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Part 6. Human Resources Management

Chapter 771. Employee Grievance System

Section 2. Grievance Examiner Handbook

6.771.2  Grievance Examiner Handbook

6.771.2.1  (07-01-2002)
Overview

  1. This Grievance Examiner Handbook provides assistance to those who have been designated as examiners to inquire into grievances filed under the IRS Employee Grievance System, IRM 6.771.1.

  2. The Handbook is not intended as a regulatory guide. Its purpose is to clarify the duties and responsibilities of the grievance examiner. It suggests the way in which examiners should prepare for the inquiry, conduct the inquiry, and prepare the report of findings and recommendations.

  3. The Handbook is effective upon issuance for agency grievances assigned to an examiner on and after that date. The SHR Workforce Relations Division will distribute copies to designated grievance examiners.

6.771.2.2  (07-01-2002)
Regulatory Basis

  1. 5 CFR 771 requires agency grievance procedures to provide for fact-finding, when appropriate. The IRS requires that fact-finding be carried out by grievance examiners in accordance with the instructions herein.

  2. 6.771.1.4(8) defines a grievance as 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 which is subject to the control of agency (IRS) management. Grievances include allegations of coercion, reprisal (except in EEO cases) or retaliation.

  3. Any employee covered by this system may file a grievance in accordance with the procedures established in 6.771.1. If the grievance remains unresolved after discussions with the deciding official, the grievant may request, through the deciding official, that the grievance be referred to a grievance examiner.

6.771.2.3  (07-01-2002)
Importance of Grievance Examiners

  1. Selection of grievance examiners is based upon demonstration of personal attributes of integrity, discretion, reliability, objectivity, impartiality, resourcefulness, and emotional stability (see 6.771.1.17.1). Examiners must be able to apply mature judgment, communicate effectively, analyze facts in examining grievances (which often are sensitive and complex in nature), and recommend practical decisions that may have far-reaching consequences. Examiners are expected to conduct every inquiry in such a way as to maintain objectivity and preserve the appearance of such objectivity at all times.

  2. Examiners must be careful not to make statements that can be misinterpreted as premature recommendations or as compromising their positions in any way while conducting their activities.

6.771.2.4  (07-01-2002)
Assignment of Grievance Examiners

  1. The SHR Workforce Relations Division maintains a list of qualified examiners. Upon request by the employee through the deciding official, the SHR Workforce Relations Division assigns an examiner and notifies the appropriate servicing Labor Relations office. This name, in turn, is conveyed by the Labor Relations Specialist to the deciding official for designation (see 6.771.1.17.2).

  2. Grievance examiners must disqualify themselves from an assigned case if they find, upon review of the case, that there is any relationship or attitude, past or present, between themselves, the parties to the grievance, or the subject matter involved which would present the appearance of a conflict of interest — or which would prevent them from conducting a fair inquiry, objectively reporting their findings of fact, and making recommendations.

6.771.2.5  (07-01-2002)
Employee Right to Representation

  1. The grievant has the right to be accompanied, represented, and advised by a representative of choice, except that a designated representative may be disallowed as provided in 6.771.1.12).

  2. The examiner must assure, if it is the grievant’s intent to do so, that written consent or power of attorney has been provided which expressly authorizes the designated representative access to official records personal to the grievant that are relevant to the grievance. The representative’s access to returns and return information is subject to the provisions of 26 U.S.C. 6103.

  3. The grievant has the right to have his/her representative present at any meeting at which the grievant is present. The representative has the right to speak for the grievant. This does not mean that a management official cannot direct questions to the grievant. However, the representative may respond to such questions at the direction of the grievant.

6.771.2.6  (07-01-2002)
Union Rights

  1. If a bargaining unit employee has filed a grievance under 6.771.1, there are no rights that accrue to the union as an institution. In 6-CA-732, ALJDR No. 1 (1981), the ALJ held that the union has no right to be present at agency grievance meetings.

  2. The examiner should consult the Labor Relations Specialist designated to assist and to provide advice and guidance in this area.

6.771.2.7  (07-01-2002)
Examination of the Grievance

  1. The grievance examiner will conduct an inquiry of a nature and scope necessary to obtain the facts of the grievance and make a recommendation. The examiner alone determines the extent of the inquiry. It may require only the securing of documentary evidence, or it may require personal interviews, group meetings, a hearing, or any combination of these. The examiner must make any evidence used as a basis for the recommendation(s) a part of the grievance file; conversely, the examiner may not base the recommendation(s) on any information that is not a part of the grievance file.

  2. At the time a grievance is assigned to a grievance examiner, and before beginning to plan the case examination, the examiner should study and become familiar with IRM 6.771.1 and this Handbook. The examiner should note, in particular, the suggested time limit for completing the case (see 6.771.15.7(2)), and the requirements governing the contents of and access to the grievance file (see 6.771.1.18.).

