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HR Order DOJ1200.1: Part 3. Labor/Employee Relations

Chapter 3-2, Agency Grievance Procedure
(Jul. 12, 2000)


A.   References.

Code of Federal Regulations

5 CFR 771.101

Key terms

Employee

Good Cause

Grievance

Grievance official

Personal relief


B.   Policy.

  1. Responsibilities.

    1. The Assistant Attorney General for Administration shall:

      1. Have overall responsibility for the administration of this chapter.

      2. Have the authority to correct any personnel action taken in the Department, except for those taken in the Office of the Inspector General, which gives rise to a grievance under this chapter.

      3. Make final decisions on grievances when appropriate.

    2. Bureau Heads, or their designated representatives, with respect to employees under their jurisdiction, shall:

      1. Issue implementing instructions in conformance with this chapter.

      2. Ensure that employees are advised of their rights under this chapter.

      3. Ensure that individual cases are processed in as timely a manner as possible.

      4. Make final decisions on grievances when appropriate.

    3. The Assistant Director for Workforce Relations, Human Resources Staff, or designee, subject to the general supervision of the Director, Human Resources Staff, shall:

      1. Provide advice and assistance on the application of this chapter to the Assistant Attorney General for Administration as well as management representatives from Department bureaus.

      2. Assign mediators, when so requested.


    4. Managers and Supervisors shall:

      1. Ensure that grievances are handled in a fair and equitable manner.

      2. Attempt to resolve problems before they reach the grievance stage.


  2. Employees Covered.   This chapter applies to all employees in the Department except employees of the Federal Bureau of Investigation. However, employees covered by a collective bargaining agreement which contains a negotiated grievance procedure are covered by this procedure only with respect to matters that are specifically excluded from the negotiated grievance procedure and within the scope of this procedure.

  3. Matters Covered and Excluded.   This chapter applies to any matter of concern or dissatisfaction relating to the employment of an employee or employees where the personal relief sought is subject to the control of management officials of the Department, except that the following matters are excluded from coverage:

    1. The content of established agency regulations and policy;

    2. A matter which the employee is, or was, entitled to grieve under a negotiated grievance procedure established under 5 U.S.C. 7121, or in which the employee is entitled to file an appeal or other formal challenge for which the following organizations have authority to grant a remedy: The U.S. Merit Systems Protection Board, the Equal Employment Opportunity Commission, the U.S. Office of Personnel Management, or the Federal Labor Relations Authority;

    3. Nonselection for promotion from a group of properly ranked and certified candidates or failure to receive a noncompetitive promotion;

    4. A preliminary warning notice of an action which, if effected, would be covered under the grievance system or excluded by paragraph b. of this section;

    5. The performance evaluation of a Senior Executive Service (SES) appointee under 5 U.S.C., chapter 43, subchapter II; the reassignment of an SES appointee following the appointee's receipt of an unsatisfactory rating under 5 U.S.C. 4314; the return of an SES career appointee to the General Schedule or another pay system during the one-year period of probation or for less than fully successful executive performance under 5 U.S.C. 3592, or for failure to be recertified under 5 U.S.C. 3393a; the conditional recertification of an SES career appointee under 5 U.S.C. 3393a; or the termination of as SES career appointee during probation for unacceptable performance under 5 CFR, Part 359, Subpart D;

    6. A termination of a probationer in accordance with 5 CFR, Part 315, Subpart H; a return of an employee serving supervisory or managerial probation to a nonsupervisory or nonmanagerial position in accordance with 5 CFR, Part 315, Subpart I; or a separation or termination of an employee during a trial period;

    7. The substance of elements and performance standards;

    8. The granting of, failure to grant, or the amount of an award granted under 5 CFR Part 451; the adoption of, or failure to adopt, an employee suggestion or invention under 5 CFR Part 451; the granting of, or failure to grant, an award of the rank of meritorious or distinguished executive to an SES career appointee under 5 U.S.C. 4507, and 5 CFR, Part 451, Subpart B; the granting of, failure to grant, or the amount of a performance award for an SES career appointee under 5 U.S.C. 5384, and 5 CFR, Part 534, Subpart D; or the receipt of or failure to receive an additional step increase under 5 U.S.C. 5336;

    9. A decision to grant, or not to grant, a Senior Executive Service pay rate increase; a decision to grant, or not to grant, a pay rate increase under 5 U.S.C. 5376, and 5 CFR, Part 534, Subpart E; or a decision to grant, or not to grant, a pay adjustment under an administratively determined pay system;

    10. The payment of, failure to pay, or the amount of a recruitment bonus, a relocation bonus, a retention allowance, or a supervisory differential under 5 CFR Part 575; the payment of, failure to pay, or the amount of critical position pay under 5 U.S.C. 5377; or the failure to request or grant an exception to the dual compensation restrictions under 5 CFR Part 553; and,

    11. The termination or expiration of a time-limited excepted appointment, a temporary or term appointment or promotion, or a Senior Executive Service limited emergency or limited term appointment, on the date specified as a condition of employment at the time the appointment or promotion was made; or the termination of a temporary or term promotion at any other time provided the employee was informed in advance of the temporary nature of the promotion and the employee was returned to his or her former position from which temporarily promoted or to a different position of equivalent grade and pay.


