ADMINISTRATIVE GRIEVANCE PROCEDURE
SECTION 1. PURPOSE.
.01 This Order prescribes the system under which an employee, or a group of employees acting as individuals, may request personal relief in a matter of concern or dissatisfaction regarding their employment. The personal relief sought by the employee must be within the authority and control of management officials of the Department of Commerce (the Department).
.02 This revision clarifies that an employee may not use the informal grievance process to contest a performance payout, rating, or score. The employee must use the “Request for Reconsideration” procedures in the Performance Management System Handbook, the Operating Manual for the Commerce Alternative Personnel System (CAPS), or the Operating Manual for the Alternative Personnel Management System (APMS), as applicable.
SECTION 2. DEFINITIONS.
In this Order:
.01 Appropriate official generally means the supervisor or manager at the lowest organizational level who has responsibility for the matter that is the subject of the grievance.
.02 Deciding official means a supervisor or manager at least one organizational level above the official who made the decision regarding the informal grievance, request for reconsideration or disciplinary action.
.03 Bargaining unit employee means an employee included in a bargaining unit for which a labor organization holds exclusive recognition under title 5, United States Code (U.S.C.) Chapter 71, as certified by the Federal Labor Relations Authority.
.04 Day means a calendar day.
.05 Employee has the meaning given in 5 U.S.C._2105 and includes former employees of the Department if the requested relief involves compensatory matters within the control of the Department management at the time of employment.
.06 Grievance means a request by an employee, or by a group of employees acting as individuals, for personal relief in a matter of concern or dissatisfaction regarding their employment. The personal relief sought by the employee must be within the authority and control of management officials of the Department.
.07 Grievance file means an official file that contains all documents pertinent to the understanding of the grievance issues, and documenting any resolution/decisions including, but not limited to, a copy of the grievance and any amendments filed, copies of statements of witnesses, copies of any statements executed by the grievant(s), settlement agreements, and the decision(s) on the grievance.
.08 Organizational level means an echelon within the Department that is distinct from other levels and represented in the organizational chart of the Department as a separate entity. For purposes of this Order, a supervisor or manager’s deputy is not considered to be at the same organizational level.
.09 Party means the grievant(s), the grievant’s representative(s), and management officials involved in the grievance.
.10 Personal relief means a specific remedy that directly benefits the grievant regarding the matter(s) giving rise to the grievance, is within the authority and control of management officials of the Department, and complies with controlling laws, rules, and regulations. A request for any action affecting another employee, such as reassignment, discipline, or requiring a specific action from another employee such as an apology or change in behavior is not personal relief under this Order.
.11 Principal Human Resources Manager (PHRM) or Servicing Human Resources Manager (SHRM) means the head of a Servicing Human Resources Office.
.12 Servicing Human Resources Office (SHRO) means the human resources office that services an employee’s organizational component.
.13 Summary Performance Rating means a written record of the evaluation of the employee’s performance for each critical element/result/objective, with a final documented rating and with the appropriate management approvals. This is often referred to as a “rating of record.”
SECTION 3. COVERAGE.
