By Edwin Osorio 2nd Vice President
We are now in a time of reckoning that will reconstitute the premise of the SSA/AFGE grievance process and bring it more in line with its ideal of preeminent fairness and equity, and reconciling it with the instrument of procurement. Substantive process must be supported with the quantitative truth that there is more needed than just the pretext of an apparatus of impartiality; the pretense of a working grievance process is no longer sufficient. In its present form, Article 24 describing the grievance process as a “mutually acceptable method for the prompt and equitable settlement of grievances” has been more efficient at marginalizing bargaining unit employees and has fostered an environment of distrust and disassociation by discouraging its use. After all, can anyone imagine being tried for a crime and being allowed to choose the jury among family and friends? In essences, this is what SSA does as it uses management operatives beholden to their employer to adjudicate employee complaints.
Because bargaining unit employees have come to see the grievance process as more of a way of aggrandizing the fallacy of fairness by exploiting an employee’s vulnerabilities with the illusion of efficient resolution; instead, it is a process to be avoided at all cost. This of course has the opposite effect than intended, as it empowers management operatives to subvert the contract and engage in behavior that is conducive to employee detachment and suppresses collegiality that would more likely promote high office morale. And now that this mistrust of a system that never worked for them has rendered it virtually useless, it is time to restore the spirit that was never fully realized when the grievance process was put into practice. In order to do this properly all the defects of the grievance process must be identified in order to avoid perpetuating the same errors.
Just like the Founding Fathers recognized when they came to the sobering conclusion that the Articles of Confederation was wholly inadequate and fell short of what it was meant to accomplish, we must concede defeat and commit ourselves to the creation of a system that earns the confidence of the constituents it is meant to protect and restores more than just the façade of fairness and equity. If the true purpose of the grievance process is to provide a prompt and equitable settlement of complaints, it must begin with real mutuality. To simply say it is mutually agreed upon with no real accord only undermines the credibility of the process that can only exist when it is completely beyond reproach. There can be no faith in a faithless process. Therefore, before anything is agreed upon, there must be a process of checks and balances that ensures there is not even the perception of impropriety. This means that the party that is the defendant cannot also be the arbiter and fact finder.
In a proper grievance process, neither party can be in a position to control the outcome of the decision beyond providing evidentiary documents. Ideally, this would mean that a third party such as an FMCS mediator should hear any complaints that are raised through the grievance process. Understandably, this may raise the issue of expense, as it would be quite costly to hire a mediator for every grievance that is executed. On the other hand, this would incentivize the agency to want to avoid grievances. When grievance becomes prohibitively costly, the agency will be motivated to avoid them by seeking less expensive methods to resolve complaints. This may encourage more informal attempts to resolve disputes; this may also encourage better behavior from the outset and better training of management operatives to avoid situations that would lead to such costly grievances. In the event a resolution cannot be achieved through mediation, the complaint should go straight to arbitration with the loser paying all associated arbitration fees. Additionally, the mediator should write the controlling narrative for the arbitrator to evaluate, with the understanding that the mediator may have agreed with one party over the other—this could facilitate an agreement and avoid costly arbitration.
In order to ensure this process does not get abused, when a similar issues is grieved three times within a calendar year, the aggrieved must go before a panel of three members to determine if the issue is meritorious or frivolous, or if the issue requires agency intervention. This panel should consist of three members, two agency representatives and one union representative. If the panel decides the complaint is frivolous, it cannot go to mediation. If the similar complaint is raised a fourth time in the same calendar year as the third complaint decision , it will again go before a panel of three different panelists that now will consist of two union representatives and one agency representative. If this tribunal determines that the grievance is frivolous, it can accept the management official’s recommendation for a type of sanction or admonishment or choose a different sanction. If the panel was to find merit in the complaint, the union can require the agency discipline the management operative(s) that is responsible—this should not be considered in violation of management rights as it has agreed to waive its statutory right. If the agency disagrees with the decision it can file arbitration against the Union at the agency’s expense.
This is an approach that can not only be effective in infusing confidence in a system of enforcement that provides efficacy and makes employees feel protected. This would be a significant difference from the disaffection employees currently feel from the inherent subjugation that brings about adherence to what they believe is corrosive, but is in their minds the lesser of two evils (risking retribution is the less appealing of the inevitable dilemma). This is because the current 2019 National “Disagreement” relies far too much on the purity of intent with no levers of conformity. A grievance procedure based on the foregoing principles or some loose facsimilia would ameliorate the process and return integrity to a process that has gradually attenuated employee’s confidence and willingness to advocate for themselves. This process could also be an alternative to a dysfunctional HPO that simply does not equate a no tolerance disposition that is often espoused by the agency.