CHAPTER 2. INITIAL GRIEVANCE PROCEDURES

2-1. To Whom Initial Grievance is Presented.

A. To Immediate Supervisor In Most Cases. It is desired and encouraged
that the Initial Grievance be resolved at the lowest practical
management level. An employee with a grievance shall present the Initial
Grievance to his/her immediate supervisor, who is designated as the
Initial Grievance Officer. The employee shall present the grievance in
writing and shall provide a copy to the servicing Human Resources
office.

B. Merit Staffing Exception. An employee with a grievance concerning a
merit staffing action shall present the Initial Grievance to the
servicing Human Resources office, but not the human resources specialist
directly involved in the action. The servicing Human Resources Director
is responsible for the initial merit staffing action.

C. Exception for Grievants Who Have Been Suspended. An employee who has
been

suspended for fourteen (14) calendar days or less is entitled to only
the Final Grievance procedure. The grievance shall be presented to a
management official one administrative level higher than the individual
who issued the decision notice on the suspension. The Final Grievance
shall be presented to the Final Grievance Officer within fourteen (14)
calendar days of receipt of the suspension decision notice.

D. Exception for Grievants Who Have Been Reprimanded. An Official
Reprimand sometimes includes an opportunity for the recipient to reply.
In such cases the employee will be entitled to only the Final Grievance
procedure. The grievance will be filed with a management official one
administrative level higher than the individual who issued the Official
Reprimand. In this situation the Final Grievance shall be presented to
the Final Grievance Officer within fourteen (14) calendar days of
receipt of the Official Reprimand. If the employee was not given the
opportunity to reply to the Official Reprimand, he/she shall

be entitled to both the Initial and Final Grievance procedures, filing
the Initial Grievance with the management official who issued the
Official Reprimand.

E. Performance Evaluation Exception. An employee covered by this
grievance procedure who wishes to file a grievance based upon a
performance evaluation shall file the Initial Grievance with the
official who served as the reviewing official in the evaluation process.

F. Other. When the matter/issue being grieved is not under the control
of the immediate supervisor, the grievance should be filed with the
management official at the lowest level that has authority to act on the
matter being grieved.

2-2. Time Limit for Presenting Initial Grievance. An employee must
present a grievance within fourteen (14) calendar days of the date of
the act or occurrence being grieved or the date he/she became aware of
that act or occurrence. An employee may present a grievance concerning a
continuing practice or condition at anytime during the existence of the
practice or condition being grieved.

2-3. Content of Initial Grievance. An Initial Grievance must:

A. Be in writing (a copy must be provided to the servicing Human
Resources office);

B. Contain the grievantFs name, grade, title, and duty station;

C. Contain the name and address of the grievantFs representative, if
any;

D. Contain sufficient detail to identify and clarify the issues of the
grievance, including the date of alleged incident(s); and

E. Specify the personal relief requested by the grievant. A request for
disciplinary action affecting an agency official or another employee is
excluded as an acceptable personal relief under this Handbook.

2-4. Review of Initial Grievance.

A. The Initial Grievance Officer, in consultation with the servicing
Human Resources office, and in consideration with the requirements of
paragraph 1 10. shall:

1\. Determine whether to accept, reject, or remand all or part of the
grievance. These determinations are explained in paragraphs 2-4.B. and
C.;

2\. Determine if the grievance meets the requirements of paragraph
1-10.;

3\. Determine which issues, if any, will be investigated if the
grievance is accepted;

4\. Determine whether to allow grievantFs choice of representative;

5\. Give fair and objective consideration to the grievance; and

6\. Determine what method(s) to use to resolve the grievance (e.g., Fact
Finder).

B. If the issues of the grievance or the relief sought are not clearly
described in the grievance, the Initial Grievance Officer may remand the
grievance to the grievant for clarification of the issues/matter or
additional information before proceeding.

C. The Initial Grievance Officer may reject the Initial Grievance for
good cause, including, but not limited to, the following reasons:

1\. The employee is not covered under paragraph 1-2. or the subject of
the grievance is excluded from coverage under paragraph 1-8.B.;

2\. The grievance is untimely filed; or

3\. The remedy requested is not personal to the grievant or is not
subject to the control of the Department.

