6.771.2  Grievance Examiner Handbook

Manual Transmittal

February 05, 2013

Purpose

(1) This transmits a complete revision of the Table of Content and text for IRM 6.771.2 Grievance Examiner Handbook.

Material Changes

(1) This IRM has been updated to include:

  1. changing all references of the LR/ER Strategic Policy Office to LR Strategy and Negotiations Office throughout this IRM;

  2. deleting Section 6.771.2.9, Types of Inquiry, since this information is already included in Section 6.771.2.3.3(1);

  3. renumbering remaining sections of the IRM; and

  4. combining the sections on Informal Settlement and Grievance Examiner Discretion (previously 6.771.2.22 and 23.

Effect on Other Documents

This IRM supersedes IRM 6.771.2, Grievance Examiner Handbook, dated June 14, 2011.

Audience

All Operating Divisions and Functions.

Effective Date

(02-05-2013)

Signed by
Phyllis Brown
Director, Workforce Relations Division

6.771.2.1  (02-05-2013)
Overview

  1. This Grievance Examiner Handbook provides assistance to those who have been designated as grievance examiners to inquire into grievances filed under the IRS Agency Grievance System (AGS), 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 a grievance examiner on and after that date. The Human Capital Office (HCO), Workforce Relations Division, LR Strategy & Negotiation Office will distribute copies to designated grievance examiners.

6.771.2.2  (11-04-2008)
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. 6.771.1.5(9) 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  (02-05-2013)
Grievance Examiners

  1. Requirements for Grievance Examiners in the IRS are detailed in the following subsection.

  2. Selection of grievance examiners is based upon demonstration of personal attributes of integrity, discretion, reliability, objectivity, impartiality, and resourcefulness. 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. Grievance 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.

6.771.2.3.1  (02-05-2013)
Qualification Requirements

  1. Grievance Examiners are either current IRS employees in a GS-13 or above position or qualified contract employees.

  2. They must have at least four (4) years of progressively responsible experience in administrative, managerial, professional, investigative, or technical work that has demonstrated the possession of:

    1. The personal attributes essential to the effective performance of the duties of an examiner, including integrity, discretion, reliability, objectivity, impartiality, resourcefulness, and emotional stability.

    2. A high degree of ability to identify and select appropriate sources of information; collect, organize, analyze, and evaluate information; and arrive at sound conclusions on the basis of that information.

    3. A high degree of ability to analyze situations; make an objective and logical determination of the pertinent facts; evaluate the facts; and develop practical recommendations on the basis of the facts.

    4. A high degree of ability to recognize the causes of complex problems and apply mature judgment in assessing the practical implications of alternative solutions to those problems.

    5. A high degree of ability to interpret and apply regulations and other complex written material.

    6. A high degree of ability to communicate effectively orally and in writing, including the ability to prepare clear and concise written reports.

    7. A high degree of ability to deal effectively with individuals and groups, including the ability to gain the cooperation and confidence of others.

  3. Grievance examiners should possess a good knowledge of the relationship between personnel administration and overall management concerns, and the principles, systems, methods, and administrative machinery for accomplishing the work of the organization.

  4. Grievance examiners should have completed a grievance examiner's course conducted either by OPM or IRS.

  5. Criminal Investigators will not be used without obtaining the approval of the HCO Workforce Relations Division, LR Strategy & Negotiations Office. Employees who work in Employee Relations or in Labor Relations are excluded because of the nature of their assignments.

  6. A former Federal employee who, at the time of leaving the Federal service, was serving in a GS-13 or above position, or its equivalent, and who meets all of the other requirements specified may also qualify as a grievance examiner. A former Federal employee who, at the time of leaving the Federal service, meets all of the requirements except completion of the prescribed training course may be used as an examiner upon satisfactory completion of the training course.

6.771.2.3.2  (02-05-2013)
Assignment of Examiners

  1. Selection will be made from the current cadre of grievance examiners maintained by the HCO, Workforce Relations Division, LR Strategy & Negotiations Office according to availability and geographic location.

  2. Within five (5) days of receipt of the grievance examiner's name, the servicing Labor Relations Specialist will prepare a designation letter (Exhibit 6.771.2-1) to officially appoint the grievance examiner and send it to the deciding official for signature. A copy of the letter will be sent to the grievance examiner's second or third level supervisor, as appropriate. The grievance file will be sent directly to the examiner. [NOTE: Grievance files will be sent electronically whenever possible.]

