The proponent of this memorandum is the Chief Human Capital Officer (CHCO). The CHCO has the authority to approve exceptions to this manual which are consistent with controlling law and regulation. The CHCO may delegate this authority to the Workforce Relations Division, Human Capital Office, or its successor organization.

Title 5, Code of Federal Regulations, Part 771, Agency Administrative Grievance System.

This IRM provides instructions and guidelines for the timely and equitable consideration of grievances of employees of the Internal Revenue Service (IRS). A copy of this IRM will be provided to any eligible employee (as defined in IRM 6.771.1.6) who has a grievance that falls within the coverage of the Agency Grievance System (AGS) as defined in IRM 6.771.1.7. Servicing Labor Relations offices will maintain additional supplies of the IRM.

Employees are entitled to present grievances without restraint, interference, coercion, discrimination, or reprisal. Grievances should be considered fairly and impartially, and processed expeditiously. Employees may be accompanied, represented, and advised by a representative of their own choosing with the following limitations - the proposed representative’s service must not result in:

Employees may designate a representative at any step of the procedure. The designation must be in writing and must be submitted to the supervisor/management official involved in the process. Approval/disapproval of agency employees serving as representatives will be made by the supervisor/manager who receives the initial grievance.

A grieving employee and his/her representative shall have full access to relevant information, unless the release is prohibited by law or regulation, and shall be permitted a reasonable amount of official duty time, if in duty status, to present a grievance and to communicate with Management and Labor/Employee Relations (L/ER) officials.

All grievances will be addressed within the Business Unit, Operating Division, or equivalent levels. If the Commissioner or equivalent of that unit (i.e., the Commissioner of the SB/SE, Chief Information Officer, etc.) is the first step official, he/she will also serve as the second step official.

Under no circumstances, will a grievance be elevated to the Commissioner of the IRS, the Deputy Commissioner (DC) for Operations Support, or to the DC for Services and Enforcement, unless, the Commissioners are in the immediate chain-of-command of the grievants (e.g., the Commissioner, LMSB reports directly to the DC for Services and Enforcement; therefore, he/she can file the grievance with the DC).

Alternative Dispute Resolution (ADR) –is an umbrella term that describes a wide range of methods, other than lawsuits, to resolve.

Appropriate Management Official (AMO) – is the person at the lowest management level, including the employee’s supervisor, who can remedy the employee’s specific concern or dissatisfaction.

Bargaining Unit Employee –is an employee included in an appropriate exclusive bargaining unit as determined by the Federal Labor Relations Authority for which a labor organization has been granted exclusive recognition.

Control of Agency Management – a decision that is exclusively within the delegated authority of the IRS.

Days – means workdays. Workdays excludes Saturdays, Sundays, holidays, and days on which the office is closed such as for inclement weather.

Deciding Official (DO) – A management official designated to decide the formal grievance. The deciding official must be at a higher organizational level than the official involved in the matter(s) being grieved or of the grievance itself. The manage-ment official, who recommended, advised, or decided on the matter being grieved is considered to have been involved and must disqualify him/herself as the deciding official, unless he/she is the head of the agency. When a deciding official is disqualified, the person at the next higher administrative level will be the designated deciding official. The authority of the deciding official may not be delegated.

Employee – includes a former employee for whom a remedy can be provided.

Fact-finder – an individual assigned by the AMO or DO to gather information and provide an independent, unbiased review pertain-ing to the issue(s) being grieved and prepare a report that will enable the AMO/DO to make an informed decision.

Grievance – is a request by an employee, or group of employees acting as individuals, for personal relief in a matter of concern or dissatisfaction relating to the employment of the employee(s) which is subject to the control of agency management, including any allegation of coercion, reprisal (except in EEO cases) or retaliation.

Grievance Examiner – is that individual who conducts an inquiry into and recommends a course of action in any grievance which has not been resolved prior to receipt by the deciding official.

Grievance file – means a separate file which contains all docu-ments related to the grievance, including, but not limited to, any statements of witnesses, records or copies thereof, statements made by the parties to the grievance, and the decision.

Group Grievances – when a group of employees has an identical formal grievance, it will be combined and heard as one complaint. The decision will be binding on all employees. The group will select one case for processing under the provisions of the agency grievance procedure and that grievance and his/her representative will present the case and participate in meetings, discussions, and interviews on behalf of the group.