6.771.2.8  (07-01-2002)
Definition of Issues

  1. The grievance, when assigned to the examiner, should clearly set forth the issues discussed up to that point and the personal relief sought by the employee. If, upon review by the examiner, the grievance is not clear — either as to the issues or the relief sought — the examiner may request a written memorandum of understanding from the parties to the grievance. If issues are raised which were not raised at Step 1, the examiner will bring this to the attention of the deciding official. If the issues are integral to the grievance, the examiner may stay the inquiry, if all parties agree, until these new issues have progressed through the earlier steps of the grievance procedure. If the issues are clearly separable from the grievance at hand, or if all parties do not agree to stay the inquiry, the examiner will advise the employee that the inquiry must proceed only on the issues raised in the original grievance, and that the employee must file another grievance to have the new issues considered.

  2. If the examiner believes that one or more of the issues are not grievable (pursuant to 6.771.1.7), the examiner will notify the deciding official in writing of that finding. Copies will be provided to the grievant, the grievant’s representative (subject to the restriction in 6.771.1.11(5)), the appropriate management official, and the Director, Workforce Relations Division.

    1. If the deciding official agrees with the examiner’s findings regarding grievability, a formal nongrievability determination will be made pursuant to 6.771.1.15.5(2). In this case, the examiner may proceed with the inquiry on any issue(s) which are grievable. Otherwise, the inquiry will be stayed pending a final determination on the grievability question.

    2. If the deciding official disagrees with the examiner’s findings regarding grievability, the deciding official will so notify the examiner in writing — with copies provided to all parties listed in (2) above. In this case, the examiner will proceed with the inquiry, and may refer to the initial findings of nongrievability in the report.

6.771.2.9  (07-01-2002)
Preliminary Analysis

  1. When the grievance is clear as to the issues and the relief sought by the employee, the examiner should perform a preliminary analysis to determine:

    1. Whether and to what extent the issues are governed directly or indirectly by law, regulations of higher authorities (e.g. OPM Regulations, Comptroller General decision, etc.), or by published agency policy (see 6.771.1.4(12)) that would help to establish a perspective both for judging the propriety of what has allegedly occurred and for shaping any recommendation(s) for settling the grievance; and

    2. The facts needed to establish what actually occurred in relation to the grievant’s allegation(s).

  2. If all of the facts which the examiner considers necessary are available in the grievance file and the grievant and management are in agreement on the facts, the examiner may be able to complete the analysis and report without the necessity of a personal visit.

6.771.2.10  (07-01-2002)
Types of Inquiry

  1. An inquiry may consist of:

    • Securing of documentary evidence

    • Personal interviews

    • A group meeting

    • A hearing

    • Any combination of the above

6.771.2.11  (07-01-2002)
Guidelines for Determining Extent of Inquiry

  1. The grievance examiner is responsible for determining the scope and type of inquiry appropriate to the issues involved in the grievance. Inquiries may vary in type and intensity based on the nature, gravity, and complexity of the subject matter involved. The following characteristics and examples of types of inquiry may be useful as a general guide to help assure that comparable inquiry is made of comparable matters:

    1. Securing of Documentary Evidence. This technique alone may suffice when there is essential agreement about the basic facts but disagreement concerning whether these facts are consistent with a governing regulation, policy or procedure. Examples are entitlement to salary for compensatory overtime, premium pay determinations, and claims that the requirements of the Merit Promotion Program have not been met.

    2. Interview. In some grievances there may be no documentary evidence and personal interviews may be the only effective technique. In other cases, interviews may be necessary in addition to documentary evidence. An inquiry consisting primarily of personal interviews usually involves problems arising out of the employee’s immediate work environment. Examples are grievances concerning physical facilities, relationships with supervisors or co-workers, and failure to be granted leave.

    3. Group Meeting. A group meeting would seldom be the only method of inquiry. Used in combination with personal interviews and/or documentary evidence, it is useful when the issues involve opinions or judgments which are subjective in nature, such as those that arise out of considerations of the employee’s capabilities or potential in relation to staffing needs, and when issues concern the less severe disciplinary actions. Examples are failure to get a desired assignment, nonselection for training opportunities, and reprimands and similar disciplinary actions.

    4. Hearing. Because of the broad latitude the grievance examiner has for independent exploration of all available kinds of evidence, a hearing should very rarely, if ever, be necessary. A hearing is a last-resort technique to be used only when the examiner has been unable to arrive at a supportable conclusion on a given issue because the only evidence gathered by other means is both contradictory and indistinguishable from the standpoint of relative credibility. No examples are given of the types of grievances in which a hearing may be necessary because there are no typical issues for which it is commonly used. The examiner must determine the need for a hearing on a case-by-case basis depending on the relative credibility of the evidence obtained through other methods of inquiry.

