ARTICLE 28: GRIEVANCE PROCESSES

Official CBA pages 128-137

Official CBA Page 128

ARTICLE 28: GRIEVANCE PROCESSES

A. PURPOSE:

1. The purpose of this Article is to provide a fair and simple method for the expeditious

processing of grievances filed by bargaining unit employees, the Union, or the Agency.

2. The Parties recognize that many grievances arise from misunderstandings that can be

settled promptly and satisfactorily on an informal basis. The Agency and the Union will

make efforts to resolve grievances informally.

3. Employees and their representatives will be free from restraint, interference, coercion,

discrimination, or reprisal, consistent with the December 30, 2022 Determination on

Transportation Security Officers and Collective Bargaining (Determination) (which

incorporates the provisions of Chapter 71 of Title 5 of the U.S. Code as set forth in the

Determination) and this Article, in seeking adjustments of grievances.

4. All individuals involved in grievance procedures are expected to conduct themselves in a

respectful manner.

B. COVERAGE AND SCOPE:

1. Consistent with this Article, a grievance means any complaint:

a. by an employee(s) concerning any matter relating to the employment of the

employee(s);

b. by the Union concerning any matter relating to the employment of any employee(s); or

c. by an employee(s), the Union, or the Agency concerning:

i. the effect or interpretation, or a claim of breach of a collective bargaining

agreement, or any national level memoranda of agreement and/or national level

memoranda of understanding between the Parties consistent with the

Determination, as well as any local agreements agreed to by the Parties consistent

with the Determination, or the Determination;

ii. any claimed violation, misinterpretation, or misapplication of any law, rule, or

regulation affecting conditions of employment.

2. Only the Union or the Agency may file a grievance alleging:

a. failure to agree on ground rules;

b. failure to agree on terms of the collective bargaining agreement (including related

memoranda of agreement/understanding and local supplemental agreements);

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c. failure to bargain in good faith.

3. The Union may file a grievance on its own behalf or on behalf of one or more of its

bargaining unit employees.

4. Grievances on the following matters are excluded from the scope of this procedure:

a. any claimed violation relating to prohibited political activities;

b. retirement, life insurance, or health insurance;

c. any examination, certification, or appointment;

d. [Blank] The Parties did not reach agreement on this provision.

e. the classification of any position which does not result in the reduction in pay band or

pay of an employee;

f. decisions made by other agencies or third parties, such as courts, the Office of

Personnel Management (OPM), or the Department of Labor’s Office of Workers’

Compensation Programs (OWCP);

g. any matter in which the affected bargaining unit employee has elected to appeal through

a statutory, regulatory or similar processes, e.g., the EEOC (by filing a formal

complaint), MSPB (by filing an appeal to the MSPB pursuant to the Memorandum of

Agreement Between Transportation Security Administration and U.S. Merit Systems

Protection Board, effective September 26, 2021) or Office of Special Counsel (OSC)

(by filing a complaint with OSC);

h. adjudication of the results of personnel security investigations and suitability/fitness

determinations;

i. oral and written counseling(s);

j. the content of performance discussions including progress reviews (e.g., quarterly

and/or mid-year) under a TSA performance management system. However, the

employee may file a grievance, as appropriate, that management failed to conduct the

reviews as required by TSA policy or the collective bargaining agreement;

k. [Blank] The Parties did not reach agreement on this provision.

l. the content of performance elements, goals or standards;

m. notices proposing a disciplinary or adverse action;

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n. [Blank] The Parties did not reach agreement on this provision.

o. [Blank] The Parties did not reach agreement on this provision.

p. failure to receive a performance or incentive award; unless evidence exists that the

Agency failed to comply with the relevant policies and procedures;

q. [Blank] The Parties did not reach agreement on this provision.

r. [Blank] The Parties did not reach agreement on this provision.

s. [Blank] The Parties did not reach agreement on this provision.

t. [Blank] The Parties did not reach agreement on this provision.

u. non-adoption of a suggestion or recommendation;

v. [Blank] The Parties did not reach agreement on this provision.

w. separation or termination of employment during the trial period;

x. [Blank] The Parties did not reach agreement on this provision.

y. [Blank] The Parties did not reach agreement on this provision.

C. EXCLUSIVITY:

1. Grievances may be initiated by any bargaining unit employee; the Union; or by the Agency.

2. This is the exclusive procedure available to bargaining unit employees and the Union for

the resolution of grievances within its scope. Any separate administrative grievance

procedure that TSA may have for non-bargaining unit employees is not available to

bargaining unit employees.

D. REPRESENTATION:

1. Upon filing a grievance, a bargaining unit employee may elect to be self-represented or

represented by a Union representative. Anyone the Union has designated in writing is the

representative of the Union. The designated Union representative may be disqualified for

a conflict of interest.