.01 Matters not covered. This Order applies to any matter regarding an employee’s concern or dissatisfaction with his/her employment that is subject to the control of management officials within the Department, including any matter in which an employee alleges coercion, reprisal, harassment, or retaliation, with the following exceptions:
a. A decision that is appealable to the Merit Systems Protection Board (MSPB) (such as a suspension of 15 days or more or a removal) or is subject to final administrative review by the Office of Personnel Management (OPM); or the Equal Employment Opportunity Commission (EEOC);
b. Any proposal notice for which a decision notice would effect an action that would then be subject to review by MSPB, EEOC, or OPM as described above in Section 3.01a. of this Order;
c. The content of, or an exclusion listed in, a published policy, procedure, or regulation of the Department;
d. Claims of sexual orientation discrimination processed under DAO 215-11, “Complaint Process for Sexual Orientation Discrimination”;
e. Nonselection for a position from a group of properly ranked and certified candidates or the failure to receive a noncompetitive promotion;
f. Termination of a temporary promotion within a maximum period of two years, when returning the employee to the position from which promoted, or placing the employee in another position provided that it is not at a lower grade or pay than the position from which temporarily promoted;
g. Termination of a term promotion at the completion of a project or specified period or at the end of a rotational assignment in excess of 2 years, but not more than 5 years, that returns the employee to the position from which promoted or places the employee in another position provided that is not at a lower grade or pay than the position from which promoted in accordance with Title 5, Code of Federal Regulations (CFR) Part 335;
h. Granting or failure to grant a performance award under 5 U.S.C._5384, a quality step increase under 5 U.S.C._5336, a bonus, other monetary or honor award, or adopting or failing to adopt an employee’s suggestion or invention;
i. The substance of critical elements/results/objectives and performance standards/indicators in an employee’s performance plan;
j. The return of an employee from an initial appointment to a supervisory or managerial position to a nonsupervisory or nonmanagerial position for failure to satisfactorily complete the required probationary period;
k. Any other separation action not specifically excluded in this Section;
l. Any matter the substance of which has been the subject of a previous grievance or a previous or current complaint of discrimination submitted by the same employee, or the subject of a grievance decision with respect to the same employee;
m. A reassignment of a Senior Executive Service (SES) appointee following the appointee’s receipt of an unsatisfactory performance rating under 5 U.S.C._4314;
n. The annual summary or narrative performance rating of an SES appointee under 5 U.S.C._4312;
o. The termination under 5 CFR Part 359, subpart D of an SES career appointee during probation for unsatisfactory performance;
p. The return of an SES career appointee to the General Schedule or other pay schedule during the one-year probationary period, or for less than fully successful executive performance under 5 U.S.C._3592;
q. The termination of a probationary employee for unsatisfactory performance or misconduct;
r. Any action taken in accordance with the terms of a formal agreement, voluntarily entered into by the employee;
s. Granting or failure to grant a retention allowance/incentive, or a reduction in the amount of a previously granted retention allowance/incentive;
t. The classification of a position description and decisions excluded under 5 CFR_511.607;
u. Receipt or nonreceipt of any benefit conferred under a Governmentwide benefits program such as the Federal Employees Health Benefits Program, Workers’ Compensation, retirement benefits, etc.;
v. Any matter covered by a negotiated grievance procedure; and
w. Any decision made on matters covered in this Order by Sections 4.01 and 4.04, “Roles and Responsibilities”; Section 5.06, “Grievance Rights”; Section 9, “Grievance Rejection Procedures”; and Section 10, “Abuse of Procedure.”
.02 Individuals not covered. This Order applies to all Departmental employees, except the following:
a. Employees in a bargaining unit, for those matters that are not specifically excluded by the negotiated grievance procedure of that bargaining unit under 5 U.S.C._7121;
b. Noncitizens appointed under regulations regarding appointments to overseas positions;
c. Aliens appointed under 22 U.S.C._1471;
d. Members of the Foreign Service of the United States covered under the Foreign Service grievance system as described in Chapter 11 of the Foreign Service Act of 1980, as amended (P.L. 96-465);
e. Applicants who are not currently employed by the Department;
f. Individuals who are not employees of the Department at the time of the occurrence of the matter causing the concern or dissatisfaction;
g. Employees who are members of a class of employees specifically excluded by OPM; and
h. Employees whose rights to file a grievance under this Order have been abridged by the Deputy Chief Human Capital Officer and Director for Human Resources Management (Director) in accordance with the provisions of Section 10.
SECTION 4. ROLES AND RESPONSIBILITIES.
.01 The Deputy Chief Human Capital Officer and Director for Human Resources Management, or his/her designee, is responsible for establishing, amending, granting exceptions to and evaluating the Department’s grievance procedure; providing guidance to SHROs as requested; consulting on the appropriateness of remedies; approving settlement content that would set a Departmental precedent; and deciding whether an employee’s grievance rights should be abridged under Section 10 of this Order.
.02 The Director for Civil Rights, or his/her designee, is responsible for informing the Director and SHRMs, as necessary, when an employee files a discrimination complaint. If the employee has filed both a grievance and a discrimination complaint on the same matter, he/she must make a binding election in accordance with Section 6 of this Order, to continue processing the matter under one, but not both, avenue of redress.
