ARTICLE

42.

Section 1 - Purpose

The purpose of this Article is to provide a mutually acceptable method for prompt and equitable settlement of grievances. This is the exclusive procedure for resolving grievances except as provided in Sections 2 and 3.

Section 2- Definition

A. A grievance means any complaint by an employee(s) or the Union concerning any matter relating to employment, any complaint by an employee, the Union, or Management concerning the interpretation or application of this Agreement and any supplements or any claimed violation, misinterpretation or misapplication of law, rule, or regulation affecting conditions of employment.

B. This Article shall not govern a grievance concerning:

1. Any claimed violation relating to prohibited political activities (Subchapter III of Chapter 73 of Title 5);

2. Retirement, life insurance, or health insurance;

3. A suspension or removal in the interest of national security under Section 7532 of Title 5;

4. Any examination, certification or appointment; or

5. The classification of any position which does not result in the reduction in grade or pay of an employee.

C. Under Title 38 Section 7422, the following exclusions also apply:

1. Any matter or question concerning or rising out of professional conduct or competence such as direct patient care or clinical competence,

2. Any matter or question concerning or arising out of peer review, and/or

3. Any matter or question concerning or arising out of the establishment, determination, or adjustment of employee compensation under this Title.

Note 1: Any questions concerning the extent of the exclusions in Paragraphs C1-C3 will be resolved in accordance with the VA Partnership Council's Guide To Collective Bargaining and Joint Resolution of 38 USC Section 7422 Issues, which provides that these exclusions will be applied narrowly and only to those matters clearly and unequivocally involving direct hands-on patient care or clinical competence.

Note 2: The language in Paragraph C in this Section shall only serve to preclude a grievance where the Secretary, or a lawfully appointed designee of the Secretary (currently the Under-Secretary for Health), determines in accordance with 38 USC 7422 that the grievance concerns or arises out of one or more of the three (3) items listed above. Any determination under this language by the Secretary or his/her designee is subject only to judicial review pursuant to 38 USC 7422(c).

Section 3 - Other Applicable Procedures

A. As provided for in 5 USC Section 7121, the following actions may be filed either under the statutory procedure or the negotiated grievance procedure but not both:

1. Actions based on unsatisfactory performance (5 USC Section 4303),

2. Adverse actions (5 USC Section 7512), and/or

3. Discrimination (5 USC Section 2302(b)(1)).

B. Nothing in this Agreement shall constitute a waiver of any further appeal or review rights permissible under 5 USC Chapter 71.

C. An employee shall be deemed to have exercised her option under this Section when she timely initiates an action under the applicable statutory procedure or files a timely grievance in writing under the negotiated grievance procedure, whichever event occurs first. Discussions between an employee and an EEO counselor would not preclude an employee from opting to select the negotiated grievance procedure if the grievance is otherwise timely. For purposes of an EEO action, the time limit for filing a grievance should be extended if the additional time would help facilitate the resolution of the employee's complaint or contribute to a full and complete investigation of the facts.

Section 4 - Jurisdiction

If either party considers a grievance nongrievable or nonarbitrable, the original grievance will be considered amended to include this issue. The Department must assert any claim of nongrievability or nonarbitrability no later than the Step 3 decision.

Section 5 - Representation

The only representative an employee may have under this procedure is a union representative approved in writing by the Union. An employee may pursue a grievance without union representation, but the Union may elect to attend each grievance step. The Union will be provided notice immediately when any grievance is filed as well as given advance notice of each meeting.

Section 6 - Informal Resolutions

Most grievances arise from misunderstandings or disputes which can be settled promptly and satisfactorily on an informal basis. The use of ADR is encouraged. The parties agree that every effort will be made to settle grievances at the lowest possible level. Inasmuch as dissatisfactions and disagreements arise occasionally among people in any work situation, the filing of a grievance shall not be construed as reflecting unfavorably on an employee's good standing, performance, loyalty, or desirability to VA. Reasonable time during work hours will be allowed for employees and union representatives to discuss, prepare for, and present grievances including attendance at meetings with management officials concerning the grievances, consistent with Article ? and local supplemental agreements.

Section 7 - Procedure

Employees and/or their representatives are encouraged to informally discuss issues of concern to them with their supervisors at any time. Employees and/or their representatives may request to talk with other appropriate officials about items of concern without filing a formal grievance if they choose. In the event of a formal filing of a grievance, the following steps will be followed:

Step 1. An employee and/or the Union shall present the grievance to the immediate or acting supervisor with an information copy to the Director of the facility in writing within thirty (30) calendar days of the date that the employee or Union became aware or should have become aware of the act or occurrence or anytime if the act or occurrence is of a continuing nature. The immediate or acting supervisor will make every effort to resolve the grievance immediately but must meet with the employee/representative and provide a written answer within fourteen (14) calendar days of receipt of the grievance.