    5. Any Combination of Types of Inquiry. Use of several types of inquiry is generally necessary when the issues are complex, such as the improper application/interpretation of regulations, policies, and/or procedures in combination with subjective consideration or evaluation of employee qualifications, capabilities, potentials, or behavior. Examples are failure to get a desired assignment, improper ranking of merit promotion list, involuntary reassignment, and disciplinary actions.

6.771.2.12  (07-01-2002)
Conducting the Inquiry

  1. Securing of documentary evidence may be done on site or sent to the examiner upon request. The examiner will determine what documents to ask for and review. If records are confidential and cannot be made a part of the grievance file, the examiner should obtain that portion needed through interview and make a record of it for the grievance file.

6.771.2.12.1  (07-01-2002)
Interview or Group Meeting

  1. Interviews should be held in private. At the beginning of an interview, the employee being interviewed should be informed of the examiner’s identity, the purpose of the interview, and that a statement or summary of the interview will be made and will become a part of the grievance file. The employee should also be informed that the he or she will be asked to sign the statement or summary, noting any exceptions.

  2. Interviews are generally with one person, but in some instances a group meeting may be desirable.

  3. An examiner usually will interview the aggrieved employee first, and then interview the person or persons whose alleged action or failure to act gave rise to the grievance. If either provides names of other persons they wish to have interviewed, the examiner should obtain some indication of the aspects of the grievance on which each of the other persons can be expected to have knowledge. If the interviewee(s) provides no additional names, the examiner should ask for the names of others who have direct knowledge of the grievance if additional information will aid in developing a complete factual picture. The grievance examiner will determine which, if any, of these individuals to interview. An employee is in duty status while being interviewed by a grievance examiner or while in a group meeting called by the examiner.

  4. The grievance examiner is acting in an official capacity, and employees must respond to questions of the examiner. The employee being interviewed may be uncommunicative, ill at ease, evasive, indifferent or verbose — or may display other characteristics that will require skill on the part of the examiner in obtaining facts. In some instances, it may be necessary to inform an employee that certain statements appear inconsistent, and to ask for reconciliation or further explanation. The examiner should strive to get specific facts, not generalities. Care must be exercised not to put words in the mouths of persons interviewed.

  5. As soon as practicable after the interview or group meeting, a summary of the interview or group meeting will be prepared and each person will be asked to sign the summary.

  6. Documentation of any individual interviews or group meetings should clearly identify the person or persons, their positions and their relevance to the case. Grievance examiners may accept information given under a pledge of confidentiality. However, care and good judgment should be exercised in considering the value of such information. In addition, confidential information may not be used to support an action taken against an employee.

6.771.2.12.2  (07-01-2002)
Hearing

  1. When a hearing is used, the examiner will frame the issue in specific terms and confine the hearing within that narrow scope, being careful to avoid opening the hearing to debate on issues for which the examiner has already obtained conclusive evidence.

  2. If a hearing is to be scheduled, at the examiner’s discretion an executive secretary may be appointed to assist with the administrative details of the hearing. Ordinarily, the executive secretary should be a staff member of the grievant’s servicing Labor Relations office, selected in consultation with the Personnel officer. In order to avoid any conflict of interest or the appearance of such a conflict, the person selected to serve as executive secretary should have had no previous direct or indirect involvement in the grievance.

  3. When a hearing is to be conducted, the examiner will notify the parties in advance and include the following information:

    1. The time and place of hearing;

    2. The specific nature of the issue to be addressed, and the limitation of the hearing to that issue;

    3. The right to representation;

    4. The right to produce pertinent documents and witnesses in support of their respective positions, and to cross-examine witnesses for the other party;

    5. The necessity for requesting the examiner to arrange for the presence of witnesses who are IRS employees; and

    6. Notification that the hearing will be transcribed verbatim (the servicing Labor Relations office will to submit the requisition for a court reporter).

  4. The examiner will conduct the hearing in accordance with 6.771.2.29

6.771.2.13  (07-01-2002)
Evidence

  1. Formal rules of evidence do not apply to the grievance examiner’s inquiry, even at a hearing.

  2. In order to be considered, evidence must be both relevant and material, and must not be unduly repetitious:

    1. Evidence is relevant when it has some bearing on the issues such that it will, by itself or together with other evidence, prove or render probable (or disprove or render improbable) the issues.

    2. Evidence is material when it will have some weight in the disposition of the case.

    3. Evidence is unduly repetitious when it duplicates other evidence that conclusively proves the points.

  3. Types of evidence are:

    1. Direct — Evidence which, by itself, without inference, tends to prove or disprove a fact.

    2. Circumstantial — Evidence which provides reasonable grounds for believing or deciding as to the existence of a fact. Circumstances which tend to show that the essential facts are or are not true.