.03 The Chief, Employment and Labor Law Division, Office of General Counsel, or his/her designee, is responsible for providing guidance, as requested, on matters covered by this Order, and for reviewing all settlement agreements for legal sufficiency and advising management accordingly.
.04 Principal and Servicing Human Resources Managers, or designees, are responsible for implementing the procedures contained in this Order within their serviced population; receiving and timely processing employee grievances; making decisions regarding the acceptability of an employee’s choice of representation in accordance with Section 5 of this Order; and designating appropriate deciding officials (in consultation with senior management of the employee’s organization). They provide advice and guidance on the acceptance or rejection of formal grievances or specific requests for personal relief; and on whether a grievance and EEO complaint concern the same matter, in accordance with Section 6 of this Order. They also ensure compliance with this Order, Departmental policy, and applicable law, rules, and regulations (including appropriate consultation with the Office of General Counsel (OGC)). They authorize the use of Alternative Dispute Resolution (ADR); provide technical review of all grievance decisions or settlement documents; and make this Order available to employees.
.05 Secretarial Officers and Heads of Operating Units are responsible for ensuring that management officials within their respective organizations fulfill their duties and responsibilities under this Order. They consult with the PHRMs and SHRMs on issues related to the grievance and its resolution, as necessary and appropriate, and provide a work environment for all employees that is free from discrimination and improper management actions that can reasonably be expected to result in employee grievances.
.06 Managers and supervisors are responsible for fully participating in the procedures and processes described by this Order, including but not limited to: meeting with employees to informally resolve grievances; providing information to the deciding official about the circumstances giving rise to the grievance; serving as the deciding official on grievances, when designated; voluntarily participating in ADR, as appropriate, when a grievance has been filed; maintaining all related records of decisions/actions giving rise to the grievance and providing them to the deciding official or servicing human resources representative, as requested; or taking other appropriate actions as may be required to process the grievance. In addition, managers and supervisors are responsible for communicating with employees on the day-to-day issues and decisions that may arise in the workplace in order to provide the employees with greater understanding of the decision-making process, and thus diminish the number of matters that may give rise to the filing of grievances.
.07 Employees are responsible for complying with the policy and procedures outlined in this Order when filing a grievance; electing a single avenue of redress in lieu of filing in multiple forums, such as both a discrimination complaint and a grievance, for the same matter of concern; providing all relevant information at the time the grievance is filed; and cooperating in any resulting inquiry related to the matter grieved. Employees are also responsible for bearing any expense associated with the preparation and presentation of a grievance.
SECTION 5. GRIEVANCE RIGHTS.
.01 Right to file a grievance. An employee is entitled to pursue resolution of a grievance under the system established by and for matters covered under this Order. The appropriate official and SHRO must accept and process a properly presented grievance in accordance with the provisions of this Order unless the employee’s right to file grievances has been abridged (see Section 10 of this Order.)
.02 Right to request alternative dispute resolution (ADR). An employee filing a grievance at the informal or formal stage(s) and the supervisor or manager who serves as the deciding official at either stage have the right to separately request that the SHRO approve use of an ADR process. Participation on the part of both parties is voluntary. If an employee and/or the supervisor or manager make(s) such a request, the SHRO shall consult both parties, seek their agreement to use an ADR process, and, if appropriate, authorize such a process in accordance with the applicable operating unit’s ADR policy or Section 8 of this Order.
.03 Right to information. An employee pursuing a grievance is entitled to communicate with the SHRO to obtain information about the grievance process and to get clarification about any provision of this Order. An employee filing a grievance also has the right to review all regulatory material regarding the grievance process and/or the matter being grieved and to review the grievance file.
