Part 7 - Human Resources Administration And Management
Chapter 5 - Administrative Grievance System
7-5.1 ADMINISTRATIVE GRIEVANCE SYSTEM
- Purpose. This chapter prescribes policies, procedures and guidelines for the Indian Health Service (IHS) Administrative Grievance System (AGS).
- Authority. The IHS grievance procedures are established under 5 Code of Federal Regulations (CFR) Part 771, which are regulations issued by the Office of Personnel Management (OPM).
- Employee Coverage. Current Civil Service employees of the IHS are covered by the AGS unless they are specifically excluded by this policy. This chapter does not pertain to grievances of bargaining unit employees when the grievances are covered by the grievance procedures negotiated in a labor-management agreement. Employees excluded from this policy include Commissioned Corps Officers, employees on temporary appointment not to exceed 90 days, and Senior Executive Service (SES) appointees.
- Summary of Procedures. The procedures consist of a two stage grievance process. Manual exhibit 7-5-A and Manual Exhibit 7-5-B contain sample formats that can be used in presenting a grievance or issuing a grievance decision. Manual Exhibit 7-5-C shows a flowchart for the AGS.
7-5.2 GENERAL PROVISIONS
- Stage 1 Official. A Stage 1 Official is the first official with authority over the matter grieved. It is the matter grieved as such, rather than the relief sought, may determines the Stage 1 Official, although in some instances the relief sought amy be identical to the matter grieved.
- Stage 2 Official. A Stage 2 Official is normally the second level supervisor, who must be at a higher level than any official involved in the Stage 1 grievance. The highest official with authority to resolve a grievance under the AGS is the Director, IHS. There is no further review beyond IHS.
- Employee. Employee means the grievant, including the grievant's representative. It does not include Officers of the U.S. Public Health Service Commissioned Corps, employees on temporary appointment not to exceed 90 days, SES appointees, or other employees who are excluded from coverage by OPM regulations 5 CFR, Part 771.
- Resolution By Written Agreement. The grievance may be resolved at any time, either by a written decision that grants in its entirety the personal relief requested by the employee or by a written agreement that is signed by the employee and the grievance official and made part of the record.
- Grievance Coverage. See OPM regulations 5 CFR, Part 771. Coverage is extended to the following separation actions only: Removals effected against an employee in Schedule A of the excepted service in tenure group I or II who has completed 1 year of current continuous employment in the same or similar positions, when the employee is not entitled to appeal to the Merit Systems Protection Board (MSPB). Also, coverage is extended to bargaining unit employees whose complaints are not covered by the negotiated grievance procedure applicable to their unit and provided the complaint meets the requirements and provisions of the IHS grievance system.
- Preparation of Response to Grievance. The Stage 1 and Stage 2 Officials must contact the Servicing Personnel Office (SPO) before responding to an employee's grievance so that the SPO can provide assistance.
- Exclusions. The following matters are excluded from coverage under the AGS:
- A request for retroactive promotion or retroactive adjustment of a promotion date (when the conditions required for such retroactivity by applicable decisions of the Comptroller General (C.G.) of the United States are not met). These conditions, generally stated are:
- a specific date for promotion was approved by an appointing official (as distinguished from selecting and recommending officials) but thereafter the promotion was not processed because of administrative oversight or error or
- the promotion was withheld in specific violation of provisions of statute, Executive Order, or labor-management agreement when the provisions have mandatory effect. See C.G. Decisions B-190408 of December 21, 1977; B-183969 of July 2, 1975; B-194122 of June 5, 1979; and 52 C.G. 631 (1973).
- Matters (e.g., acts, failures to act, or failures to meet standards in a critical job element) that are included as the basis (e.g., reasons, charges, or specifications) for a personnel action under Part 752 or Part 432 of OPM Regulations 5 CFR that are appealable to the MSPB.
- The elements and standards of an employee's performance appraisal plan (however, non-adherence to established procedures in arriving at the performance element or standard is grievable); performance progress review; documentation of performance; the methods used to appraise performance during the appraisal period including the methods used to conduct and document a performance progress review, as well as any tentative, preliminary appraisal, but the above can be reviewed when included in a grievance about a summary rating.
- Complaints about the content of a published IHS policy when the complaint is a disagreement with the policy rather than a complaint that the policy was misinterpreted or misapplied. The IHS policy means a policy or regulation issued at any level within the IHS; or a labor-management agreement under 5 United States Code (U.S.C.) Chapter 71, regardless of the level at which the agreement was negotiated. However, grievances about the latter usually fall under a negotiated grievance procedure. Published policy means a policy issued for distribution in writing by an appropriate authority and does not include unwritten practices or customs.
- Complaints about failure to receive a noncompetitive promotion or non-selection for competitive promotion from a group of properly ranked and certified candidates under the merit promotion program. However, when the complaint alleges impropriety in the competitive-ranking, certification, or selection process, the complaint is covered.
- Matters dealing with written and oral warnings, verbal admonishments, or counseling sessions.
- Proposals of disciplinary actions, adverse actions, and preliminary warning notices; however, the final decision may be grieved.