2. Substantially Similar or Group Grievances: Group grievances on behalf of two or more

bargaining unit employees may be filed only by the Union.

a. In the case of a substantially similar grievance involving a group of employees, one

employee’s grievance may be selected by the Union for processing as the “lead

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grievance” provided all relevant facts and circumstances are substantially similar. In

such cases, all decisions on the “lead grievance” will be binding on the other

grievance(s). Substantially similar grievances are those arising from a common set of

circumstances which adversely affect the grievance in the same manner where all of

the witnesses would be testifying to the same or substantially similar facts. The term

“substantially similar” means facts which are sufficiently alike so that a reasonable

person would conclude that application of the same rules to the facts in each grievance

would result in the same conclusions with regard to the outcome of those grievances.

The Union may consolidate grievances.

b. When processing such a consolidated grievance or a grievance involving a group of

employees, no more than three (3) employees, excluding the designated Union

representative(s), covered by the grievance will be permitted to attend any meeting

concerning the grievance.

3. The Union has the right to be present during any proceeding under this Article.

a. If the Union is not the designated representative, the Union Local President will be

provided with:

i. a copy of the grievance filed by a bargaining unit employee on their own behalf

within seven (7) days of when the Agency receives the grievance;

ii. reasonable advance notice – normally not less than two (2) days, excluding

weekends and Federal holidays – of any covered proceeding under this Article,

including the date, time and location; and

iii. a copy of the written grievance decision on the same day it is provided to the

grievant if provided by email. If the grievance decision is provided by method other

than by email, it will be provided to the Union by email within five (5) days of the

date it is provided to the grievant.

4. Where the grievant elects Union representation, meetings and communication with regard

to the grievance and any attempts at resolution will be made through the designated Union

representative.

5. The Union and the Agency agree that grievances should be settled promptly to maintain

agency efficiency and bargaining unit employee morale. The Agency and the Union will

make efforts to settle grievances at the lowest level with the Agency representative who

has the authority to resolve the issue, as determined by the Agency.

6. If requested by the Union, a denial of a request for information that is related to a grievance

will be joined to that grievance. If the denial occurred before or during Step I, the request

to join the denial to the grievance must be made in writing before a Step II decision is

issued so that there can be a decision on the denial consistent with this Article prior to any

arbitration.

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E. GRIEVABILITY:

1. Grievability issues must be raised, if at all, in writing and no later than the response to the

Step II grievance.

2. For Section K grievances, allegations regarding grievability must be raised, if at all, in

writing and prior to arbitration being invoked.

NOTE: This requirement concerns grievability and does not prevent the Agency from

asserting that a particular proposal is outside the duty to bargain, as appropriate.

F. ELECTION OF NEGOTIATED GRIEVANCE PROCEDURE OR APPEAL/OTHER

REVIEW:

1. The following actions may be filed either under the negotiated grievance procedure or a

statutory, regulatory, or similar process, but not both:

a. Adverse Actions

b. Discrimination (5 U.S.C. § 2302(b)(1))

2. [Blank] The Parties did not reach agreement on this provision.

3. A bargaining unit employee shall be deemed to have exercised their option under this

section when they timely initiate an action under the applicable statutory, regulatory, or

similar process (e.g., an EEO formal complaint or an MSPB appeal pursuant to the

Memorandum of Agreement between Transportation Security Administration and U.S.

Merit Systems Protection Board, effective September 26, 2021) or file a timely grievance

in writing under the negotiated grievance procedure, whichever event occurs first.

NOTE: With regard to EEO matters, discussions between a bargaining unit employee and

an EEO counselor will not preclude the employee from selecting the negotiated grievance

procedure if the grievance is otherwise timely. A bargaining unit employee will be deemed

to have exercised their forum option when they file a formal EEO complaint or when they

file a timely grievance in writing under the negotiated grievance procedure, whichever

occurs first. For purposes of an EEO matter, the time limit for filing a grievance will be

extended by fifteen (15) days, beginning with the bargaining unit employee’s receipt of a

notice of the Right to File a Formal Discrimination Complaint.

G. MEDIATION:

1. Mediation is available at any time during the grievance process. Either party to the

grievance may request mediation by email to ResolutionCenter@tsa.dhs.gov with a copy

to the other party. The non-requesting party may decline to engage in mediation. If the

matter at issue in the grievance is resolved through mediation, the grievance file will be

closed. Any discussions or other communications, oral or written, involving the mediation

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may not be used in any step of the grievance procedure or in any subsequent arbitration

unless the Parties agree otherwise.

2. Unless and until the non-requesting party agrees to engage in mediation, the grievance

process will continue. If the non-requesting party agrees to engage in mediation, a

representative of the Agency will inform the Parties in writing that the grievance process

will be paused until mediation has concluded.

H. TIME LIMITS:

1. In computing the relevant time period, the first calendar day after the effective date of the

action (e.g., the occurrence giving rise to the grievance; the receipt of the grievance; the

date of the grievance meeting) is the first day of the time period.