Mediation – is a voluntary process in which a neutral party helps two parties hear, sort through and understand each other’s issues. Mediation is designed to encourage open communication to allow the parties themselves to devise a mutually agreeable solution or resolution.

Mediator – an individual who has been trained and certified in mediation techniques, conflict management and mediation skills and possesses the requisite skills to effectively mediate disputes.

Personal relief – a specific remedy directly benefiting the grievant(s) and may not include a request for disciplinary or other action affecting another employee.

Representative – except as provided in 6.771.1.4(1) above, is any person designated by an employee in writing to assist, or to act for, that employee in the presentation of a grievance.

Threshold issue – is an issue of grievability or timeliness that must be decided prior to reaching a decision on the merits of the grievance.

The CHCO will:

The servicing L/ER Specialist will:

Managers/supervisors will:

Included:

Excluded:

Except as listed below, the AGS applies to any matter of concern or dissatisfaction relating to the employment of a covered employee that is subject to the control of IRS management.

Employees cannot file an EEO complaint and an agency grievance on the same issue at the same time. If an EEO complaint was filed and later not accepted by the EEO office, employees may file a grievance within 15 days after the receipt of the EEO written notice.

The AGS excludes matters in the table below.

A grievance will be cancelled for any of the following reasons:

A copy of the cancellation notice will be included in the grievance file.

Employees must present a work-related problem(s) and/or issue(s) to their immediate supervisor before filing a formal grievance. If the matter involves an issue or action directly involving the immediate supervisor, the employee may present it to the next higher level official in the chain-of-command who can remedy the situation.

The problem must be presented within 15 days of the date of the act or event giving rise to the problem, or the date the employee became aware of the act or event. When calculating time limits, the day of an action or receipt of a document is not counted. (See Note below.)

Supervisors who are presented with an employee problem should determine timeliness and grievability of the matter. If there are any concerns about the employee’s representative, that should be addressed at this stage as well. If there are no threshold issues, the supervisor should make a determined effort to resolve the grievance. If the issue is outside of the supervisor’s authority and/or responsibility, s/he must contact the official(s) who may be able to resolve the issue. Supervisors and managers must contact their servicing L/ER specialist for advice and assist-ance while proceeding with the grievance. Supervisors/managers must also forward a copy of the grievance (either the employees written grievance or the grievance as captured by the supervisor) to the servicing LR office so that an ALERTS case file is established.

At a minimum, within 15 days after the receipt of the grievance, supervisors must communicate (either face to face or via confer-ence call) with the employee and the employee’s representative, and prepare a memorandum for record (MFR) of the meeting or the conference call. The MFR should briefly summarize the problem, the consideration given, the conclusions reached, a decision on the issue, and if any remedy should be granted.

If the grievance is not resolved, the supervisor/manager may discuss with the grievant available ADR processes as an alternative to the formal grievance process. In order to use ADR, both parties must agree to participate.

If the parties agree to use ADR, they must choose one of the following outlined in the paragraphs below.

Panel Review: This process involves a panel consisting of three members. Within 5 days of election, the supervisor, who heard the informal grievance, will appoint a person to represent the management’s position, and the grievant will appoint an agency employee to represent his/her position.

Mediation: The mediation process provides an opportunity for a third-party neutral to assist the parties in reaching their own resolution of the dispute. In mediation, the parties are completely responsible for designing their own solution. The mediator does not make a binding decision for the parties, but guides them to their own mutually-acceptable resolution of the grievance. Instead of creating winners and losers, the grievance mediation process develops cooperative problem-solving between the supervisor and the employee. The goal is to use mediation as a means to help the parties improve their workplace relationship, and to use the process as a tool to help parties establish better methods for managing and resolving conflict themselves.

After the receipt of the first-step decision (problem solving procedure), the employee retains the right to grieve the matter to the next level official (Deciding Official) who receives, adjudicates, and renders the final agency decision.

Within 5 days of the problem solving, or unresolved mediation notice, or the date of a formal disciplinary action, employees must submit the grievance, in writing, to the deciding official. New issue(s), that were not considered in the problem solving/ADR process, may not be raised at this time. The formal grievance may be presented by attaching the previous IRS Form 5877 with a cover memorandum. The grievance must state that the matter was not resolved during the problem-solving/ADR process, and that the grievant has not filed an EEO complaint on the same or similar issue.