  3. The grievance examiner selected to conduct an inquiry into a grievance will not occupy a position that is directly or indirectly, under the jurisdiction of an official who is involved (or who could become involved) in the grievance.

  4. When an internal grievance examiner is designated for a grievance within the Service, the grievant's employing office pays all expenses. When the grievance examiner is designated for an agency grievance in another Treasury bureau, the other bureau is responsible for the expenses.

6.771.2.3.3  (02-05-2013)
Role of the Grievance Examiner

  1. The role of the grievance examiner is one of facilitating the resolution of a grievance fairly and objectively through the means of fact-finding, mediation (where appropriate), and recommendation. The grievance examiner will conduct an inquiry of a nature and scope appropriate to the issues involved in the grievance. At the grievance examiner's discretion the inquiry may consist of:

    • The securing of documentary evidence

    • Personal interviews

    • A group meeting

    • Any other techniques or combination of the above listed techniques deemed appropriate

  2. For a Grievance: The grievance examiner will see that the grievance file contains all documents relating to the grievance. Upon completion of the inquiry and prior to writing the report, the grievance examiner will make a duplicate grievance file available to the employee and to the appropriate management official for review and comment as to the conduct of the inquiry. The complete comments of each, including all exhibits, will be included in the file. The grievance examiner will determine the time limits [usually 10 work days] for reply consistent with the overall objective of submitting a recommendation.

    After comments are received, or after the allotted time has past, the grievance examiner will prepare a Report of Findings and Recommendations within 60 work days of receipt of the grievance file, and submit it along with the grievance file to the deciding official. The grievance examiner will also furnish copies of the report to the employee, the appropriate management official, the LR Specialist, and the Associate Director, LR Strategy & negotiations Office (OR:HC:R:N).

  3. For Panel Review: Once assigned as the neutral third person for a Panel Review, and no later than 10 work days after the assignment of the last panel member, the panel members will independently review the case file and convene a conference call to discuss the case and recommend resolution. [At least 2 members must approve the recommendation.]

    The panel will prepare a written recommendation and it will be sent to the servicing LR office for review. If there are no statutory, regulatory, or policy prohibitions or conflicts the outcome will become final and binding to all parties and the grievance will be closed.

  4. For Mediation: If a grievant or manager requests mediation, the servicing LR specialist will contact the LR Strategy & Negotiations Office and a Mediator will be assigned within 10 days of receipt of the request. Once a Mediator is assigned, the servicing LR specialist will forward a copy of the case file to the mediator and a mediation session will be scheduled within 10 work days. Once the mediation session is held, and if a resolution is achieved, a settlement agreement will be documented in writing, signed by both parties, and will be reviewed by the servicing LR office for any statutory, regulatory, or policy violations. The LR review will be completed within five (5) days. If good-faith efforts are unsuccessful, the Mediator will end the session and will immediately prepare a memo stating the issue was not resolved through ADR and provide a copy to the supervisor, grievant, and servicing LR office. Upon receipt, the grievant may continue with the grievance process. [See IRM 6.771.1.10 for further information.]

6.771.2.3.4  (11-04-2008)
Grievance Files

  1. Grievance files are subject to the Privacy Act of 1974 (PL 93-579), 5 U.S.C. Section 552a, as amended, including but not limited to the provisions thereof relating to:

    1. Relevance of information maintained;

    2. Notifying the principal (i.e., the grievant) who is asked to supply information required by the Act;

    3. Safeguarding the confidentiality of the records;

    4. Access to records;

    5. Conditions of disclosure; and

    6. Accounting of certain disclosures.

  2. The notice requirement referred to in (1)b. above will be fulfilled by inclusion of the Privacy Act Statement on Form 5877, Agency Grievance and Authorization for Representative's Access to Official Records.

  3. The grievance file must not contain any document that cannot be made available to the employee in accordance with the provisions of IRM 11.3.2. Recorded information relating to employees other than the grievant may be included in the grievance file only when properly "sanitized" . Preparation of the redacted or sanitized documentation is the responsibility of the LR Specialist.

  4. The contents of grievance files may not be disclosed to, nor discussed with, persons not officially concerned with the grievance. A grievant's designated representative will be provided access to official records, personal to the grievant, only upon express written authorization from the grievant. Request for access from any other source will be referred to the appropriate Disclosure Officer.

  5. It is important that grievance files are complete since no decision on or resolution of a grievance may be based on information that is not part of the grievance file.