    3. Hearsay — Information the employee does not have actual knowledge of, but has received from another source. It may be included if it is identified as such.

  4. Evidence Standard:

    1. All evidence that is relevant, material and not unduly repetitious may be considered for what it is worth. However, the greatest importance is usually attached to direct evidence, if available, with correspondingly less emphasis given to circumstantial and hearsay evidence (although either could constitute persuasive evidence in individual cases). The standard of evidence to be applied in agency grievance proceedings is substantial evidence. Substantial evidence is defined as that degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as adequate to support a conclusion that the matter asserted is true. This standard precludes the grievance examiner from substituting his or her own judgment for that of the agency. It obliges the grievance examiner to determine only whether, in light of all of the relevant and credible evidence, a reasonable person could agree with the agency’s decision (even though other reasonable persons including the grievance examiner might disagree with that decision).

    2. The substantial evidence standard is required for disciplinary actions and for actions based on unacceptable performance (i.e., management must prove, by substantial evidence, that there is a basis in fact for these actions). The substantial evidence standard is also applicable to findings on any disputed questions of fact. However, many grievances will involve alleged misinterpretation of regulations or abuse of managerial discretion where questions of fact are not of central concern. In grievances alleging misapplication of the IRM, for example, the examiner should decide whether the application was reasonable, appropriate and consistent. In grievances alleging abuse of discretion, the examiner should decide whether management’s action was fairly and reasonably applied without capriciousness or arbitrariness. Finally, when reviewing penalties imposed in disciplinary actions, the examiner should decide whether the penalty was reasonable, proportionate to the offense, and whether it would promote the efficiency of the service (i.e., could the employee’s conduct reasonably be expected to interfere with the ability of the person to function in the position or with the agency’s ability to discharge its responsibilities).

6.771.2.14  (07-01-2002)
Burden of Proof

  1. The concept of burden of proof is ordinarily applied to adversary proceedings, and therefore, is generally not of concern in the agency grievance procedure.

  2. The grievance examiner is given considerable latitude and discretion for ascertaining the facts at issue through an independent inquiry into the grievance. The examiner’s recommendation is to be based on the findings of the inquiry.

  3. There are exceptions to this general rule, however, which apply whenever the grievance concerns an action taken by management that is directly and personally adverse to the employee. Examples of exceptions are:

    1. When management has taken disciplinary action against an employee, management bears the burden of proving a reasonable cause for such action.

    2. In performance ratings, management bears the burden of proof in establishing reasonable cause for assigning element markings of less than satisfactory. Similarly, the employee bears the burden of proving entitlement to element markings of better than satisfactory.

  4. The significance of assigning burden of proof to one party or the other lies in the fact that if the party bearing the burden is unable to prove allegations made, and if the examiner is unable to establish the truth of the allegation by independent inquiry, then the allegation must be judged to be without merit.

6.771.2.15  (07-01-2002)
Grievance File

  1. The examiner will assure that the grievance file is in chronological order and that it contains all documents relating to the grievance — including the grievance referred to the examiner for inquiry, and any additional evidence obtained during the examination which will be considered in preparing findings and recommendations (see 6.771.1.18.1).

  2. Upon completion of the examination and prior to preparing the report of findings and recommendations, the examiner will make duplicate grievance files available to the employee, the employee’s representative (subject to the restriction of 6.771.1.11(5)), and the appropriate management official for review and comment as to the conduct of the inquiry.

  3. Any comments received will be included in the grievance file.

6.771.2.16  (07-01-2002)
Analysis and Findings

  1. At the conclusion of the inquiry, the examiner will analyze the evidence available and the requirements of instructions governing the matters at issue. The examiner will then formulate findings of fact which are supported by the evidence on all matters at issue in the grievance.

  2. An examiner’s findings must be based solely on the evidence in the grievance file. The examiner’s analysis should show the reasoning used to arrive at the findings of fact. The findings should be a clear, concise, and straightforward statement that can be understood by all parties to the proceedings.

6.771.2.17  (07-01-2002)
Recommendations

  1. Having established the facts relevant to any and all issues involved, the grievance examiner will determine whether any remedial action is warranted.

  2. If management action (or failure to act) was in accord with the law, regulations and applicable agency policy as defined in 6.771.1.4(12), and was fairly and reasonably applied without capriciousness or arbitrariness, no remedial action would be called for unless extenuating circumstances are present.

  3. If either or both of the conditions described in (2) above are not met, some remedial action would be in order. In such case and with due regard for the specific relief sought by the grievant, the examiner will formulate recommendation(s) which the examiner considers to be responsive to the problem, fair to the grievant, and consistent with legitimate Service interests.

  4. When formulating recommendations, care should be taken to avoid general program management recommendations that would tend to be gratuitous and offensive.

