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

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

This IRM provides instructions and guidelines for the timely and equitable consideration of grievances of Non-Bargaining Unit (NBU) employees of the Internal Revenue Service (IRS). A copy of this IRM will be provided to any eligible employee (as defined in IRM 6.771.1.7) who has a grievance that falls within the coverage of the Agency Grievance System (AGS) as defined in IRM 6.771.1.8.

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

Employees may designate a personal representative at any step of the Agency Grievance System procedure. The designation must be in writing and must be submitted to the supervisor/management official involved in the process. Approval/disapproval of an IRS employee serving as representatives will be made by the supervisor/manager who receives the designation.

All grievances will be addressed within the Business Unit, Operating Division, or equivalent levels. If the Commissioner or equivalent of that unit (e.g., the Commissioner of the SB/SE, Chief Information Office, etc.) is the first step official, there will be only one step in the Agency Grievance Process.

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

With advance approval from the appropriate manager(s), the Grievance and his/her representative, if an IRS employee, are entitled to a reasonable amount of administrative time to meet and discuss, prepare, and present the grievance. Total time to meet, discuss and prepare the grievance should normally not exceed four (4) hours. Advanced approval must also be obtained to use Government equipment, e.g., franked envelopes & stationary, word processing and facsimile machines, printers and copy machines.

Alternative Dispute Resolution (ADR) –is a catchall term that describes a number of methods used to resolve disputes out of court, including negotiation, conciliation, mediation etc. The common denominator of all ADR methods is that they are faster, less formalistic, more cost effective and often less adversarial than a court trial.

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

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

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

Deciding Official (DO) – A management official designated to decide the formal grievance. The deciding official must be at the lowest level of IRS management who has the authority over, and can decide on, the matter being grieved. This is usually the official who made the decision, committed the act or failure to act, or caused the occurrence forming the basis of the grievance.

Employee – (A) an individual employed in an agency; or (b) whose employment in an agency has ceased yet whose remedy can be provided.

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

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

Grievance Examiner – an individual who conducts an inquiry and recommends a course of action in any grievance which has not been resolved prior to receipt by the Deciding Official. (see IRM 6.771.2)

Grievance file – means a separate file which contains all documents related to the grievance, including, but not limited to, all correspondence, any statements of witnesses, records or copies thereof, and the decision.

Group Grievances – when a group of employees filing a grievance have identical issues, the grievance may be combined and heard as one complaint. The decision will be binding on all employees. The group will select one case for processing under the provisions of the Agency Grievance Procedure. That grievant and his/her representative will present the case and participate in meetings, discussions, and interviews on behalf of the group.

Mediation – is a voluntary process in which a neutral third party helps two (or more) parties hear, sort through and understand each other’s issue(s) and concern(s). Mediation is designed to encourage open communication to allow the parties to achieve resolution.

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

Non-Bargaining Unit Employee NBU - an employe who is not included in an exclusive bargaining unit as determined by the Federal Labor Relations Authority

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

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

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

The Chief Human Capital Officer (CHCO) will:

The servicing L/ER Specialist will:

Supervisors who are presented with an employee problem should determine timeliness and grievability of the matter. If there are any concerns about the employee's representative, that should be addressed at the 1st Step as well. IF there are no threshold issues, the supervisor should make a determined effort to resolve the grievance. If the issue is outside of the supervisor's authority and/or responsibility, she/he must contact the official(s) who may be able to address and/or resolve the issue. Supervisors and managers must contact their servicing L/ER specialist for advice and assistance while processing the grievance. Supervisors/managers must also forward a copy of the grievance (either the employee's written grievance or the grievance as described by the supervisor) to the servicing LR office so that an ALERTS case file is established.

Included:

Excluded:

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

Employees cannot file an EEO complaint and an agency grievance on the same issue at the same time (whichever complaint is filed first prevails), [NOTE: According to (b). Below, employees cannot file EEO complaints via the Agency Grievance System.] If an EEO complaint was filed and later not accepted by the EEO office, employees may file a grievance within 15 days after the receipt of the EEO written notice.