6.771.2.3.5  (02-05-2013)
Contents of the Grievance File

  1. The grievance file will consist of:

    1. Form 5877;

    2. Any evidence or other information presented by the grievant;

    3. Any evidence developed by the appropriate management official; and

    4. Any other communications on the grievance between the grievant and management, including, but not limited to, appeals and decisions pertaining to the disallowance of representative.

  2. When the grievance is referred to a grievance examiner, the grievance file will be assembled in chronological order and will consist of all information described in (1) above, plus;

    1. A copy of the designation of grievance examiner letter;

    2. Any evidence developed by the deciding official;

    3. Any other communications on the grievance between the Grievant and management, including, but not limited to, appeals and decisions thereon for grievability and/or timeliness determinations; and

    4. Notice of decision on the grievance.

  3. When the grievance examiner sends copies of the file to the grievant and the appropriate management official, for review and comment, the file will have all information described in (1), and (2) above, plus:

    1. Documentary evidence obtained by the grievance examiner;

    2. Signed statements of persons interviewed by the grievance examiner;

    3. Signed summary of any group meeting conducted by the grievance examiner; and

    4. Any new or amended authorization from grievant for representative's access to official records.

      Note:

      Documents sent to the appropriate management official may consist of only a copy of the authorization in d. above.

  4. When the grievance examiner returns the file to the deciding official, the file will consist of all information described in (1) through (3) above, plus:

    1. Signed copies of comments to the contents of the file; and

    2. The grievance examiner's Report of Findings and Recommendations.

  5. Immediately after the deciding official acts on the Report of Findings and Recommendations, the file will have all information described in (1) through (4) above, plus:

    1. Any new or amended authorization from the grievant for his representative's access to official records.

    2. A copy of the final decision letter.

  6. When a grievance is cancelled in accordance with IRM 6.771.1.13 at any stage of the procedure, the letter terminating the grievance and the reasons relied upon will be included in the file.

6.771.2.4  (02-05-2013)
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 6.771.1.4(1).

  2. The grievance examiner must assure that the Form 5877 has been signed authorizing the designated representative access to official records.

6.771.2.5  (11-04-2008)
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. The examiner should consult the Labor Relations Specialist designated to assist and to provide advice and guidance in this area.

6.771.2.6  (02-05-2013)
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 grievance 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, or any combination of these. The grievance examiner must make any evidence used as a basis for the recommendation(s) a part of the grievance file; conversely the grievance 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 grievance examiner should study and become familiar with IRM 6.771.1 and this Handbook.

6.771.2.7  (02-05-2013)
Definition of Issues

  1. The grievance, when assigned to the grievance examiner, should clearly set forth the issues discussed up to that point and the personal relief sought by the employee.

    1. If, upon review by the grievance examiner, the grievance is not clear -- either as to the issues or the relief sought -- the grievance examiner may request a written memorandum of understanding from the parties to the grievance.

    2. If issues are raised which were not raised in Step 1, the examiner will bring this to the attention of the deciding official.

    3. If the issues are integral to the grievance, the grievance examiner may stay the inquiry, if all parties agree, until these new issues have progressed through the earlier steps of the grievance process.

    4. If the issues are clearly separable from the grievance at hand, or if all parties do not agree to stay the inquiry, the grievance 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.

    5. The grievance examiner may choose to ask the parties if, by mutual agreement, the new issue can be included for the sake of complete resolution of the case.

  2. If the grievance examiner believes that one or more of the issues are not grievable (pursuant of 6.771.1.8) the grievance examiner will notify the deciding official in writing of that finding. Copies will be provided to the grievant, the LR Specialist, the appropriate management official, and the Associate Director, LR Strategy & Negotiations Office.

    1. If the deciding official agrees with the grievance examiner's finding regarding grievability, a formal non-grievability determination will be made pursuant to 6.771.1.6(3). In this case the examiner may proceed with the inquiry on any issue(s) which are grievable. If there are no grievable issues the inquiry will be stayed pending a final determination on the grievability of the case by the LR Strategy & Negotiations Office.

    2. If the deciding official disagrees with the grievance examiner's finding regarding grievability, the deciding official will so notify the grievance examiner in writing -- with copies provided to all parties listed in (2) above. In this case, the grievance examiner will proceed with the inquiry, and may refer to the initial finding of non-grievability in the report.If the deciding official agrees that the issues are not grievable, or not timely filed, he may choose to ask the grievance examiner to proceed in attempting to resolve the issues.