  5. Recommendations may not be more adverse to the grievant than the action being grieved.

6.771.2.18  (07-01-2002)
Examiner's Report

  1. The examiner should write the report as clearly and concisely as possible without gratuitous or antagonistic statements about the case, or observations and opinions on points not at issue. See Exhibit 6.771.2-1 for suggested content and format of a report, and Exhibit 6.771.2-2 for use of exhibits and enclosures. The report should contain:

    • A brief summary of the grievance

    • An analysis of each issue raised and the evidence or facts leading to a finding on each

    • A statement of findings on each issue raised

    • Recommendation(s) for resolving the grievance

  2. The examiner will submit the completed report along with the grievance file to the deciding official. The examiner will also furnish copies of the report to the employee, to the employee’s representative (subject to the restriction of 6.771.1.11(5)), to the appropriate management official and to the Director, Workforce Relations Division (Attn: N:ADC:H:R).

  3. The Servicewide Agency Grievance Program Manager, SHR Workforce Relations Division (N:ADC:H:R), will review reports of findings and recommendations submitted by grievance examiners, and periodically will provide feedback to the examiners based upon that review. Exhibit 6.771.2-3 outlines the criteria against which the reports will be reviewed.

6.771.2.19  (07-01-2002)
Action After Recommendations

  1. Once the examiner has submitted the report of findings and recommendations to the deciding or reconsideration official, with copies to the other parties, the examiner’s duties in the case are completed.

  2. The examiner will be furnished a copy of the deciding official’s letter referring the grievance examiner’s recommendations to the appellate official for decision, and/or the final decision letter.

  3. Recommendations to the appellate official for decision should present any information that may assist in achieving a solution, and should cite any specific provisions of law or regulation believed applicable.

6.771.2.20  (07-01-2002)
Labor Relations Staff as Source of Assistance

  1. Staff members of the grievant’s servicing Labor Relations office are available to provide assistance to the examiner in any of the following ways:

    1. Helping to locate instructional material pertinent to matters at issue in a grievance;

    2. Advising on applicability and/or technical interpretation of any instructional issuances in the subject matter area of personnel management (While the examiner is ultimately responsible for technical decisions leading to the recommendations, such as the application of qualification requirements, the examiner should solicit advice on such matters and weigh that advice carefully in reaching conclusions.);

    3. Procuring any documentary evidence specifically requested by the examiner;

    4. Assisting with the schedule of and making physical arrangements for any interviews, group meeting, or hearings required by the examiner; and/or

    5. Serving as executive secretary for any hearings scheduled by the examiner. In order to avoid any conflict of interest or the appearance of such a conflict, the person selected to serve as Executive Secretary should have had no previous direct or indirect involvement in the grievance.

  2. Staff members of the grievance examiner’s servicing Labor Relations office, and/or the SHR Workforce Relations Division are also available to provide assistance to the examiner as indicated in (1) a, b, and c above.

6.771.2.21  (07-01-2002)
Allegations of Discrimination

  1. If discrimination on grounds of race, color, religion, sex, national origin, age, or mental or physical handicap in connection with a grievance is alleged during the examiner’s inquiry, the examiner will explain to the grievant that either:

    1. The grievant may make a formal allegation of discrimination and the examiner’s inquiry will be suspended until the discrimination charge is adjudicated (unless the resolution of other aspects of the grievance can be separated from the issue of alleged discrimination (see 6.771.1.16.1)); or

    2. The grievant may withdraw the complaint of discrimination, without prejudice, and the examiner will continue the inquiry based on the original facts.

  2. If the grievant makes a formal allegation of discrimination, and if there are no other aspects of the grievance which can be pursued independently of the discrimination allegation, the examiner will send the grievance file to the Director, Workforce Relations Division (Attn: N:ADC:H:R) with a memorandum explaining the status of the grievance. A copy of the memorandum will be provided to the deciding official.

  3. When the discrimination complaint has been adjudicated or when it has been withdrawn by the grievant, and if the grievant wishes to pursue the original grievance, a grievance examiner will be assigned to the case at that time. The grievance examiner will be appointed in accordance with 6.771.1.17.2. The Director, Workforce Relations Division, will forward the grievance file directly to the examiner.

6.771.2.22  (07-01-2002)
Allegation of Unfair Labor Practice

  1. Certain allegations that, if substantiated, would constitute unfair labor practices under the CSRA, may be processed under this grievance procedure if the employee so elects. Technical advice to the examiner will be made available by the SHR Workforce Relations Division (N:ADC:H:R) to avoid any conflict of interest in the adjudication of the grievance.

6.771.2.23  (07-01-2002)
Grievance Withdrawn

  1. The grievant must provide a written statement that the grievance is being withdrawn. This statement will close the file. The examiner will submit the grievant’s withdrawal statement along with the grievance file to the deciding official. Copies of the withdrawal statement will be provided to the employee’s representative (subject to the restriction in 6.771.1.11(5)), to the appropriate management official, and to the Director, Workforce Relations Division (Attn: N:ADC:H:R).