.04 Right to representation. An employee has the right to a representative of his/her own choosing. This right may be exercised at any time during the grievance process. The employee also has the right to change his/her representative during the processing of the grievance. The grievant must notify the official handling the grievance (usually the employee’s immediate supervisor) at the informal stage, in writing, of the name and contact information for his/her representative, and must likewise notify the SHRO at the formal grievance stage. A grievant can have only one representative at a time.
a. The grievant may select another Departmental employee as his/her representative; however, the selection may be rejected if service by the selectee would result in conflict of position or interest. Conflict of position refers to an incompatibility between the representation function and the selectee’s official duties. For example, members of the SHRO, the OGC staff, employees of the Department’s Office of Civil Rights, and the operating unit’s Equal Employment Opportunity (EEO) Office (including collateral duty EEO counselors) may not serve as employee representatives in the grievance process. Conflict of interest includes, but is not limited to, representation by a subordinate of the supervisor or other management official or an official of a labor organization that represents or has pending a petition to represent employees under the labor official’s influence. Decisions regarding the acceptability of the employee’s choice of representative are made by the SHRM, in consultation with OGC, as appropriate, and may not be further delegated.
b. The employee’s representative, once selected and approved, has the right to consult with and review information from the same individuals listed as available to the grievant.
.05 Right to use duty time. An employee, if otherwise in an active duty status, is entitled to use a reasonable amount of duty time and official resources (with approval of his/her supervisor) to present a grievance. The employee’s representative, if an employee of the Department who is otherwise in an active duty status, is entitled to use an equally reasonable amount of duty time to present the grievance. Time for presentation of the grievance shall not include time for preparation of the written or oral presentation of the grievance, but shall include time spent in an ADR process authorized by the SHRO. The amounts of time allowed are determined solely by management, and questions concerning duty time should be referred to the SHRO. Arrangements for the use of official time and official resources must be coordinated with, and approved by, the grievant’s and representative’s supervisors prior to use.
.06 Right to a written decision. The appropriate official and deciding official must provide a written decision to the grievant on any grievance accepted for processing. The written decision must include any agreements reached by the parties including any follow-up action required of either party. A written resolution agreement entered into and signed by the parties and appropriate concurring officials, as identified in Section 8.04 of this Order, will represent management’s written decision with respect to the grievance it resolves.
.07 Right to confidentiality. All persons involved in the processing or adjustment of a grievance must protect the confidentiality of all related communications with the employee and others involved in the grievance and the right of those individuals to privacy. Anyone with access to information related to the grievance must not disclose that information except to those who have an official need to know. Individuals granted access to grievance information should be advised of the requirements of this paragraph.
.08 Right to freedom from interference or reprisal. Any person involved in the processing or adjustment of a grievance, including the grievant(s), management officials, and their respective representatives and witnesses must not be subjected to restraint, interference, coercion, discrimination, or reprisal by any employee of the Department in connection with the exercise of rights and responsibilities under this Order.
.09 Right to withdraw a grievance. An employee may withdraw a grievance at any step in the process, but must do so in writing.
SECTION 6. ELECTION BETWEEN THE GRIEVANCE AND EEO PROCESSES.
.02 If an employee files a grievance on a subject and, before a final decision is made, files an EEO complaint under DAO 215-9 or DAO 215-11 on the same subject, the grievance will not be further processed because the filing of the EEO complaint is a binding election of the EEO complaint process.
SECTION 7. FILING PROCEDURES.
The following procedures will be followed for all grievances filed within the Department.
.01 Informal grievances.
a. Covered employees must file a written informal grievance on covered matters with the appropriate official prior to filing a formal grievance, except:
1. Where an employee has followed the Request for Reconsideration procedures prescribed in
the Performance Management System Handbook, the Commerce Alternative Personnel System (CAPS) Operating Manual, or the Alternative Personnel Management System (APMS) Operating Manual, as applicable; or
2. Where the matter involved a disciplinary action for which the employee received an advance notice providing for the right to reply.
b. The appropriate official is the supervisor or manager at the lowest organizational level who
has responsibility for the matter that is the subject of the grievance. Normally, this is the employee’s immediate supervisor. If the grievant is unsure who the appropriate official is, he/she may consult with the SHRO.
c. The individual must present sufficient information upon which the appropriate official may make an informed decision on whether to grant all, some, or none of the personal relief requested. At a minimum, the informal grievance must contain: a description of the specific matter(s) giving rise to the grievance; the date of the event or decision that prompted the individual to grieve; any supporting information, such as documents, work products, witnesses’ names and/or statements; and a statement of the personal relief requested.
d. Informal grievances must be presented within 15 days of the event or decision giving rise to the grievance or within 15 days of the date the employee first became aware of or should have become aware of the act or occurrence. This time limit may be extended in writing only for good cause shown by the employee.
