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

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.

The Handbook is effective upon issuance for agency grievances assigned to an examiner on and after that date. The Human Capital Office (HCO), Workforce Relations Division, LR/ER Strategic Policy Office will distribute copies to designated grievance examiners.

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.

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.

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.

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

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

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).

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

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.

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, 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.

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 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 in 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 process. 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.

If the examiner believes that one or more of the issues are not grievable (pursuant of 6.771.1.8) the 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/ER Strategic Policy Office.

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:

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.

An inquiry may consist of:

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.

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 summarize them and include the summary in the grievance file.

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

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

Types of Evidence are:

Evidence Standard:

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

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 inquiry.

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:

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.

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.

Upon completion of the examination and prior to preparing the report of findings and recommendations, the 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.

Any comments should be submitted to the grievance examiner within 10 days and will be included in the grievance file.

At the conclusion of the inquiry, the examiner will analyze the evidence available and any regulations or policies 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.

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 clear, concise, and straightforward statements that can be understood by all parties to the proceedings.

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

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.

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.

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

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

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

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 appropriate management official, to the LR Specialist, and to the Associate Director, LR/ER Strategic Policy Office (OS:HC:R:P).

The Servicewide Agency Grievance Program Manager, LR/ER Strategic Policy Office (OS:HC:R:P) will review reports of findings and recommendations submitted by grievance examiners. Exhibit 6.771.2-4 outlines the criteria against which the reports will be reviewed.

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

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

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

Staff members of the servicing Labor Relations office, and/or the LR/ER Strategic Policy office are also available to provide assistance to the examiner as indicated in (1) a, b, c, and d above.

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

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 Associate Director, LR/ER Strategic Policy Office (OS:HC:R:P) with a memorandum explaining the status of the grievance. A copy of the memorandum will be provided to the deciding official.

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/ER Strategic Policy Office will forward the Grievance file directly to the examiner.

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 appropriate management official, the LR Specialist, and to the Associate Director, LR/ER Strategic Policy Office (OS:HC:R:P).

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 informal resolution.

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.

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).

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 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.

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 interest of the Service.

If a grievance is resolved through an informal settlement, the 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 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/ER Strategic Policy Office (OS:HC:R:P).