6.771.2.24  (07-01-2002)
Mediation

  1. The foregoing material relates to that part of the grievance examiner’s role concerned with fact-finding and recommendations for resolution. Since the function of the examiner is to contribute to a fair and reasonable settlement of the grievance, it is also necessary to consider what responsibility the examiner has in the area of mediation.

  2. The essence of mediation is compromise, i.e., a process in which both parties yield to some degree in the interest of a mutually satisfactory solution.

6.771.2.25  (07-01-2002)
Examiner Discretion

  1. At their discretion, grievance examiners in the IRS are authorized and encouraged to attempt mediation of grievances when circumstances are appropriate, and when, in their judgment, attempted mediation will not compromise their recommendations for resolution if mediation is not successful.

  2. The examiner should be alert to any proposals actually offered or hinted at by either party during the examination of the grievance. In any such instances, the examiner should clearly understand the nature of the compromise involved and what concession is expected in return. The examiner may then relay the possibility of such a mutual settlement to the other party on an entirely speculative basis. If it then appears to the examiner that there is some room for reconciliation, the parties may be brought together, at the examiner’s discretion, for further discussion (or the examiner may continue to act as an intermediary).

  3. Similarly, when considered prudent to do so, the examiner may initiate discussion of a compromise solution. In this case, the examiner will ordinarily first discuss the proposal on a tentative basis with the deciding or reconsideration official, since management must ultimately make the decision on the grievance. However, the examiner has discretion as to which party should be approached first — depending on all the circumstances involved. If the first party approached shows affirmative interest, the examiner should then approach the other party, but still on a speculative basis. If both parties express tentative interest, the parties may be brought together (at the examiner’s discretion) for further discussion, or the examiner may continue to act as an intermediary.

  4. Whether a compromise solution is considered as the result of overtures from either party or at the examiner’s initiative, it must, in the judgment of the examiner, meet the dual test of fairness to the grievant and compatibility with the interests of the Service.

6.771.2.26  (07-01-2002)
Completion of Record

  1. If a grievance is resolved through mediation, the examiner will require the grievant and the deciding or reconsideration official to confirm in writing their satisfaction with the settlement as a basis for closing the record. The examiner will submit the settlement agreement along with the grievance file to the deciding official. Copies of the settlement agreement will be furnished to the employee, the employee’s representative (subject to the restriction of 6.771.1.11(5)), to the appropriate management official or deciding official, and to the Director, Workforce Relations Division (Attn: N:ADC:H:R).

6.771.2.27  (07-01-2002)
Grievance Hearings

  1. The decision to hold a hearing involves the determination that it is the only way or the best way to satisfactorily resolve a complex dispute with serious disagreement of fact involving a number of people.

  2. A hearing is an administrative process designed to clarify and produce further evidence. It is a tool of inquiry and is not a trial or adversary procedure. While certain simple rules of procedures are necessary to expedite the case, the general tone of the proceedings should not be intimidating to the participants — who may be inexperienced in such matters. The following are general requirements for all hearings:

    1. Attendance at a hearing is limited to persons determined by the examiner to have a direct connection with the grievance.

    2. The hearing is conducted in a way that will bring out pertinent facts, including the production of pertinent records.

    3. Rules of evidence are not applied strictly, but the examiner will exclude irrelevant or unduly repetitious testimony.

    4. Decisions on admissibility of evidence or testimony are made by the examiner.

    5. Testimony is under oath or affirmation.

    6. The examiner will give the parties opportunity to cross-examine witnesses who appear and testify.

    7. The examiner may exclude any person from the hearing for conduct or behavior which impedes or obstructs the hearing.

    8. Both parties are entitled to produce witnesses.

    9. The agency will make employees available as witnesses when requested by the examiner after the examiner’s consideration of a request by the employee or the agency.

    10. If the agency determines that it is not administratively practicable to comply with the examiner’s request for a witness(es), it will notify the examiner in writing of the reasons for that determination. If, in the examiner’s judgment, compliance is essential to a full and fair hearing, the examiner may postpone the hearing until such time as the agency complies with the examiner’s request.