e. Upon receipt of an informal grievance, the appropriate official should consult with SHRO and OGC, as necessary, for the proper assistance as provided for in Section 4 of this Order.
f. If the employee presents an informal oral response along with the written informal grievance, the appropriate official is responsible for summarizing the employee’s presentation in writing, including the date of presentation, and for obtaining the grievant’s written concurrence that the written summary is a reasonably accurate statement of the grievance. The official must do this prior to attempting to resolve the grievance.
g. A written record of the appropriate official’s decision must be provided to the employee. This document may be in the form of a memorandum for the record and must contain the following information:
1. The decision with respect to each matter presented in the grievance, the reason(s) for the decision, and any relief granted;
2. References to all laws, regulations, or policies relied upon in reaching the decision;
3. A statement of the grievant’s right to file under the formal procedures provided in this Order, if still dissatisfied;
4. The time limit within which the formal grievance must be filed (10 days from the receipt of the notice of decision on the informal grievance);
5. The name and address/location of the SHRO to which a formal grievance must be submitted; and
6. Either a statement of or reference to the requirements for formal grievance submission, or the name and location of the person from whom such information may be obtained (e.g., the operating unit’s administrative personnel or the SHRO).
h. The appropriate official should respond to an informal grievance within 15 days of receipt, unless prevented from doing so by absence, unavailability of necessary information, or other matters outside his/her control. Authorized delays are acceptable, but in no case should a decision be rendered more than 30 days after receipt. In the event that a decision is not rendered within 30 days of receipt by the appropriate official, the grievance shall be referred to the SHRO for processing as a formal grievance.
.02 Formal grievances.
a. An employee may file a formal grievance with the SHRO within 10 days of the receipt of a decision on a request for reconsideration of a summary performance rating, the effective date of a disciplinary action (if covered by these procedures, i.e., not appealable to the MSPB and not a proposed disciplinary action), or an informal grievance.
b. For all matters in which the informal procedure (including a request for reconsideration) is mandatory, the grievant may present only the matter(s) and request for personal relief that were provided at the informal stage. If the formal grievance presents matters or requests for relief not covered by the informal grievance, the formal grievance may be rejected by the SHRO under the procedures in Section 9 of this Order.
c. Formal grievances must:
1. Be in writing, and provide sufficient detail concerning the matter(s) being grieved to clearly identify the basis for the grievance;
2. Specify the personal relief requested;
3. Include a copy of the informal grievance, the appropriate official’s decision on the informal grievance, request for reconsideration, or official disciplinary action letter, as applicable, and any supporting documentation such as copies of email, memoranda, etc., relative to the matter(s) presented in the grievance. If an employee alleges he/she filed an informal grievance and the appropriate official did not timely respond, the employee must provide sufficient documentation to demonstrate attempts to satisfy the informal grievance process.
d. The SHRM or his/her designee will review the submission and determine the appropriate action to be taken. The grievance will be accepted if: the grievance is timely submitted; the individual submitting the grievance and the matter(s) presented are covered by this Order; the submission provides sufficient detail to clearly identify the matter(s) presented; the relief requested is personal relief as defined by this Order; and the requirement for informal submission has been satisfied. If any of the above conditions are not met, the formal grievance may be rejected under the procedures provided by this Order.
e. Upon acceptance of a formal grievance, the SHRM or his/her designee will determine, in consultation with OGC, as appropriate, the deciding official for the formal grievance. The appropriate deciding official will normally be at least one organizational level above the official who decided the informal grievance, request for reconsideration, or disciplinary action. The SHRM or his/her designee will present the grievance to the deciding official, normally within 15 days of receipt.
f. The deciding official must give the grievance due consideration and should take the following actions:
1. Thoroughly review the contents of the grievance and associated documentation provided by the employee;
2. Conduct or initiate whatever inquiry he/she deems appropriate. The deciding official may, but is not required to, designate an examiner to conduct the inquiry. If the deciding official designates an examiner, that individual:
(a) Must not have been involved in, or be a subordinate of an official who has been involved in, the matter giving rise to the grievance;
(b) Must not be a subordinate of the official who rendered a decision on the informal grievance; and
(c) Must not be a subordinate of any management official who provided substantial advice and input into the previous decisions on the matter(s) covered by the grievance.