The AGS excludes matters listed below.

Employees must present a work-related problem(s) and/or issue(s) to their immediate supervisor within 15 days of the date of the act or event giving rise to the problem, or the date the employee became aware of the act or event. When calculating time limits, the day of an action or receipt of a document is not counted. (See Note below.)

Exception: Grievances on Annual Performance Ratings must be presented at the 2nd Step with the Reviewing Official.

Within 15 days after the receipt of the grievance, the supervisors must communicate (either face to face or via conference call) with the employee and the employee's representative, and prepare a response memorandum, which briefly summarizes the problem, the consideration given, the conclusions reached, a decision on the issue, and if any remedy should be granted.

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If the grievance is not resolved at Step 1, either party may discuss with the other available ADR processes as an alternative to the Formal Grievance process. If either party requests ADR, it will be used.

If the parties use ADR, they must choose one of the following processes:

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

Any grievance involving formal disciplinary action will start at the 2nd Step of the AGS process. The procedural rights of reply (oral and/or written) available to the employee prior to affecting a formal disciplinary action (e.g., suspension of 14 days or less) is considered to the equivalent of discussion at the first-step Informal Grievance.

After the receipt of the 1st Step response, the employee retains the right to advance the grievance to the Deciding Official (second line supervisor), who receives, adjudicates, and renders the final Agency decision.

Within 5 days of receipt of the 1st Step response or unresolved mediation notice, or the date of the receipt of the decision letter in a formal disciplinary action, the employee may submit the grievance, in writing, to the Deciding Official. New issue(s) that were not considered in the 1st step may not be considered at the 2nd Step. The grievance must be presented by attaching the previous IRS Form 5877 with a cover memorandum and all other correspondence. The grievance must state that the matter was not resolved at the 1st Step and/or during the problem-solving/ADR process, and that the grievant has not filed an EEO complaint on the same or similar issue.

Upon receipt, the Deciding Office will review the Grievance and will discuss the grievance with the employee (and his/her representative, if applicable) and attempt to resolve the issue. If the grievance remains unresolved the Deciding Office will notify the grievant in writing within fifteen (15) work days of receipt of the grievance that he/she may request a grievance examiner to conduct an inquiry into the grievance. The grievant will then have 5 work days from receipt of the Deciding Official's notification to request, through the Deciding Official, the designation of a grievance examiner. (See IRM 6.771.2.4)

If a Grievance Examiner was used, the decision should be issued within 10 days after the receipt of the report of findings and recommendation(s) from the Grievance Examiner. If no Grievance Examiner was utilized, the decision should be issued within 10 days of receipt of the Formal Grievance. Either way, the decision is final, binding, and not subject to further review.

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

Incomplete Grievances: If grievances are incomplete, they will be returned. Grievants may resubmit completed grievances within 3 days after the receipt of the incomplete grievance from the PRB.

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

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

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

A grievance will be cancelled of rejected at the Formal Stage for any of the following reasons:

Employees may appeal any threshold issue discussed in (1) above or denial of a representative issue to the following address, via fax or mail (post marked), within 10 days after the receipt of the notice from his/her supervisor:

After careful consideration of all available information, if the Associate Director, LR/ER Strategic Policy concurs with the supervisor/manager, the case will be closed. IF the Associate Director, LR/ER Strategic Policy decides in favor of the grievant, the case will be returned to the supervisor/manager so that the merits can be addressed. The LR/ER Strategic Policy decision on threshold issues is final, binding and not subject to further review. A written response will be prepared for all AGS appeals of threshold issues and/or denial of a representative within 15 days of receipt of the employee's appeal. The original will be sent to the grievant and copies of the supervisor and the servicing Labor Relations Specialist for inclusion in the grievance file.