D. Before rejecting the grievance, the Initial Grievance Officer shall
obtain the concurrence of the servicing Human Resources office (except
in merit staffing grievances, where there is no need for such
concurrence).

E. Rejection of the grievance shall be in writing and signed by the
Initial Grievance Officer.

The Initial Grievance Officer must receive concurrence from the
servicing Human Resources office prior to rejecting the Initial
Grievance. The rejection notice will identify to whom the grievant may
file a Final Grievance. This written notice to the employee will, in
effect, establish a grievance file that will be in the custody of the
servicing Human Resources office.

F. If the grievance is accepted, the Initial Grievance Officer shall
review the relevant issues and merits of the case, in consultation with
the servicing Human Resources office.

2-5. Action by Initial Grievance Officer. The Initial Grievance Officer
shall make every effort to resolve the grievance in a manner acceptable
to the grievant. In doing so, the Initial Grievance Officer shall
proceed as follows upon receiving the Initial Grievance:

A. Review the Initial Grievance to establish that it contains the
information required in paragraph 2-3. above and identify the issues
being grieved;

B. Accept or reject the grievance, or remand the grievance to the
grievant for additional information;

C. Fully and impartially consider all the facts and relevant issues of
the grievance;

D. Take into consideration the grievantFs viewpoint, the viewpoints of
others concerned, and the interests of the Department. Consideration may
include, as necessary, communication with any or all persons concerned
as well as with any other appropriate official;

E. Based upon a review of the record, resolve the grievance in a manner
acceptable to the grievant, if possible within law, regulation, and
departmental policy;

F. Appoint a Fact Finder if it is necessary to get clarification on
issues being grieved;

G. Furnish the grievant and the servicing Human Resources office a
timely Report of Disposition as described below. The adjustment or
report must be made no later than twenty-one (21) calendar days after
receipt of the Initial Grievance; and

H. If the Initial Grievance Officer cannot make a decision on the
grievance in a timely manner, the Initial Grievance Officer shall obtain
the approval of the Final Grievance Officer and the concurrence of the
servicing Human Resources office for an extension. If an extension is
approved, the Initial Grievance Officer will notify the grievant, in
writing, of the need for additional time and provide a new response
date. (See 1-15.A.)

2-6. Fact Finding Procedures.

A. If the Initial Grievance Officer makes a determination that
fact-finding is necessary to obtain supplemental information, he/she may
appoint a Fact Finder to complete the inquiry and prepare a fact-finding
report for inclusion in the grievance file. Additionally, the Initial
Grievance Officer may request that the Fact Finder include
recommendations in the report.

B. The Fact Finder must be an individual who has not been involved in
the matter being grieved and who does not occupy a position subordinate
to any involved official.

C. If circumstances warrant an extension of the twenty-one (21) calendar
day time limit for completing fact-finding, the Fact Finder shall submit
a written request for an extension to the Final Grievance Officer. If
the extension is approved, the Fact Finder shall notify the interested
parties.

2-7. Assignment/Authority of Fact Finders. The Fact Finder is appointed
in writing by the Initial Grievance Officer. The appointment document is
the Fact FinderFs authority for interviewing witnesses, obtaining
documentary evidence, and receiving advice and assistance from subject
matter experts. When obtaining documents/information subject to the
Privacy Act, the Fact Finder must take necessary precautions to prevent
improper disclosure of

information.

2-8. Responsibility for Fact Finder Process Expenses. The grievantFs
servicing Human Resources office shall coordinate arrangements with
respect to payment of expenses, if any. These costs are the
responsibility of the program office in which the grievant is employed,
except when Merit Staffing grievances are filed across organizational
lines. In those instances, the office in which the merit staffed
position is located will be responsible for payment of incurred expenses
that include: travel, per diem, court reporter, etc.

2-9. Grievance Issues To Be Examined By Fact Finder.

