SH 1100 PR-41
1st ed. 3/10/93M
CHAPTER 771
EMPLOYEE GRIEVANCES

1. GENERAL

This chapter establishes a process for the timely and equitable consideration of those matters of employee concern defined below. It applies to all employees with civil service appointments in the Smithsonian Institution except those employees included in a recognized bargaining unit for which there is a separate negotiated grievance procedure covering the matter at issue.

a. Definitions

1. Grievance (except as otherwise provided in paragraph "c" of this section, "Matters excluded") 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 relating to employment matters subject to the control of the SI.
2. Personal relief means a specific remedy sought by and directly benefiting the grievant(s), and may not include a request for disciplinary or other action directly affecting another employee.
3. Deciding Official means the management official who considers, and has the authority to resolve, the formal grievance and renders a formal written decision. The official must be at a higher level than the official who decided the informal grievance (unless the informal grievance was decided by the Secretary) or any other official directly involved in the matter(s) giving rise to the grievance.

b. Grievable matters.

Civil Service employees may use the procedures of this chapter to obtain a review of the following (to the extent they are not excluded in paragraph "c" of this section):

1. matters of personal concern or dissatisfaction which are related to the employment situation of the employee and are subject to the control of the Smithsonian;
2. allegations of coercion, reprisal, or retaliation;
3. letters of caution, reprimands, or suspensions of fourteen calendar days or less.

c. Matters excluded:

1. any matter or aspect of a grievance which is subject to final administrative review outside the Smithsonian or is subject to statutory appeal procedures under law or the regulations of the Office of Personnel Management, the Merit System Protection Board, the Federal Labor Relations Authority or the Equal Employment Opportunity Commission (e.g., appeals of job classifications, denials of GS employee within-grade increases, etc);
2. the content of published Smithsonian policy;

3. nonselection for promotion from a group of candidates ranked and certified according to proper procedure, or failure to receive a noncompetitive promotion;
4. an action terminating a temporary promotion or appointment, including expiration of such a promotion or appointment;
5. nonadoption of a suggestion or failure to grant an award, including a performance based cash award, quality step award, or other cash award;
6. payment of, or failure to pay, a recruitment bonus, relocation bonus, or retention bonus;
7. a preliminary warning or notice of proposed adverse action;
8. a disagreement over the interpretation or application of a labor agreement;
9. the amount of a merit increase or the lack of a merit increase under the Performance Management and Recognition System;
10. the critical element(s) and performance standard(s) of an employee's position (the rating of record may be grieved);
11. a grievance that has been or is being processed under another grievance procedure;
12. a complaint, petition, or proposal by a labor organization on its own behalf;
13. a complaint, grievance, or other administrative challenge, which, if favorably acted upon, would not give the grievant personal relief;
14. a charge of discrimination because of race, color, religion, sex, age, national origin, or handicapping condition (such charges must be processed under the Smithsonian's equal employment opportunity complaint procedures);
15. a matter in which the employee files a complaint challenge under another review, reconsideration, or dispute resolution process within the Smithsonian;

16. termination during an employee's probationary period following initial appointment; and
17. return of an employee from an initial appointment as a supervisor or manager to a nonsupervisory or nonmanagerial position for failure to satisfactorily complete the required probationary period.

d. Time frames for consideration

The time frames for consideration are defined at each stage under the "Informal" and "Formal" Grievance Procedures outlined in sections 4 and 5 of this chapter. The specified time frames will be followed except:

1. upon mutual agreement to extend the time limits for any individual step(s) in the grievance procedure, or
2. when a deadline date within the time frame falls on a regular nonworkday of the employee, examiner, or official considering the grievance.

e. Cancelling a grievance

1. An employee may cancel a grievance at any stage of its consideration. Once cancelled, however, a grievance may be reactivated only during the original time limit (20 calendar days) for initiation of the grievance. The cancellation should be confirmed in writing, either by the employee or by the supervisor considering the grievance.
2. A grievance shall be cancelled upon separation of an individual from employment with the Smithsonian unless the adjustment sought by the employee can be granted after separation. Likewise, the death of the employee terminates a grievance unless the adjustment sought involves a matter of pay or benefit to the deceased's beneficiaries.
3. If an employee has filed, or later files, a formal appeal, complaint, or other challenge on the same matter under lc(l) or lc(15) of this chapter, the grievance will be cancelled.
4. The Smithsonian may cancel a grievance if the employee fails to provide sufficient information on the matter(s) being grieved or on the personal relief being sought, fails to proceed with the grievance as set forth in this chapter, or does not seek a remedy providing for personal relief directly benefiting the employee.