3. Establish a formal grievance file that includes all documentation mentioned in Section 2.07 of this Order.
4. Provide an opportunity for the grievant and/or grievant’s representative to provide comments, in writing, on the contents of the grievance file (including all documents, report of any inquiry, and all witness statements on which the deciding official will rely in making a decision). Include any comments received from the grievant and his/her representative in the grievance file.
5. Consult with the SHRM and/or OGC as appropriate.
6. Issue a written decision, in consultation with the SHRM and OGC, as appropriate, normally within 45 days of the receipt of the grievance that contains the following:
(a) The decision on the matter(s) presented in the grievance and the reasons for each decision;
(b) The personal relief granted, including the specific period within which action(s) will be taken;
(c) The personal relief denied and the reason(s) for denial; and
(d) A statement that this is the final decision of the Department.
SECTION 8. ALTERNATIVE DISPUTE RESOLUTION.
.01 ADR techniques. ADR techniques include, but are not limited to, facilitated discussion of the issues and requested remedies by a designated SHRO representative, formal mediation conducted by a certified mediator from an authorized source, or a negotiated settlement between the employee and the supervisor.
.02 ADR procedures. A grievant may request to use an ADR process in connection with an informal or formal grievance. The request must be submitted in accordance with the operating unit’s ADR policy. If there is not an operating unit policy, the request must be submitted in writing to the SHRM or his/her designee within 14 days after the employee’s informal or formal grievance is filed.
.03 Lack of an ADR policy. When an operating unit does not have an ADR policy, the following provisions also apply:
a. Within five days of his/her receipt of the grievance at the informal or formal grievance stage, a management official may submit a written request to the SHRM or his/her designee to use an ADR process.
b. All requests to use ADR must be made in advance of any final agency decision on the grievance. Within 10 days of receipt of a request, the SHRM or his/her designee shall consult with both parties and issue a written determination advising whether ADR is authorized and, if so, the process that will be used.
c. Participation by the grievant and management official in ADR is voluntary and does not commit either party to agree to any compromise or settlement of the issue(s).
d. The timeframe for a decision by the appropriate official at the informal stage or the deciding official at the formal stage shall be stayed pending the outcome of any ADR process requested and/or agreed to by the parties and authorized by the SHRM or his/her designee. If ADR does not successfully resolve the grievance within 30 days from the date ADR is authorized, the timeframe for a decision as specified by this Order shall commence.
e. If ADR is not successful within 30 days at either, or both, stages of the grievance procedure, the grievance process is no longer stayed. However, settlement attempts may continue.
.04 Resolutions. Any proposed resolutions must be reduced to writing and require the signatures of the parties to the grievance along with technical concurrence of both the SHRM, or his/her designee, and the Chief, Employment and Labor Law Division, OGC. Grievances that address discrimination in the work place must also have the concurrence of the operating unit’s EEO Officer or his/her designee.
SECTION 9. GRIEVANCE REJECTION PROCEDURES.
The SHRO may reject a grievance following the procedures and for the reasons outlined in this Section.
.01 Reasons for rejection. A grievance may be rejected for any one of the following reasons:
a. The grievance is not timely filed;
b. The grievant has had his/her right to file a grievance abridged by formal written decision;
c. The grievant is filing a formal grievance and has not addressed the matter of concern or dissatisfaction through the required informal procedure, or its equivalent (e.g., responds to a proposal of discipline, requests reconsideration of a summary performance rating);
d. The grievance does not contain sufficient information to clearly indicate the matter of concern or dissatisfaction, or other required documentation such as a copy of the decision at the informal grievance level;
e. The relief requested violates law, rule, or regulation, or is not personal to the grievant, as defined by this Order;
f. The matter or individual is excluded from coverage under this Order; or
g. The individual has filed or files a complaint of discrimination on the same matter(s).