    11. Employees of the agency are in a duty status during the time they are made available as witnesses.

    12. The agency will assure witnesses freedom from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony.

    13. The hearing will be transcribed verbatim.

    14. A typical room setting for a hearing is shown in Exhibit 6.771.2-4.

6.771.2.28  (07-01-2002)
Grievance Examiner's Responsibilities

  1. The grievance examiner presides over the hearing and makes any decisions before, during and after proceedings that are necessary to assure an orderly, equitable, and expeditious hearing. More specifically, the examiner is responsible for:

    1. Assuring that the grievant’s designated representative is not allowed access to any official record personal to the grievant without the express written consent of the grievant (see 6.771.1.11(5));

    2. Limiting attendance to persons having a direct connection with the grievance (The grievant, the grievant’s representative, and a designated management representative are entitled to be present during the entire proceeding);

    3. Arranging for attendance of witnesses who are IRS employees, and informing each party of the identity of witnesses for the opposite party;

    4. Soliciting stipulations from both parties, as appropriate;

    5. Assuring an orderly sequence of proceedings;

    6. Making decisions as to relevance of evidence;

    7. Assuring that all parties observe proper standards of behavior;

    8. Questioning witnesses as necessary to clarify any ambiguities or contradictions and to assure that the hearing produces testimony on issues to the extent necessary to arrive at reasonable conclusions of fact;

    9. Confining the proceedings to examination of the specific issues in dispute; and

    10. Deciding whether to permit the parties to submit pre-and/or post-hearing briefs, or their equivalent.

6.771.2.29  (07-01-2002)
Executive Secretary Responsibilities

  1. The executive secretary is the administrative arm and technical advisor to the examiner, and performs under the direction of the examiner. The executive secretary is not involved in decisions resulting in the report of findings and recommendations. The examiner should not assign to the executive secretary any duties that may give the appearance of influencing the outcome of the hearing (for example, dealing with the parties on the relevance of testimony). The executive secretary is responsible for:

    • Making physical arrangements for the hearing

    • Arranging for verbatim transcription of the hearing

    • Administering oath

    • Assisting the examiner in interpretation of relevant Department and Service regulations and instructions

6.771.2.30  (07-01-2002)
Sequence of Hearing

  1. Open the hearing.

  2. Call the hearing to order; state the purpose of the hearing; have all persons in attendance introduce themselves and state their capacity in the hearing; ask those persons who should not be at the hearing to leave the room. (Witnesses may remain during the preliminary statements of examiner.)

  3. Explain that the examiner presides over the hearing and makes any decision necessary to conduct the hearing properly and to assure an equitable, orderly, and expeditious hearing. Explain that the examiner is responsible for developing available facts and for making decisions as to the acceptability of evidence; that strict judicial rules of evidence do not apply; that the examiner may question witnesses to clarify points; and that the examiner will issue a report of findings of fact and recommendations.

  4. Explain the order of procedure as follows:

    1. Opening statement of grievant’s representative;

    2. Opening statement of management’s representative;

    3. Presentation of testimony by grievant’s witnesses and cross-examination by management’s representative;

    4. Presentation of testimony by management’s witnesses and cross-examination by grievant’s representative;

    5. Closing statement by grievant’s representative; and

    6. Closing statement by management’s representative.

  5. Although c. above indicates that the grievant normally proceeds first in a grievance hearing, management proceeds first if at issue is a management claim, assertion or contention. For example, management proceeds first if the issue concerns a specification to a charge in a disciplinary suspension, a statement in support of a rating of less than "adequate" on a performance evaluation factor, or an assertion by management in support of an action taken which is adverse to the employee — such as a charge to AWOL.

  6. If necessary, explain rules of procedure and evidence:

    1. Strict courtroom rules of evidence do not apply. Any relevant testimony will be received; the irrelevant will be excluded by the examiner. Unduly repetitious evidence may also be excluded.

    2. Leading questions are allowable as long as the facts are developed. Hearsay testimony is admissible.

    3. Questions may be asked by the examiner of any participating parties at any time.

    4. Stipulations as to non-disputed segments of the issue should be obtained, or absence of same noted. No evidence need be received on matters stipulated or conceded.

    5. Testimony shall be under oath or affirmation.

    6. Documentary material may be received into the record.

    7. Affidavits by absent witnesses may be accepted.

    8. If management declines to furnish an employee witness requested by the grievant and by the examiner, the reasons for the refusal will be entered in the record.

    9. If, in the examiner’s judgment, compliance with the request is essential to a full and fair hearing, the examiner may postpone the hearing until such time as management complies with the request to produce the witness(es).

    10. The hearing may be terminated if the grievant or the grievant’s representative fails to cooperate after reasonable warning.

    11. The hearing may be suspended if the management representative fails to cooperate, and a new management representative may be requested by the examiner.

    12. The hearing may be recessed for reasonable cause shown by either party.

    13. The examiner will advise the parties of the applicable procedure if a claim of prohibited discrimination is made during the hearing.

    14. All witnesses not being questioned will be excluded from the hearing room, and will be advised not to discuss the case. A person closely associated with the case may remain at the hearing in an advisory capacity to management’s representative, even though expected to testify. Any such testimony should be heard first.