2. AUTHORITIES AND RESPONSIBILITIES

a. References All grievance resolutions shall be conducted in conformance with the procedures outlined in this handbook chapter.

b. Responsibilities

• hear and decide grievances, testify at grievance hearings as required, and provide all appropriate information requested by duly designated grievance officials;
• consult with the Office of Human Resources (OHR) upon the employee's filing of an informal or formal grievance;
• prepare grievance files of all materials to be forwarded to OHR at the conclusion of the grievance process;
• carry out these responsibilities with respect to civil service employees, regardless of whether the management official is a civil service or Trust Fund employee; and
• act in a fair and equitable manner with respect to the matter(s) at issue.

The OHR will:

• coordinate grievance actions;
• maintain all official records relating to grievances;
• provide advice to management officials and to employees regarding grievances, including the interpretation of regulations contained in this chapter; and
• represent the Institution during grievance hearings when appropriate.

3. EMPLOYEE RIGHTS

In preparing and presenting a grievance, an employee shall:

• be assured freedom from restraint, interference, coercion, discrimination, or reprisal;
• have the right to be accompanied, represented, and advised by not more than one representative. (A representative must be designated in writing to management; likewise, a change in representation must also be made known to management in writing.);
• have the right to consultation and advice from OHR and the office of Equal Employment and Minority Affairs (OEEMA) concerning the specific rights and procedures involved; and
• be granted a reasonable amount of official time to prepare and present the grievance if in a duty status.

b. Rights of a representative

When an employee designates another Smithsonian employee as a representative, the representative shall also be assured of the right of freedom from restraint as well as a reasonable amount of official time as specified under Section 3d, "Official time."

c. Availability of a representative

The representative must be willing and available to represent the grievant. The Institution may disallow use as a representative of any individual whose activities as a representative would cause a conflict of interest or position, or of an employee whose release from official duties would cause unreasonable costs to the Institution or whose work assignments involve priorities which cannot be reasonably deferred. The grievant will be notified in writing in the event that a designated representative is disallowed.

d.Official time

An employee and his/her representative who are in active duty status are each entitled to a reasonable amount of official time to prepare and present a grievance. The amount of official time granted, however, shall not normally exceed eight (8) hours total.

The Smithsonian does not assume any liability for expenses incurred by employees or their representatives in the exercise of their rights described in this chapter. Further, as the right to make a presentation does not necessarily imply face-to-face communication, employees and their representatives are not entitled to travel or per diem.

4. INFORMAL GRIEVANCE PROCEDURE

The first step of the grievance procedure is intended to encourage the grievant and the appropriate management official (normally the supervisor) to informally discuss and attempt to resolve the matters causing the grievance. This informal discussion is normally required before proceeding to the level of a formal grievance.

a. Submitting the informal grievance: 20 calendar days.

1. Time limits. A grievance concerning a continuing practice or condition may be submitted at any time. If the grievance concerns a particular act or occurrence, the initial submission must be made not more than 20 calendar days after the date of the occurrence or date the employee becomes aware of the occurrence. The official who considers the grievance at the informal stage may extend the time limit if the employee was prevented from submitting the grievance due to circumstances beyond his/her control.<
2. Procedure. To initiate the informal grievance, the employee must:

in an oral discussion with, or in writing to, his/her immediate supervisor, specify the following:

• all matters causing the dissatisfaction,
• the personal relief sought, and
• that the discussion is the first step in the Smithsonian grievance procedure; and
• provide in writing the name of his/her official representative, if any.

Informal grievance consideration: 10 calendar days.

(1) Responsibility for considering grievances. The employee's informal grievance shall be considered initially by the employee's immediate supervisor or other appropriate management official.