  4. Right to Present a Grievance.

    1. Any employee covered by this chapter has the right to present a grievance under the grievance procedure, and the appropriate organization shall accept and process a properly presented grievance in accordance with this chapter.

    2. No representative of management may restrain, interfere with, coerce, discriminate against, or take reprisal against an employee who exercises his or her rights under this chapter.

    3. In presenting a grievance an employee has the right to be accompanied, represented, and advised by a representative of his or her own choosing, except that the bureau may disallow the choice of representative for the following reasons:

      1. Priority Needs of the Service.   If the employee selected as a representative is an employee of the Department, management may disallow the selection if the representative cannot be spared from his or her official duties.

      2. Conflict of Interest.   This refers to an incompatibility between the representation functions and an employee's official duties.


    4. An employee may challenge the decision to disallow his or her choice of a representative by filing a protest with the head of the bureau or his or her designee (or with the Assistant Attorney General for Administration if the head of the bureau has been involved in the decision to disallow the representative). The head of the bureau or his or her designee, or the Assistant Attorney General for Administration (if appropriate), shall render a prompt decision on the matter.


  5. Use of Official Time.   An employee is entitled to a reasonable amount of official time to present a grievance. The employee's representative, if an employee of the Department, is also entitled to a reasonable amount of official time to present the grievance. Time for presentation of the grievance shall include time for review of appropriate records and regulations to the extent they cannot be secured or reviewed during non-duty hours, and for discussions with officials and witnesses of the Department involved with the grievance. The amount of official time allowed is to be determined solely by management but shall not exceed 8 hours each for the employee and his or her representative (excluding any time spent in a mediation session) except in the most unusual circumstances. Arrangements for use of official time should be coordinated with, and approved by, the grievant's and representative's supervisors prior to the use of any official time.

  6. Filing a Grievance.

    1. An employee may:

      1. Present a grievance concerning a particular act or occurrence not later than fifteen (15) days after the date of the act or occurrence; or

      2. Present a grievance concerning a particular act or occurrence not later than fifteen (15) days after the date on which the employee knew, or had reason to know, of the act or occurrence.


    2. Unless the grievance official is otherwise identified, grievances shall be filed by the employee with his or her second-level supervisor and shall be in writing. If the second-level supervisor either lacks authority to provide the requested relief or was directly involved in the act or occurrence being grieved, he or she will refer the grievance to an appropriate grievance official and notify the grievant. The grievance shall:

      1. Contain sufficient detail to clearly identify the basis for the grievance.

      2. Specify the personal relief requested by the grievant.

      3. Identify the grievant's representative, if any.

      4. Be signed by the grievant.


  7. Optional Step--Mediation.    The grievant (or the grievant's representative) and the grievance official may agree to engage in mediation in an attempt to resolve the grievance. If the parties so agree, they may obtain mediation assistance from any appropriate source. If, however, they are unable to identify, or agree upon, a source for mediation assistance, they should contact the Assistant Director for Workforce Relations, Human Resources Staff, to request the appointment of a mediator. A request for mediation must be joint and must be made in writing within 10 days after the date on which the grievance is filed. The mediator will contact the parties and schedule a mediation session at a time and location that is mutually acceptable. The parties will make a good faith effort to resolve the grievance in a reasonable period of time; however, if either party, or the mediator, determines that further mediation is not likely to be productive, that party, or the mediator, may unilaterally terminate the mediation session.

  8. Review by Grievance Official.   If the grievance is not resolved at mediation, or the parties do not engage in mediation, the grievance official shall review the matter and attempt to resolve the grievance. The official may consult with the grievant and/or any other individuals who the grievance official believes will be able to aid in resolution of the grievance, and a written record of any such consultations should be kept in the grievance file. The grievance official will issue a final decision, in writing, normally within 30 days after the date on which the grievance is filed, or the date of the mediation session, whichever is later. If necessary, the grievance official may extend the time limit for issuing a final decision. The grievance official will notify the grievant, in writing, of any such extension and will issue the decision as soon as practicable thereafter. Once a final decision is issued, the grievant has no further right to administrative review.

  9. Level of Grievance Official.   The grievance official should be at a management level consistent with good administration and existing delegations of authority. That level is determined solely by management.

  10. Rejection of a Grievance on Procedural Grounds.   A grievance may be rejected without consideration of the merits if:

    1. It was not filed within the specified time limits and no good cause is present that would permit extending the time limits.

    2. The grievance involves a matter or matters that are excluded from coverage of the grievance procedure.

    3. No specific personal relief is requested.

    4. The remedy requested by the grievant would not directly affect that individual's employment conditions.

    5. The grievance does not contain sufficient detail to identify and clarify the basis for the grievance.


  11. Confinement of Issues and Remedy.   The issue(s) and remedy identified in the initial grievance may not be changed, modified, or altered at later stages of the procedure unless by mutual agreement of the grievant and the grievance official.

  12. Withdrawal of a Grievance. The grievant and/or his or her representative may withdraw a grievance at any time.

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Updated: September 2012
General Information Human Resources
 
Leadership
Terence L. Cook
Director
Contact
Contact Human Resources
(202) 514-4350
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