- Complaints dealing with non-adoption of suggestions and matters dealing with granting or failing to grant an incentive or monetary award, or the dollar amount associated with an incentive or monetary award.
- Matters dealing with the termination of a probationary/trial period employee before the end of the probationary period and matters relating to the termination or expiration of a temporary or term appointment.
- Allegations of discrimination, unless a part of an otherwise grievable action.
- Any matter grievable, for which the employee files a complaint, appeal, or challenge under another review procedure.
- Any matter grievable under a negotiated grievance procedure.
- Any classification matter. A current General Schedule (GS) employee may appeal to the IHS or directly to the OPM, but not both at the same time.
A GS employee may also appeal to OPM through the IHS. The IHS must act on the appeal within 60 calendar days or forward it to OPM for action. If the IHS' decision on the appeal is not in favor of the employee, the appeal will automatically be forwarded to OPM.
A Federal Wage System employee must first appeal to the IHS. If the employee is dissatisfied with the decision, the employee may appeal to OPM. The appeal to OPM must be filed within 15 calendar days of the date the employee receives the decision from IHS. The employee must tell OPM which specific part of the IHS' decision the employee disagrees with and why. Additional information is available at: http://www.opm.gov .
- Any matter which is outside the control of IHS management.
- Use of Duty Time. Employees may use a reasonable amount of duty time to prepare and submit a grievance.
- Travel, Per Diem, and Contractual Costs. Most grievances do not require travel. When travel is necessary to meet with a mediator, the IHS will authorize reasonable travel expenses for that purpose. Travel and per diem is not authorized when the grievance can be processed at the aggrieved employee's work site or for an employee's representative, who is not an IHS employee. Payment by the IHS for cost incurred by the employee for representation is not authorized.
- Employee Representation. An employee who files a grievance has a right to representation of his or her own choosing. However, the IHS may disallow a representative if the IHS reasonably believes there may be conflict of interest to have the individual serves as a representative.
- Labor Consultation or Negotiation. All management officials are reminded that, in the implementation of this IHS chapter, they must comply fully with the requirements of The Federal Service Labor-Management Relations Statute (Chapter 71 of Title 5 U.S.C. and related amendments to 5 U.S.C. 5596(b) -- the Back-Pay Act).
- Availability of Procedures. A copy of the AGS will be made available through the IHS WebSite. http://www.ihs.gov .
- Rejection of Grievances
- A grievance may be rejected, either wholly or partially, as appropriate, by the Stage 1 or Stage 2 Official, when the grievance:
- Does not specifically state that it is a grievance in the manner required at Stage 1 or at Stage 2.
- Does not furnish sufficient detail to clearly identify the matter being grieved.
- Does not specify the personal relief sought or the relief sought is not personal to the grievant.
- Consists of a matter or matters that are either not covered by the AGS or are not under the control of the IHS.
- Is made by an employee who is not covered by the AGS.
- Is not timely.
- Rejection Decision. If the grievance is rejected, the decision will cite the relevant section(s) of this chapter and will provide an explanation of why the cited sections are applicable to the rejection.
- Cancellation of Grievance. A grievance may be cancelled, either wholly or partially as appropriate by the employee upon written notification to the appropriate grievance official (the written notification must be made a part of the grievance file). Also, a grievance may be cancelled by the appropriate Stage 1 or Stage 2 grievance official, who will provide one of the following explanations of why the grievance is cancelled:
- At the employee's request.
- Upon termination of the employee's employment with the IHS.
- For failure of the employee to furnish required information at either stage of the grievance.
- For failure of the employee to duly proceed with advancement of the grievance.
- Establishment of Grievance File. The SPO is responsible for the establishment and maintenance of the grievance file in accordance with Federal records management requirements.
7-5.3 ALTERNATIVE DISPUTE RESOLUTION
- Use of Alternative Dispute Resolution. At any time after receiving the grievance, the parties may mutually agree to attempt to resolve the issues giving rise to the grievance using an Alternative Dispute Resolution (ADR) process. The primary ADR method used by the IHS will be mediation. Mediation is an ADR process in which neutral, impartial, and mutually acceptable third-party assists the party(s) in conflict by negotiating an acceptable settlement agreement. A list of mediation sources is available in each SPO.
- The ADR Process. The ADR process is a process which:
- Serves to avoid expensive and adversarial litigation for all parties.
- Is a voluntary, non-adversarial process in which employees feel they can resolve their concerns/issues.
- Provides a safe and open environment where employees can present disputes in a non-threatening forum.
- Allows for the intervention of an impartial third party to assist the parties in identifying the underlying issues and develop resolutions satisfactory to all parties.
- Mutual Agreement. If the parties mutually agree to use the ADR process, any time limits currently pending will be automatically extended for 30 days. The time spent using the ADR process is disregarded in calculating the grievance time frames.
- Confidentiality of the Process. All parties involved in the ADR process will ensure that any case referred to the ADR process remains confidential.