A. Usually, the Initial Grievance Officer will specify clearly, in
writing, the issues in a grievance that are accepted, rejected, and/or
remanded. If the grievance is remanded to the grievant for additional
information or clarification of an issue or matter, the Fact Finder will
examine only those issues that are specified and accepted for grievance
processing. The Fact Finder may narrow/define the scope of the issues
contained in the grievance acceptance letter when the Initial Grievance
Officer has not done so or has not specified them clearly enough. The
Fact Finder may contact the grievant for information when a better
understanding or a narrower scope of the issues is needed. However, in
no case is the grievant permitted to expand the scope of the issues or
introduce new ones.

B. The Fact Finder should strive to focus only on relevant and material
information. The Fact Finder should avoid dealing with extraneous
factual matters which, if proven, would not affect the grievance
decision.

2-10. Types of Fact Finding Inquiries. The Fact Finder is responsible
for conducting an inquiry of a nature and scope that is appropriate to
the issues involved in the grievance. The facts should be presented
through evidence. The inquiry may include any one or a combination of
the following methods:

A. Securing documentary evidence;

B. Conducting personal interviews; and

C. Group meetings, if deemed necessary.

2-11. Fact Finding Evidence. The fact finding should focus on the
following:

A. Best Evidence Rule. To prove the contents of a writing (or a
recording or photograph), a party must produce the original writing
unless it is unavailable, in which case secondary evidence { such as
copies, notes, or testimony { may be admitted;

B. Circumstantial Evidence. Evidence related to circumstance/fact which,
either alone or in connection with other facts/circumstances, enables
one to reasonably infer the existence or non-existence of another fact
at issue;

C. Direct Evidence. Evidence that tends to directly prove or disprove a
tfactv at issue is called direct evidence. An example would be
eyewitness accounts;

D. Hearsay Evidence. Testifying to something that was not directly seen,
heard, or

otherwise sensed, and that one became knowledgeable of from someone or
something else constitutes hearsay. Hearsay does not prove the truth or
falsity of something. It may only prove that a statement was made, but
it does not prove the truth of the statementFs content. However,
affidavits, letters, memoranda, etc., are types of hearsay that may be
included, especially when the originatorFs comments as to their
validity/accuracy are included. Official Government records, business
records and the like are accepted into evidence even when they may
consist all or in part, of hearsay statements;

E. Immaterial Matters. Matters that are relatively unimportant to the
issues should not be included. They may unfairly give the appearance of
increased gravity when they are prejudicial to the grievant;

F. Irrelevant Matters. Matters that do not have a bearing on the issues
should not be included. Fairness is compromised when evidence is
admitted that is prejudicial to the grievant and is not relevant to the
issues. Such evidence may influence the Initial Grievance decision even
though it is irrelevant to the matters at issue;

G. Opinion Evidence. Any conclusions, opinions, or judgments rendered by
the witness are opinion evidence. Its value depends on the competence of
the witness to render it and his/her ability to support the
conclusions/opinions/judgments with the specifics that serve as the
basis for the conclusions/opinions/judgments;

H. Privileged Evidence. Certain types of evidence, although clearly
relevant, may have to be excluded from the report for policy reasons.
Examples are national security, classified material, names of Government
informants, and communications between an employee and his/her
representative. A grievance file is an open record - open to review by
the grievant and his/her representative and by an administrative forum
or court that may have jurisdiction over the matter; and

I. Repetitiousness. Although all evidence that is to be considered must
be made a part of the grievance file, unduly repetitious evidence is not
needed to prove a point. Evidence is unduly repetitious when it
duplicates evidence that already conclusively proves the point.

2-12. Fact FinderFs Evaluation of the Evidence.

A. The Fact Finder must review all facts obtained and make a finding on
each of the issues referred by the Initial Grievance Officer. In
administrative grievance proceedings, the issues must be proven by a
preponderance of the evidence, except in grievances concerning
performance appraisal ratings which requires proof of substantial
evidence, i.e., a lesser standard necessary to support the assigned
element and summary ratings.

B. In considering and evaluating evidence, the Fact Finder should keep
in mind any extenuating circumstances and the various kinds of evidence.
There is no general rule for contrasting the weight of circumstantial
and direct evidence. The weight given will depend on the particular
case. Hearsay evidence must also be evaluated. However, the
circumstances under which hearsay statements were made must be carefully
considered before determining whether to consider such material. If,
after due consideration, the Fact Finder is convinced by the grievance
file that it is more probable than not that the issues raised are true,
his/her findings should sustain the reasons.