6.771.2.8  (02-05-2013)
Preliminary Analysis

  1. When the grievance is clear as to the issues and the relief sought by the employee, the grievance 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 decisions, etc.), or by published agency policy 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 grievance examiner considers necessary are available in the grievance file and the grievant and management are in agreement on the facts, the grievance examiner may be able to complete the analysis and report without the necessity of a personal visit.

6.771.2.9  (02-05-2013)
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, non-selection for training opportunities, and reprimands and similar disciplinary actions.

    4. 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.

6.771.2.10  (02-05-2013)
Conducting the Inquiry

  1. Securing of documentary evidence may be done on site or sent to the grievance examiner upon request. The grievance 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 grievance examiner should summarize them and include the summary in the grievance file.

6.771.2.10.1  (02-05-2013)
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 grievance examiner's identity, the purpose of the interview, and that a statement/summary of the interview will be made and will become a part of the grievance file. The employee should also be informed that he will be asked to sign the statement/summary, noting any exceptions.

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

  3. The grievance examiner usually will interview the aggrieved employee first, and then interview the person(s) 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 grievance 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 provides no additional names, the grievance 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 grievance examiner. Seasonal employees who are in a non-pay status may be interviewed by telephone rather than waiting until they return to duty.

  4. The grievance examiner is acting in an official capacity, and employees must respond to questions of the grievance 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 grievance examiner should strive to get specific facts, not generalities. Care must be exercised not to put words in the mouths of persons interviewed.

  5. During, or 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(s), 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. Information given off the record cannot be used as a basis for the grievance examiner's recommendation.

6.771.2.11  (02-05-2013)
Evidence

  1. Formal rules of evidence do not apply to the grievance examiner's inquiry.

  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 point.

  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 ground 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 it's intrinsic value. 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 own judgement 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 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 grievance examiner should decide whether the penalty was reasonable, proportionate to the offense, and within the guidelines set by the penalty determination guide.

6.771.2.12  (02-05-2013)
Burden of Proof

  1. The concept of burden of proof ordinarily applies 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 grievance examiner's recommendation is to be based on the findings of inquiry.

  3. There are exceptions to this general rule 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.

    3. Any allegations by the grievant must be supported by evidence.

  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 grievance examiner is unable to establish the truth of the allegation by independent inquiry, then the allegation must be judged to be without merit.

6.771.2.13  (02-05-2013)
Grievance File

  1. The grievance 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 grievance examiner for inquiry, and any additional evidence obtained during the examination which will be considered in preparing findings and recommendations.

  2. Upon completion of the examination and prior to preparing the Report of Findings and Recommendations, the grievance examiner will make a duplicate copy of the grievance file available to the employee. The grievance examiner will send the appropriate management official copies of the interview summaries and new documentary evidence for review and comment as to the conduct of the inquiry.

  3. Any comments should be submitted to the grievance examiner within a reasonable amount of time (depending on whether the case file is electronic or a hard copy) and will be included in the grievance file. The grievance examiner may grant an extension of time when necessary. [NOTE: If comments are not received, the grievance examiner may issue the report.]

6.771.2.14  (02-05-2013)
Analysis and Findings

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

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

6.771.2.15  (02-05-2013)
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 accordance with the law, regulations, and applicable agency policy, and was fairly and reasonably applied without capriciousness or arbitrariness, no remedial action would be recommended unless the inquiry uncovered that mitigating factors were present that were not previously considered.

  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 grievance examiner will formulate recommendation(s) which the grievance 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/or offensive.

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

6.771.2.16  (02-05-2013)
Examiner's Report

  1. The grievance 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 6.771.2-2 for suggested content and format of a report, and Exhibit 6.771.2-3 for use of exhibits and enclosures. The report should contain:

    1. A brief summary of the grievance.

    2. An analysis of each issue raised and the evidence or facts leading to the finding on each.

    3. A statement of findings on each issue raised.

    4. Recommendation(s) for resolving the grievance.

  2. The grievance examiner will submit the completed report along with the grievance file to the deciding official. The grievance examiner will also furnish copies of the report to the employee, to the appropriate management official, to the LR Specialist, and to the Associate Director, LR Strategy & Negotiations Office (OS:HC:R:N).

  3. The Servicewide Agency Grievance Program Manager, LR Strategy & Negotiations Office (OS:HC:R:N) will review all Reports of Findings and Recommendations submitted by grievance examiners. Exhibit 6.771.2-4 outlines the criteria against which the reports will be reviewed.