Step 2. If the grievance is not satisfactorily resolved at Step 1, it shall be presented to the Service/Division Chief, or equivalent management official or designee, in writing, within seven (7) calendar days of the Step 1 supervisor's decision. The grievance must state, in detail, the basis for the grievance and the corrective action desired. The Service/Division Chief, or equivalent management official, or designee, shall meet with the employee and his/her representative and provide a written answer within ten (10) calendar days.

Step 3. If no mutually satisfactory settlement is reached as a result of the second step, the aggrieved party or the Union shall submit the grievance to the Director, or designee, in writing, within seven (7) calendar days of receipt of the decision of Step 2. The Director or designee, will meet with the aggrieved employee and his/her representative within seven (7) calendar days to discuss the grievance. The Director or designee will render a written decision to the aggrieved party and the Union within ten (10) calendar days after the meeting.

Step 4. If the grievance is not satisfactorily resolved in Step 3, the grievance may be referred to arbitration as provided in Article 39, Arbitration.

Note 1: For Veterans Canteen Service (VCS) employees, Step 2 will be eliminated at those facilities where two levels of supervision are not present. In Step 3, the VCS Field Director, or his/her designee, will be the deciding official. The meeting will be at the duty station of the aggrieved employee and with an official higher than the Canteen Chief.

Note 2: For National Cemetery System (NCS) employees, where there are two levels of supervision, Step 1 will be the immediate supervisor. Step 2 will be an Assistant Cemetery Director where one exists and Step 3 will be the Cemetery Director. Where there is only one level of supervision, Step 1 will be the Cemetery Director and Step 1 time limits will apply. Step 2 will be eliminated, and Step 3 will be the NCS Area Director or designee.

Note 3: For VA Headquarters unit employees, the following officials will replace those mentioned in the respective steps:

Step 1 - Immediate supervisor

Step 2 - Service Director (or equivalent), or designee

Step 3 - Administration or Staff Office Head, or designee

Note 4: At any step of the negotiated grievance procedure, when any management deciding official designates someone to act on his/her behalf, that designee will have the complete authority to render a decision at that step and will render the decision. The designee will never be someone who decided the issue at any previous step.

Note 5: It is agreed that grievances should normally be resolved at the lowest level possible. However, there will be times when a grievance may be more appropriately initiated at the second or third step of the procedure for example, when a disciplinary action is taken by a Service Chief or higher level, when the supervisor at the lower level clearly has no authority to resolve the issue, or when the Union grieves an action of a management official other than a Step 1 supervisor. When a grievance is initiated at a higher step, the time limits of Step 1 will apply.

Note 6: Grievances over actions taken by VA Headquarters officials against field station employees may be grieved directly to arbitration in accordance with Article 14, Arbitration. The request for arbitration in such cases should be made by the local union president or designee to the facility Director, clearly setting forth the basis for the grievance and the corrective action being requested. The parties may coordinate an effort for informal resolution prior to the actual arbitration.

Note 7: Local management-initiated grievances shall be filed with the local union president or designee and shall constitute Step 3 of the negotiated grievance procedure. Such grievance must be filed within thirty (30) calendar days of the act or occurrence or when management became aware of, or should have become aware of, the act or occurrence. The time limits for the meeting and response will be fourteen (14) calendar days.

Section 8 - Extensions

Time limits at any step of the grievance procedure may be extended by mutual consent of all parties.

Section 9 - Failure to Respond in Timely Manner

Should management fail to comply with the time limits at Step 1, the grievance may be advanced to Step 2. Should management fail to comply with the time limits for rendering a decision at Step 2 or Step 3, the grievance shall be resolved in favor of the grievant, provided that (1) receipt of the grievance had been acknowledged by management at the appropriate step in writing and (2) the remedy requested by the grievant is legal and reasonable under the circumstances of the grievance.

Section 10 - Multiple Grievances

Multiple grievances over the same issue may be initiated as either a group grievance or as single grievances at any time during the time limits of Step 1. Grievances may be combined and decided as a single grievance at the later steps of the grievance procedure by mutual consent.

Section 11 - National Level Grievances

Grievances between the Department and the Union at the national level shall be filed by the aggrieved party as follows:

A. Within thirty (30) calendar days of the act or occurrence or within thirty (30) days of the date the party became aware or should have become aware of the act or occurrence or at any time if the act or occurrence is continuing, the aggrieved party (VA Headquarters or the National VA Council) may file a written grievance with the other.

B. Upon receipt of a grievance, the parties will communicate with each other in an attempt to resolve the grievance. A final written decision, including any position on grievability or arbitrability, must be rendered by the respondent within forty-five (45) days of receipt of the grievance. If a decision is not issued in forty-five (45) days or if the grieving party is dissatisfied with the decision, the grieving party may proceed to arbitration in accordance with Article 39, Arbitration. The time limits may be extended by mutual agreement.