.02 Rejection procedures. When a grievance is rejected employees are entitled to a written notice following the procedures below:
a. If the individual filing the grievance is excluded from coverage by this Order, the grievance is untimely, consists wholly of matters excluded from coverage by this Order, or the relief requested is not personal as defined in Section 2 of this Order, the SHRO will not accept the grievance. The grievance will be returned to the individual who filed it with a written explanation of the reason for its rejection. No further action is then taken on the grievance.
b. If the grievance consists in part of a matter(s) not covered by this Order, a portion of the requested relief is not personal, or the grievance does not contain sufficient information, the SHRO will return the grievance to the employee. In returning the grievance, the SHRO will provide a written explanation to the employee as to the specific reasons for the partial rejection, e.g., the matter is not covered, the relief is not personal, or additional information is required. The grievant will have seven days to revise the grievance and resubmit it to the SHRO.
c. If the grievance is otherwise acceptable, but the employee has not satisfied the requirements under informal procedures, the SHRO will return the grievance to the employee with written notification of the requirement to follow the informal procedures. The employee will then have seven days from the receipt of the notice to present the matter(s) as an informal grievance to the appropriate official. The appropriate official must be identified in the notice.
d. If the employee fails to resubmit the revised grievance or present a grievance under informal procedures within the specified timeframe, the grievance will be denied, in writing by the SHRO, with no further action required on the grievance.
SECTION 10. ABUSE OF PROCEDURE.
.01 The right of an employee, or group of employees acting as individuals, to file a grievance may be abridged when it has been determined that the grievance procedure has been abused.
.02 Abuse of the procedure includes, but is not limited to, patterns of actions that demonstrate the individual’s attempt to proceed under this Order is not made in good faith to resolve matters of concern or dissatisfaction regarding the individual’s employment. This may include such actions as: submitting incomplete grievances without presenting evidence that supports the matters being grieved; failing or refusing to provide additional information when requested to do so by an individual responsible for processing/deciding the matter(s) covered by the grievance; filing multiple grievances on the same matter, or matters so similar that the parties involved are the same and no new event giving rise to the grievance is identified; repeatedly submitting grievances that objective evidence shows are frivolous (e.g., there is no remedy available as a matter of law or regulation) or retaliatory in nature; or failing or refusing to cooperate in any inquiry that may result from the grievance.
.03 A SHRM may request that the Director abridge an individual’s right to file a grievance. The request must: be in writing; contain a chronological listing of the individual’s grievance activity (usually not more than two years of history); provide a copy of any grievance(s) stated to be frivolous, repetitive, or retaliatory; and include a recommendation that the instant matter being grieved be dismissed with prejudice (i.e., no further right to raise the same matter).
.04 Upon receipt of the request, the Director will take the following actions:
a. Assign a case manager to review the request, obtain additional information and/or consult with OGC, as appropriate, and draft the final decision.
b. Issue a final written decision to the SHRM, with a copy to the grievant and his/her representative, normally within 30 days of receipt of the SHRM’s written request.
.05 Employees whose rights to file grievances have been abridged in accordance with this Section may file a written petition with the Director to restore these rights after one calendar year and, if denied, annually thereafter. The Director will take the same actions as in Section 10.03 above.
SECTION 11. CANCELLATION OF A GRIEVANCE.
An operating unit should cancel a grievance after consultation with the SHRO:
.01 At the employee’s request;
.02 Upon termination of the employee’s employment with the Department, unless the grievance involves an issue of compensation;
.03 Upon the death of the employee, unless the grievance involves an issue of compensation; or
.04 For failure to prosecute, i.e., if the employee does not furnish required information or duly proceed with the grievance.
SECTION 12. EXCEPTIONS.
Within the limits of administrative discretion permitted to the Department, exceptions to the provisions of this Order may be granted in unusual circumstances by the SHRM if the facts indicate that such an exception would promote the efficiency of the service. Each request for an exception must be submitted in writing and must contain a full statement of the justification for the request. Any exception will be granted in writing, specifying the justification, with copies to all relevant parties.
SECTION 13. EFFECTS ON OTHER ORDERS.
This Order supersedes DAO 202-771, dated November 2, 2007. Administrative grievances initiated before the effective date of this Order must be processed under the superseded Order. This Order also supersedes all previous operating unit or regional directives prescribing administrative grievance systems.
Signed by: Director for Human Resources Management
Approved by: Chief Financial Officer and Assistant Secretary for Administration
Office of Primary Interest: Office for Human Resources Management