6.771.2.17  (02-05-2013)
Action After Recommendations

  1. Once the grievance examiner has submitted the Report of Findings and Recommendations to the deciding official, with copies to the other parties, the grievance examiner's duties in the case are completed.

  2. The grievance examiner will be furnished a copy of the final decision letter issued by the deciding official.

6.771.2.18  (02-05-2013)
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 grievance examiner in any of the following ways:

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

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

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

    4. Assisting with scheduling and making physical arrangements for any interviews, or group meetings required by the examiner.

6.771.2.19  (02-05-2013)
Allegations of Discrimination

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

    1. The grievant may make a formal allegation of discrimination and the grievance 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 (6.771.1.8(3); or

    2. The grievant may withdraw the complaint of discrimination, without prejudice, and the grievance 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 grievance examiner will send the grievance file to the Associate Director, LR Strategy & Negotiations Office (OS:HC:R:N) 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 Associate Director, LR Strategy & Negotiations Office will forward the grievance file directly to the grievance examiner.

6.771.2.20  (02-05-2013)
Grievance Withdrawn

  1. The grievant must provide a written statement that the grievance is being withdrawn. This statement will close the file. The grievance 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 appropriate management official, the LR Specialist, and to the Associate Director, LR Strategy & Negotiations Office (OS:HC:R:N).

6.771.2.21  (02-05-2013)
Informal Settlement

  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 grievance 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 informal resolution.

  2. The essence of an informal settlement is compromise, i.e., a process in which both parties yield to some degree in the interest of a mutually satisfactory solution. At their discretion, grievance examiners in the IRS are authorized and encouraged to attempt informal resolution of grievances when circumstances are appropriate, and when, in their judgement, attempted settlement will not compromise their recommendations to resolution if it is not successful.

  3. The grievance 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 grievance examiner should clearly understand the nature of the compromise involved and what concession is expected in return. The grievance 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 grievance examiner that there is some room for reconciliation, the parties may be brought together, at the grievance examiner's discretion, for further discussion (or the grievance examiner may continue to act as an intermediary).

  4. Similarly, when considered prudent to do so, the grievance examiner may initiate discussion of a compromise solution. In this case, the grievance examiner will ordinarily first discuss the proposal on a tentative basis with the deciding official, since management must ultimately make the decision on the grievance. However, the grievance 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 grievance 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 grievance examiner's discretion) for further discussion, or the grievance examiner may continue to act as an intermediary.

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

6.771.2.22  (02-05-2013)
Completion of Record

  1. If a grievance is resolved through an informal settlement, the grievance examiner will require the grievant and the deciding official to confirm in writing their satisfaction with the settlement as a basis for closing the record. The grievance 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, to the appropriate management official, to the LR Specialist, and to the Associate Director, LR Strategy & Negotiations Office (OS:HC:R:N).

Exhibit 6.771.2-1 
Designation Letter

Date:
(Name)
IRS (Organization Codes)
(Address)
(City/State/Zip Code)
Dear __________________________:
This confirms your designation as a grievance examiner for the agency grievance filed by (employee name) on (date).

Pursuant to Internal Revenue Manual 6.771.2.3.2(2), the agency grievance file(s) have been provided for your review. Should you have any questions regarding the information contained within the agency file, you may contact (Name), Labor Relations Specialist, (Office), at (Phone Number).
The following travel codes are provided for your use in attending interview meetings that may be scheduled during your inquiry: (Travel Codes).
Sincerely,
(Deciding Official's Name)
(Title)
Business Unit

Exhibit 6.771.2-2 
Suggested Format for Reports of Findings and Recommendations

Date:  
   
To: Deciding Official
From: Grievance Examiner
Subject: Report of Findings and Recommendations in the Grievance of (Name/Location)
   
Introduction
This section should be brief. State the authority for your inquiry. Identify the employee who presented the grievance by name, title, grade, and organizational location, and give the date the grievance was filed. Discuss how the case developed. It should be presented as a series of events, written in a narrative style that described the action, or failure to act, that gave rise to the grievance.
Give a general description of your method(s) of inquiry. List by name and title all persons interviewed, and/or in attendance at group meetings. Include names of representatives accompanying the employee(s). For example: John Jones, grievant, accompanied by representative James Smith, private attorney. Indicate that each party interviewed was given an opportunity to review your summary of the interview, to comment upon it, and that any such comments received are included in the grievance file. Include an explanation of the non-availability of relevant records or of prospective interviewee(s).
Indicate that copies of the grievance file were made available to the grievant, the appropriate management official and/or to the deciding official for review and comment as to the conduct of the inquiry and that their comments, if any, are included in the grievance file.
   