    15. Documents classified as confidential or secret will not be considered during the hearing procedure unless the grievant and the grievant’s representative have access to them. Without proper clearances, confidential tax information and other information restricted by the Service to its employees will not be introduced at the hearing.

  7. If necessary, explain rights and responsibilities of both parties as follows:

    1. Attend Hearing — The grievant and/or the representative both have the right to be present throughout the hearing. (Although the representative may be permitted to be assisted at the hearing by one or two other persons, only the designated representative will be recognized as representing the grievant.)

    2. Testify without Fear — Employees appearing on their own behalf or as witnesses have the right to testify without fear of coercion, discrimination or reprisal.

  8. Declare the hearing closed.

6.771.2.31  (07-01-2002)
Helpful Hints for Conducting Hearing

  1. You should have little or no difficulty with the mechanics of conducting the hearing. However, you are vulnerable to pitfalls and problems because the parties concerned are not ordinarily in a conciliatory frame of mind (see Exhibit 6.771.2-5). The employee, believing he/she has been dealt with unfairly, is usually anxious to prove that management is wrong, while the management representative feels he/she must justify management’s position. These people possess strong feelings and convictions, and possibly attitudes of distrust, and you must skillfully guide them into rational discussions of the matters at issue. There is no substitute for good judgment, and you must exercise it in guarding the quality of the testimony. You must be immune to provocation in the most trying circumstances, when it seems that participants are intent upon testing your authority to the limit. If you are firm and authoritative in presenting your opening remarks, you will leave no doubt in the minds of all participants that you are in charge, without giving the impression that you intend to be restrictive or domineering. You should make it clear that your objective is to conduct an expeditious, orderly, fact-finding hearing—direct and to the point—and that you will provide equal opportunity to all parties to express themselves.

  2. Some suggestions that should prove helpful in your efforts to conduct an effective hearing are:

    1. Prior to the hearing, it is advisable to call a pre-hearing conference to be sure that all parties understand the hearing procedures and evidentiary standards. Obtain stipulations and agreements to the extent possible, and resolve as many facets of the issue as possible. Ideally, attendance at the conference should be limited to the examiner, the executive secretary and a single representative of each party. The sharper the actual issue is defined, the easier it will be to determine the relevance of subsequent testimony.

    2. Do not permit interruptions to testimony. Only the representatives may question witnesses. You, of course, may ask questions at any time. Do not require that questions be directed through you, unless it is necessary for maintaining control of the hearing.

    3. Make certain that all questions are stated clearly for the understanding of all participants.

    4. Lengthy dissertations, more often than not, only prolong the hearing and weigh on the record. If testimony is given in excessive detail, or if it is repetitious or redundant, halt such testimony when it becomes apparent that the point in question has been adequately covered. Require that concise replies be given to questions. If it appears that a witness is being questioned repetitively (harassed), require the interrogator to move forward with the case.

    5. If a document is referenced in testimony and its contents indirectly quoted, have the document read into the record to the extent relevant or submitted as an exhibit to ensure the value and reliability of the evidence.

    6. Have "quick copies" made of vital documents introduced into the record for ready reference by the participants. This will facilitate the progression of testimony when intricate matters are under discussion.

    7. Be sure that all questions asked of witnesses are either answered or withdrawn. Before dismissing a witness, or a technician or consultant who may have been called into the hearing, ask both parties if they have any further questions they would like to ask.

    8. If you find that persons who were not notified to appear as witnesses have essential information not already in the record, their attendance should, if possible, be arranged. In such a case, proceed by postponing discussion of the issue(s) in question until the witness arrives.

    9. If conflicting testimony is given, consider recalling the witnesses to clarify the point. Testimony must be given in the presence of all interested parties. Should you find after closing the hearing that additional information is essential to making your findings, you may, if necessary, call the interested parties together to reopen and resume the hearing.

    10. Since the proceedings are being transcribed, be alert to diffculties the reporter may be having with testimony of a technical nature or with testimony given at a very rapid rate. If mechanical recording equipment is used, speakers must be identified for the record prior to asking questions or giving testimony.

    11. Remember to note, for the record, the nature of evidence that has been excluded as irrelevant or immaterial, the nature of and the agreement of the parties to any off-the-record discussions which occur, and the reason for any recesses or adjournments.

    12. Sometimes the location of an incident is important to an understanding of a situation. Explanations of a complex diagram or picture are often confusing and time-consuming. The hearing may be materially accelerated and clarification gained by visiting the scene. Testimony may be recorded manually in this circumstance.

    13. Be a clock-watcher, and be courteous about lunch breaks and time of adjournment. Remember, too, that some persons involved in the hearing may have car pool or other commitments. When the hearing will require a second session, reconvene the next day if possible.

Exhibit 6.771.2-1  (07-01-2002)
Suggested Format for Reports of Findings and Recommendations

Date:  
   
To: Deciding Official