(a) If the grievance involves a matter which is under the control of the supervisor, he or she will proceed to process the informal grievance in the manner set forth in paragraphs 2-4 below.

(b) If the grievance involves a specific action or matter which has been issued or acted upon by a higher level supervisor, the supervisor will immediately refer the grievance to that official for processing at the informal stage. Grievances concerning performance appraisals will normally be referred to the reviewing official of the appraisal for informal processing.

(c) If the grievance involves another matter which can only be resolved at a higher level within the office or bureau, the immediate supervisor will refer the grievance to the appropriate official for informal stage processing. If the grievance involves a matter which must be resolved outside the employee's bureau, then the grievance should be referred to the organization or office which can give the grievance appropriate consideration. (If in doubt, the supervisor may request assistance from OHR in identifying the appropriate office.)

(d) After a grievance has been filed, the official in receipt of the grievance must notify the Human Resources Specialist assigned to his/her organization that the grievance has been received and the name of any other official to whom it was referred.

(2) Acceptance/rejection of the informal grievance. The immediate supervisor or other official who processes the grievance must hear the employee and determine whether the grievance is a proper one for consideration under these procedures. If not, the employee should be so notified. Even if the grievance is rejected on procedural grounds, the management official may elect to review the issues raised in the informal grievance to consider appropriate action.

(3) Consideration and decision. If the grievance is subject to consideration, the management official then confers with the employee, reviews the merits of the case and makes any appropriate efforts to resolve the grievance. The employee shall receive an oral or written reply normally no later than 10 calendar days after receipt of the grievance by the appropriate management official capable of resolving the grievance, unless the parties have agreed to an extension. The reply will:

(a) describe in writing, if the grievance was written, any proposed resolution and/or adjustment, or set forth the reasons why an adjustment cannot be made, and

(b) provide the name, location, and phone number of the deciding official to whom the employee may submit a formal grievance if dissatisfied with the informal grievance adjustment; and remind the employee of the 10 day time limit for filing a formal grievance. The deciding official for a formal grievance must be at a higher organizational level than the individual handling the grievance at the informal stage (normally the next higher level supervisor).

(4) Informal grievance record. After replying to the grievant, the management official prepares a memorandum for the record, describing the grievance, any proposed resolutions and/or adjustment(s) and discussions held with the employee (including the date of the official's oral or written reply).

5. FORMAL GRIEVANCE PROCEDURE

a. Submitting the formal grievance: 10 calendar days.

(1) Time limits. A formal grievance must be received by an appropriate official no more than 10 calendar days after the employee receives the decision on the informal grievance. If no reply to the informal grievance is received, the employee may submit the formal grievance within 10 calendar days from the date the reply should have been received. This time limit may be extended by the deciding official if the employee is prevented from submitting the grievance by circumstances beyond his/her control.

(2) Form and content. The formal grievance must be in writing and be given or sent to the deciding official named in the informal decision, or designated by OHR if no informal decision is received. Only those matters which were considered under the informal procedure may be considered under the formal procedure.

The formal grievance should be identified as such and provide sufficient detail to clearly identify the basis for the grievance, the personal relief or adjustment sought, why the results of the informal procedure were not satisfactory, and the name and address of the employee's representative, if any.

b. Formal grievance consideration: 10 calendar days.

(1) Establishment of a grievance file. The deciding official establishes and maintains an official grievance file which contains all documents relevant to the grievance, including the memorandum for the record prepared at the informal stage of the grievance. Upon request, the file must be made available to the grievant and/or the representative for review.

(2) Procedural determinations. The deciding official must determine if the grievance is timely, is covered by the grievance procedure, and has been through the informal procedure. If the grievance does not meet any of these criteria, the deciding official advises the employee in writing that the grievance is rejected or redirected and explains why.

In examining the issues and considering the merits of the case, the deciding official may elect to use the services of a fact finder or may choose to consider the facts and merits personally.