Issues and Requested Relief
State the issue(s) in a clear, concise manner in the form of a question. Some examples are: Whether the rating given the grievant for"Dependability" should be raised from a 3 to a 4. Whether the grievant’s 3-day suspension for discourtesy to a taxpayer was for such cause as would promote the efficiency of the service. If the issue is particularly complicated or broad, break it down into more than one question. For example: a broad issue would be whether the grievant was treated fairly by the ranking panel. This issue can be further broken down into questions such as: Did the panel use the proper criteria in evaluating the grievant. Were the criteria fairly applied to the grievant? Did the panel give appropriate consideration to the grievant’s application and associated documents? Specify the relief sought by the grievant.
 
Analysis and Conclusions
This section should fully discuss and answer all of the issues and questions that gave rise to the grievance or that were raised by either party as the case developed. It should be written in a narrative style that will facilitate the reader’s understanding of the examiner’s reasoning that links facts with regulation, precedent, or logic in a manner that can lead to conclusions as to the preponderance of evidence or substantial evidence, as appropriate. Be sure to cite the appropriate references such as the merit promotion program, promotion practices, standards of conduct, disciplinary practices, regulations (TPMM, IRM, CFR) and/or third party decisions (MSPB, Comptroller General (CG)). Also, cite the material in the grievance file, such as, "as pointed out in our interview (Tab 25, page 2)" or "the grievant was informed by letter (Tab 3)," as you refer to it in your discussion.
The conclusions drawn should be based soundly on the facts and reasoning presented. Conclusions not related to understanding the case or to the recommendations reached should not be included. They may be gratuitous and potentially offensive.
Recommendations
This section should contain positive recommendations of courses of action that the deciding official can accept and execute to resolve the case. Recommending statements should relate clearly to what has already been presented with little or no repetition, reference, or augmentation needed.
Recommendations must be consistent with law, regulation, and Comptroller General Decisions; and within the Administrative authority of the Agency.
Recommendations may sustain, reverse, or modify agency action, or may grant total, partial, or no relief requested.
Recommendations should be limited to significant courses of actions pertinent to the case. Care should be taken to avoid general program management recommendations that would tend to be gratuitous and offensive.

Exhibit 6.771.2-3 
Use of Exhibits and Enclosures

All attachments to a case report should be exhibits.
Exhibits should be tabbed and numbered or lettered serially. The criteria of acceptability are neatness and ease of reference in the text of the report.
Each case report should include an index of exhibits listed in the order in which they are attached. This index will be placed immediately at the front of the basic report and bear a tab with the word "Index." Generally speaking, it is best to attach exhibits in reverse chronological order (newest documents on top), but exceptions may be made for clarity and ease of use.
Normally, published regulations that can be expected to be available to the deciding official need not be attached; rather, their meaning and pertinence should be explained in the body of the report and the portion of the regulation relied on should be accurately cited. An exception may be made for convenience of the deciding official in such instances as: (1) there have been changes in the regulation, the timing of which may have a bearing on the case; or (2) a short extract of a regulation that is vital to the reasoning process may assist in the ready understanding without risk of taking that portion out of the context of the total regulation.

Exhibit 6.771.2-4 
Criteria for Reviewing the Report of Findings and Recommendations

I. Introduction
  Has the grievance examiner stated the authority for the inquiry?
  Has the grievance examiner identified the course(s) of inquiry selected and included the names and titles of the individuals contacted?
  Has the file been referred to the parties for comment and have the comments been included in the grievance file?
  Has enough factual information been presented so that the reader understands what gave rise to the grievance?
  Are the relevant contentions of the parties presented?
II. Issues and Requested Relief
  Have the issues been stated in a clear, concise manner in the form of a question?
  Has the grievance examiner included a statement of the personal relief requested by the grievant?
III. Analysis and Conclusions
  Has the grievance examiner answered all the questions that were raised?
  Are there any conclusions drawn that are unsupported by the facts or evidence?
  Has irrelevant or extraneous information been included?
  Has the grievance examiner researched appropriate regulations, laws, agency policy, and cited them accordingly?
  Are there definitive statements on which issues are sustained and/or denied and why?
IV. Recommendations
  Are they based on the findings in the above analysis?
  Is there mitigation for the sake of mitigation?
  Do they avoid program management recommendations that would tend to be gratuitous and offensive?
  Are there reasons for recommending remedies different from the personal relief requested by the grievant?

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