2-13. Fact FinderFs Report. The Initial Grievance Officer will consider
the fact-finding report in reaching an appropriate decision.

A. The written report shall contain:

1\. A brief summary of the case, including a listing of the issues;

2\. An analysis and finding on procedural issues, if appropriate;

3\. An analysis of material evidence relating to each issue;

4\. A finding on each issue;

5\. A chronology of the Fact FinderFs activities; and

6\. Recommendations based on the findings, if requested by the Initial
Grievance Officer.

B. Findings must be based solely on conclusions believed to be true. The
fact-finding analysis should show the reasoning by which the Fact Finder
arrived at the findings. The findings should be clear and concise. In
determining recommendations, the Fact Finder must make a considered
judgment based on sustained reasons and specifications. If one or more
of a series of reasons or specifications are not sustained, the relief
requested is not automatically denied, but the recommendation must be
based on the relative importance of those reasons sustained to the
circumstances of the case.

C. Appendix 1 is provided as guidance for preparing a Fact FinderFs
report.

2-14. Fact Finder File to Grievant and Initial Grievance Officer for
Review and Comment.

A. The Fact Finder shall complete fact-finding and write a draft report
within twenty-one (21) calendar days from the date of receipt of the
grievance file, unless the Final Grievance Officer approves an
extension.

B. On completion of the fact-finding inquiry process, the Fact Finder
shall make the grievance file and the written draft report available for
seven (7) calendar days to the grievant, grievantFs representative, and
Initial Grievance Officer for review and comment. Any comments received
shall be included in the grievance file.

C. The grievant, grievantFs representative, and Initial Grievance
Officer are to provide their comments to the Fact Finder in writing
within seven (7) calendar days of receipt of draft report. Their
comments shall be included in the grievance file.

D. The Fact Finder shall ensure that the grievance file contains all
documents related to the grievance. The documents include, but are not
limited to, notes, records, and copies of witness statements.

2-15. Findings and Recommendations of Fact Finder.

A. After all parties have been given an opportunity to review the
grievance file, the Fact Finder shall prepare a final report and shall
submit that report along with the grievance file to the Initial
Grievance Officer within fourteen (14) calendar days.

B.

The Fact Finder shall furnish a copy of the report to all appropriately
interested parties including the Director, Labor and Employee Relations
Division, in Headquarters, or the servicing Human Resources Division in
the Field.

2-16. Initial Grievance Decision.

A. Upon receiving the written report of findings and recommendations, if
any, and the grievance file from the Fact Finder, the Initial Grievance
Officer shall review the report and issue the decision on the grievance
within fourteen (14) calendar days.

B. If the Initial Grievance Officer determines that the Fact FinderFs
recommendations are unacceptable and should be rejected, he/she must
obtain the concurrence of a management official at a higher level than
the Formal Grievance Officer.

C. The Initial Grievance OfficerFs Report of Disposition shall describe,
at a minimum, the following:

1\. A statement of the issue(s) being grieved and the requested
remedies;

2\. The consideration given it;

3\. Identification of any proposed settlement offers and their
disposition;

4\. Report of information collected relevant to the grievance with
applicable findings or conclusions;

5\. Actions taken to achieve a solution to the Initial Grievance and
results;

6\. A clear decision which addresses the basis for the decision; and

7\. The grievantFs right to file a Final Grievance within seven (7)
calendar days and identify the Final Grievance Officer.

D. The decision must receive concurrence by the servicing Human
Resources office before it is issued.

2-17. Distribution of Initial Decision. Copies of the decision on an
Initial Grievance shall be transmitted by the Initial Grievance Officer
to the following persons:

A. The grievant (and representative, if any);

B. The management representative, if any; and

C. The grievantFs servicing Human Resources office.

2-18. Untimely Response. The grievant may advance the grievance to the
Final Grievance stage if the Initial Grievance Officer either fails to
issue a decision within twenty-one (21) calendar days of receipt of the
Initial Grievance or fails to inform the grievant of a delayed decision
(1-12.F.).

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