7-5.4 OTHER AVAILABLE RESOURCES
- Use of Other Available Resources. Use of either the AGS or the above-mentioned ADR procedures do not preclude an employee from filing a complaint regarding waste, fraud, abuse, or mismanagement, either anonymously or otherwise with the Program Integrity and Ethics Staff (PIES) in accordance with the IHS Hotline procedures. Information on using the IHS Hotline can be obtained by contacting PIES at (301) 443-4137 or by Internet access at the IHS Division of Human Resources Home Page, http://www.ihs.gov.
- Employees Assistance Program. Employees may use the Employee Assistance Program (EAP) for assistance in resolving issues giving rise to the grievance. Use of the EAP is confidential and as such provides a venue for employees to seek assistance with individual problem assessment, short term counseling, and referrals for ongoing care. The EAP office can be contacted on: 1-800-222-0364 or 1-888-262-7848.
7-5.5 STAGE 1 GRIEVANCE PROCEDURE
- The Stage 1 Procedure Applies to All Grievances. All Stage 1 grievances must be submitted to the official who made the decision or took the action that is the basis of the grievance.
- Filing at Stage 1. The employee must submit the grievance in writing to the Stage 1 Official. There is no entitlement to an oral grievance presentation. However, the parties may mutually agree to discuss the grievance.
- The Stage 1 Official. The Stage 1 Official is the first official within the organization who has authority over the matter being grieved. This is the official who made the decision or took the action about which the employee is dissatisfied.
- Grievances Concerning Personnel Matters. The appointing official is the Stage 1 Official for a grievance about decisions made in the Personnel Office, e.g., a qualification determination, rejection of an application for a position vacancy, or a salary-setting determination. An appointing official is one who has authority to approve an SF-50, "Notification of Personnel Action".
- Performance Appraisal Grievances. For performance appraisal grievances, the official who gave final approval to the summary rating is the Stage 1 Official.
- Content. To distinguish mere inquiries from grievances, the employee must specifically state in the written grievance that he or she is filing a Stage 1 grievance under the IHS AGS. The written grievance must also furnish sufficient detail to identify clearly the matter being grieved, explain the basis for the grievance, and specify the personal relief requested by the employee. The relief requested in the grievance or related documentation must directly benefit the grievant. The grievance should contain all available evidence, documentation, and rationale to support the grievance and the personal relief requested.
- Time Limit. The Stage 1 grievance must be submitted within 45 calendar days after the act or occurrence, or the date the employee became aware of the act or occurrence, that causes the employee to be aggrieved. The employee should forward a copy of the Stage 1 grievance to the SPO.
- Decision. As soon as possible but no later than 21 calendar days after receipt of the written grievance, the Stage 1 Official will inform the employee in writing of the decision. A copy of the decision should also be sent to the SPO. The Stage 1 decision will state whom the employee must contact at Stage 2 of the grievance procedure should the employee wish to further pursue the grievance and that the time limit for doing so is 14 calendar days after receipt of the Stage 1 decision.
- Waiver of Requirements. Waiver of any of the requirements referenced above may be granted if requested in writing before the expiration of the applicable time limits.
- Failure to Issue Timely Decision. If the Stage 1 Official fails to issue a timely decision, the employee may proceed to Stage 2 within the time limit specified below.
7-5.6 STAGE 2 GRIEVANCE PROCEDURE
- Filing at Stage 2. No later than 14 calendar days after either receipt of the Stage 1 decision or the date which the Stage 1 decision was due, the employee may present his/her grievance to the Stage 2 Official in the same manner as the Stage 1 grievance:
- The employee must specifically state in the written grievance that he/she is filing a Stage 2 grievance. There is no entitlement to an oral grievance presentation.
- The grievance must:
- Furnish sufficient detail to identify clearly the matter being grieved.
- Explain the basis for the grievance.
- Specify the personal relief requested by the employee.
- Contain all available documentation, evidence, and argument to support the grievance.
- Contain the personal relief requested.
- The grievance must include a copy of the Stage 1 grievance and a copy of the Stage 1 decision or state that one was not issued. The grievance should clearly state the reasons for disagreeing with the Stage 1 decision if one was issued.
- The grievance must be limited to grievable matters that were presented at Stage 1, but not resolved to the employee's satisfaction.
- Any of the requirements regarding either the content or the time limit for a Stage 2 grievance may be waived, in writing, by the Stage 2 Official.
- Deciding Official. The Stage 2 Official shall, after consultation with the SPO, issue the written decision to the employee as soon as possible but no later than 21 calendar days. The Stage 2 response must include the reasons for the decision. The time limit may be extended in writing at the discretion of the employee. Receipt of a Stage 2 decision is the final stage in the IHS AGS. There shall be no reconsideration, arbitration, or formal investigative procedures (i.e., by a third party such as a grievance examiner) or any other appeal beyond this stage of the grievance.
- Time Limit Not Met. If the Stage 2 Official fails to issue a decision within the time limit, as may be extended, the employee may at their option, report the matter in writing to the SPD. The matter will be referred to the appropriate management official with the authority to direct expeditious issuance of the Stage 2 decision.