(3) Consideration of the grievance: 10 calendar days. If the services of a fact finder are not used, the deciding official may wish to meet with the grievant (and representative, if one is designated), and other individuals having relevant information, in addition to considering the written grievance. The written decision should be delivered to the grievant within 10 calendar days of receipt of the grievance or an extension agreed to among the parties (see section 7, "Final Grievance Decision", paras. b and c).

(4) Appointment of a fact finder: 10 calendar days. The deciding official may determine that the services of a fact finder are necessary and request the OHR to appoint one. The appointment will be made within 10 calendar days of receipt of the formal grievance (i.e., receipt by the deciding official) and the grievant will be so notified.

Costs of the fact finder will be borne by the grievant's organizational unit.

6. FACT FINDING

a. Fact Finder. Fact-finding may be conducted only by a fact finder who is experienced in grievance examination or similar activities. A fact finder may be a Smithsonian employee or a non-Smithsonian employee. However, a fact finder must be an individual who is not, directly or indirectly, under the jurisdiction of the deciding official.

A grievant may object to the appointment of a particular fact finder if the grievant believes that individual will not be fair or objective in conducting the inquiry. An objection must be submitted in writing to the Director, OHR, within 5 days of being notified of the name of the proposed fact finder. The Director, OHR, will advise the grievant in writing whether or not the objection is accepted and, if so, the name of the new fact finder.

b. Time limits. Generally, the fact finder shall be allowed a maximum of 45 calendar days to conduct the grievance inquiry and prepare a report.

c. Conducting the inquiry.

(1) Scope of the inquiry. The fact finder will restrict the inquiry to the issues raised in the formal grievance. The fact finder will determine the methods to be used in the inquiry and ensure that they are appropriate to the grievance. These methods may consist of securing documentary evidence, personal interviews, group meetings, and/or a hearing.

(2) Availability of information. A fact finder shall be entitled to review any documentary evidence from Smithsonian files which is specifically identified by a party to a grievance or by pertinent testimony of a witness. The availability of such documents for review shall be subject to Smithsonian policies regarding the Freedom of Information Act and the Privacy Act. The fact finder shall also be responsible for maintaining the official grievance file established by the deciding official, adding to it all relevant documents generated during the inquiry.

(3) Hearing. A grievant does not have the right to a hearing. A hearing will be held only when, in the fact finder's opinion, it is absolutely necessary to obtain facts which cannot be obtained by other means. A hearing is part of the fact finding process, not a decision making or adjudicating process.

The fact finder will follow the guidelines in OPM's Federal Personnel Manual Chapter 771 while conducting the hearing, deciding who shall testify, whether to prepare a verbatim transcript or a summary of the testimony, the scope of the issues to be considered, and whether or not post hearing briefs will be permitted.

(4) Fact finder's report. When all aspects of the inquiry are completed, the fact finder will forward a written report with recommendations, along with the grievance files, to the deciding official who shall take one of the actions specified in Section 7a, below. The grievant and the employee's representative, if any, shall receive a copy of the fact finder's report.

7. FINAL GRIEVANCE DECISION. a. Action on the fact finder's report: 10 calendar days.

(1) Unless the deciding official is the Secretary, Under Secretary, or an Assistant Secretary, that official shall review the report and take one of the following actions within 10 calendar days of receipt of the fact finder's report:

(a) accept the fact finder's recommendations and issue the decision on the grievance,

(b) grant an adjustment which is acceptable to the employee without regard to the fact finder's recommendations, and issue the decision on the grievance, or

(c) transmit the entire grievance file to a reviewing official at a higher level with a memorandum recommending a decision contrary to the fact finder's recommendations and explaining why those findings are unacceptable. A copy of the memorandum will be sent to the employee and to the employee's representative. The reviewing official shall then consider the fact finder's report with the grievance file and render a final decision, which may accept or reject any or all of the fact finder's recommendations.

b. Action without fact-finding: 10 calendar days. When no fact finder is used, the deciding official shall issue a final written decision which grants full or partial relief to the grievant, or which denies the grievance.

c. Notice of final decision. The final decision of the deciding official shall be in writing and sent to the employee. A copy of the decision shall be sent to the representative, and another copy will be placed in the grievance file. The entire grievance file shall then be forwarded to OHR. The final decision is not subject to further review.

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