upon exigency of the needs of the service. It shall be understood that an alternate suggested time is an acceptable accommodation.
SECTION 7. EMPLOYEE GRIEVANCES.
A. When an employee chooses to file a grievance, the grievance must be submitted, in writing, to the immediate supervisor within fifteen (15) calendar days of the date the employee is harmed, becomes aware of or should have been aware of the action being grieved. The written grievance shall contain the following:
1. The name and duty station of the grievant. 2. Must clearly state that this is a grievance. 3. A brief description of the facts surrounding the grievance including relevant dates and places and known witnesses. 4. The specific provision of this agreement (Article, Section if a contract violation is being grieved, if known). 5. Any past practice which is claimed to have been violated. 6. The specific law, rule, or regulation claimed to have been violated (if known to the grievant). 7. An explanation of how the grievant was harmed. 8. The remedy being sought. 9. The name and address of the grievant's union representative, or a statement that the employee is representing himself/herself. 10. All grievances must be signed and dated.
A. The supervisor or designated management official reviewing a grievance for Step One adjustment must issue to the employee or the designated representative, a dated written notice of the disposition of the grievance which contains the following information within fifteen (15) calendar days:
1. the decision with respect to the grievance; 2. the reason for the decision; 3. the reasons for granting/denying the relief; 4. the grievant's right to file at the next step of the NGP if still dissatisfied; 5. the time limit; and 6. the name and address of the next level for submission.
A. An employee or designated representative dissatisfied with the answer provided in Step One may appeal the grievance to the Regional/Office Director, or designee, within fifteen (15) calendar days of receipt of the written response.
The Step Two written grievance shall contain a general statement explaining why management's Step One response is not acceptable and a copy of the Step One grievance and the response.
In those cases where the Assistant Administrator for NWS represents the next higher level of line supervision, the grievance shall be submitted to the Deputy Assistant Administrator for NWS, to fulfill the Step Two requirement. Within twenty-one (21) calendar days following receipt of the grievance, Management will send a written decision to the grievant or his/her designated representative which will include the name and address of the next level for submission.
A. If satisfactory settlement is not reached at Step Two, and further review is necessary, 2 options are available:
1) the grievance must be sent to the. Assistant Administrator for NWS, or designee, within fifteen (15) calendar days of receipt of the decision in the preceding step. This written grievance must contain a copy of all documents developed during Steps One and Two and general statements of why the grievant feels Management s Step Two response is not acceptable;
2) A request to mediate the grievance must be sent to the Assistant Administrator for NWS, or designee, within fifteen (15) calendar days of receipt of the decision in the preceding step. This request must include a copy of all documents developed during Steps One and Two and general statements of why the grievant feels Managementís Step Two response is not acceptable. Employees represented by NWSEO In Steps One and/or Two of the grievance procedure must first consult with their designated representative before making a mediation request. Within fifteen (15) calendar days of receipt of a request to mediate, the NWS must decide whether the grievance is appropriate for mediation.
If the NWS agrees to mediate the grievance, the NWS will initiate action to obtain the services of a mediator through the NOAA Alternative Dispute Resolution (ADR) Program Administrator. The costs of the mediator shall be borne by the NWS. Mediation sessions will utilize NWS facilities at the worksite of the employee whenever possible. In the event that a mutual resolution of the grievance cannot be achieved through mediation, the employee must use the procedures of Step Three A.1) above to obtain further grievance consideration.
If the NWS refuses to mediate the grievance, the grievance shall proceed using the procedures in Step Three B. and Step Three C. below.
B. Within forty-five (45) calendar days following receipt of the grievance, a written decision will be sent to the designated representative (or to the grievant if no representative is designated). In the case of an employee who chooses to present such grievances without NWSEO representation designated in Step One, this decision will be final and arbitration may not be invoked.
C. Management will also simultaneously send a copy of the Step 1, 2, and 3 grievances and responses to the NWSEO national office and to the NWSEO National President.
SECTION 8. All responses made by bargaining unit employees to notices of proposed disciplinary actions shall be considered as fully satisfying the requirements for contesting the disciplinary actions through Step One of the grievance procedure contained in this Article. After disciplinary action is taken, an employee who responded to the notice of proposed disciplinary action shall be entitled to grieve the discipline by presenting a grievance directly into Step Two of the NGP. If the employee did not respond to the notice of proposed disciplinary action, the employee may grieve the action after the discipline is taken by presenting a grievance at Step One of the NGP.
SECTION 9. UNION/MANAGEMENT GRIEVANCE PROCEDURE
A. Management grievances shall be initiated in writing by the Assistant Administrator for NWS or designee and presented to the NWSEO President, or designee, within 30 calendar days of the action or condition giving rise to the grievance. Decisions by the NWSEO President, or designee shall be rendered in writing no later than 30 calendar days following receipt of the grievance. Should the issue remain unresolved, arbitration may be invoked by Management.
B. Union grievances shall be initiated in writing by the NWSEO President, or designee and presented to the Assistant Administrator, or designee within 30 calendar days of the receipt of the action or the condition giving rise to the grievance. Grievances filed by the Union which are not institutional in nature, i.e. there is a specific harm that can be identified to the union as an institution, must identify the aggrieved employees by name, location, harm incurred, violation alleged, date(s), time(s), place(s) of the action which gave rise to the grievance, and other pertinent information which can be evaluated in making a decision. Decisions by the Assistant Administrator or designee shall be rendered no later than 30 calendar days following receipt of the grievance. Should the issue remain unresolved, arbitration may be invoked by the Union.
SECTION 10. MEMORANDUM OF UNDERSTANDING
A. The grievance procedure created by this section shall be used exclusively to resolve differences over interpretations or applications of MOUs referenced in Article 8.
B. A grievance must be presented in writing within fifteen (15) calendar days of the alleged violation of the MOU at the level of the signatory of the MOU. When a grievance is filed, the parties will meet and/or discuss the matter within fifteen (15) calendar days after receipt. A written decision will be issued within fifteen (15) calendar days of the meeting or discussion. If the grievance is not settled by this method, the grieving party at the National level may invoke arbitration within thirty (30) calendar days after receipt of the final decision.
C. The arbitrator's decision resolving these differences shall not alter, change, amend, or conflict with the controlling National agreement.
Arbitration awards or grievance settlements over MOU shall not be applicable or precedential beyond that area covered by the particular MOU in dispute unless the parties at a higher level agree otherwise.
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