Upon receipt, the deciding official will review the grievance and will determine the appropriateness of assigning a grievance examiner. The use of grievance examiners for the following matters is mandatory before issuing the final agency decision:

If a grievance examiner was used, the decision should be issued within 10 days after the receipt of the report of findings and recommendations from the grievance examiner. If no grievance examiner was utilized, the decision should be issued within 10 days of receipt of the formal grievance. Either way, the decision is final, binding, and not subject to further review.

Even though the AGS excludes from grievance coverage the non selection for promotion from a group of properly ranked and certified candidates, or failure to receive a non-competitive promotion, it does cover the allegations of inappropriately constituted referral lists and inappropriate ranking and rating practices. In order to address these issues properly, the grievant must provide specific examples of how the ranking process and/or the referral list was flawed and how that flaw adversely affected the grievants’ ranking.

Request for Reconsideration of Rating for Paybanded Employees: Payband employees must submit grievances concerning their performance ratings in writing on Form 5877, Agency Grievance Authorization for Representative’s Access to Official Records, to their designated Performance Review Board (PRB) within 3 days from receipt of the rating. Each Operating Division, Functional Division, Shared Service or equivalent has the flexibility to establish its own PRB grievance processing guidelines. These guidelines must be established, in writing, prior to any PRB reconsideration process. Simultaneously, grievants must provide a copy of the grievance to their supervisor(s) and to the servicing L/ER office. It is the grievants’ responsibility to assure that the grievance packet includes all the relevant information and is timely filed. Within 2 days, the PRB will review written grievances to determine the following threshold issues:

Incomplete Grievances: If grievances are incomplete, they will be returned. Grievants may resubmit completed grievances within three days after the receipt of the incomplete grievance from the PRB.

Grievability Determination: If the original or the resubmitted grievances is determined to be not grievable due to untimely filing, non-grievable issues, eligibility, etc., the PRB’s decision on the threshold issue(s) will be sent to the grievant. The PRB should consult with its servicing L/ER before finalizing its decision. HCO/ LR/ER Strategic Policy Branch will provide guidance to the servicing L/ER offices as necessary. The PRB’s threshold decision is final, binding, and not subject to further review. A copy of the decision will be provided to the supervisor of the grieving employee, and to the servicing L/ER office.

Merit Determination: If the grievance is acceptable, the PRB will consider the written reconsideration request and will provide a written decision within 5 days. The response will include the PRB’s decision, notification of right to proceed to the next step in the expedited process, and the time limits in which the formal grievance must be filed.

Grievance: Upon receipt of the reconsideration response, grievants have 3 days to pursue a grievance. The grievance should include the original Form 5877, the reconsideration decision received from the PRB, and any other documents to support grievants’ position. A designated representative or a group of representatives of the Division Commissioner or equivalent, who were not involved in the reconsideration process, will review the grievance, fully consider the documents submitted to support the SM’s position, and render a written decision within 5 days. Each Operating Division or equivalent entity will identify its own designated representative(s). The Commissioner’s representative(s) decision is final, binding, and not subject to further review.

Request for Reconsideration of Rating of Non-Payband Employees: The problem may be presented in writing by using the IRS Form 5877. The grievance must be submitted to the supervisor or manager who approved the performance rating in question (reviewing official) within 3 days from receipt of the rating. It is grievants’ responsibility to assure that the grievance packet includes all the relevant information and is timely filed. Within 7 days, the reviewing official will evaluate the grievance to determine the following threshold issues:

Merit Determination: If the grievance does not have threshold issues, or if HCO/LR/ER Strategic Policy Branch decides a threshold issue or denial of representative issue in the grievant’s favor, the reviewing official will consider the grievance and will provide a written decision within 7 days. The response will include the notification of the grievants’ option to proceed to the next step in the expedited process, and the time limits in which the grievance must be filed.

Grievance: Upon receipt of the reconsideration response, grievants have 3 days to pursue a formal grievance. The grievance packet should include the original Form 5877, the reconsideration decision received from the reviewing official, and any other documents to support the grievants’ position. The management official one level above the reviewing official should review the grievance, fully consider the documents submitted to support the grievants’ position, and render a written decision within 7 days.

The use of ADR, particularly panel review process, is strongly encouraged to resolve performance related grievances.