2. As used in this Article, “day(s)” refers to calendar days unless otherwise expressly

provided herein. If the day an action must be completed under this Article falls on a

Saturday, Sunday, or Federal holiday, the due date will be the next regular business day

(Monday through Friday).

3. The Step II Official can have one (1) fifteen (15) day extension to complete the Step II

decision if the Step II Official determines that such an extension is necessary. If the Step

II Official needs to use this fifteen (15) day extension, they will notify the grieving party

of the extension prior to the expiration of the initial timeframe. The Parties do not intend

that this ability to extend the time frame for the Step II decision would be used by a Step

II official for every grievance. All other time limits in this Article may be extended by

written mutual consent of the Parties to the grievance.

I. FILING A GRIEVANCE (APPLIES TO ALL GRIEVANCES FILED UNDER THIS

ARTICLE):

1. Grievances must be filed within thirty (30) days of when the affected party first became

aware, or reasonably should have become aware, of the issue being grieved. Grievances

alleging a continuing violation(s) must have had at least one (1) instance of the alleged

violation(s) being grieved that the affected party first became aware, or reasonably should

have become aware, within thirty (30) days of filing the grievance.

2. Grievances will be submitted by email to ResolutionCenter@tsa.dhs.gov or by fax to 703-

603-4057. The grievance will either be submitted: (1) using the TSA Form 1115-1,

Grievance-Mediation Request, or (2) in writing containing at a minimum:

a. a description of the action or decision being grieved, including the date on which the

grieving party became aware of the action or decision;

b. the provision(s) of TSA policy that was allegedly violated, if applicable, and how;

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c. the provision(s) of the Determination and/or collective bargaining agreement

(including this Article) and national level memoranda of agreement and/or national

level memoranda of understanding between the Union and the Agency, as well as local

agreements agreed to by the Parties consistent with the Determination that were

allegedly violated, if applicable, and how;

d. copy of action being grieved (if adverse/discipline/corrective action);

e. whether a grievance meeting is requested for Step I (or Step II for National Level and/or

Agency grievances); and

f. the requested relief.

3. The grievant should also include supporting documentation which is in their possession at

the time the grievance is filed, but this does not waive the grievant’s ability to further

supplement the grievance.

4. A representative of the Agency will promptly forward grievances to the Step I Official or

Step II Official, as appropriate.

J. PROCEDURES FOR ALL GRIEVANCES EXCEPT THOSE GRIEVANCES

ALLEGING IMPASSE AND BAD FAITH BARGAINING (SECTION K):

1. All grievances covered by this Section (Section J) begin at Step I except that National Level

grievances and Agency grievances (whether Local Level or National Level) begin at Step

II.

a. National Level grievances are those filed by AFGE Council 100 in their capacity as

national Union representatives or by TSA Headquarters.

b. Grievances on local issues that are filed by AFGE Council 100 members in their

capacity as local Union representatives are not National Level Grievances.

2. Step I Process:

a. Within fifteen (15) days after receipt of the grievance, the Step I Official will hold a

grievance meeting if one was requested.

b. The Step I Official will issue a written decision within fifteen (15) days after the

grievance meeting or, if no grievance meeting is held, the Step I Official will issue the

written decision within thirty (30) days after receiving the grievance. The decision will

either grant, partially grant, or deny the relief sought and contain the Step I Official’s

rationale. The written decision also will identify the Step II Official.

c. If the grievant or the grievant’s union representative (if any) wish to pursue the

grievance, they will submit the grievance to the Step II Official within fifteen (15) days

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of the date of the Step I decision was delivered (Section J.2.b). This notification will

include a copy of the grievance, a copy of the Step I decision, and whether a Step II

grievance meeting is requested (collectively Step II Grievance Submission).

d. If the Step I Official does not hold the grievance meeting (if requested) or issue the

written decision in the time required, the grievant or the grievant’s union representative

(if any) can email ResolutionCenter@tsa.dhs.gov within fifteen (15) days of the date

the required time period expired to advance the grievance to Step II.

e. If the grievant or the grievant’s union representative (if any) does not submit the

grievance to the Step II Official consistent with the timeframe in Section J.1.d, the

grievance will terminate and be closed.

3. Step II Process:

a. Within twenty (20) days after receipt of the Step II Grievance Submission, the Step II

Official will hold a grievance meeting if one was requested.

b. The Step II Official will issue a written decision within fifteen (15) days after the

grievance meeting or, if no grievance meeting is held, the Step II Official will issue the

written decision within thirty-five (35) days after receiving the Step II grievance. The

decision will either grant, partially grant, or deny the relief sought and contain the Step

II Official’s rationale. The written decision also will inform the grieving party that the

Union, at its sole discretion, may invoke the grievance for arbitration within thirty (30)

days after receipt of the Step II decision in accordance with Article 29: Arbitration

Processes.

c. Notice that the grievance is being invoked for arbitration will be sent to

arbinfo@tsa.dhs.gov with a copy to the other party consistent with Section D of Article

29: Arbitration Processes. No form is required.

d. If the Step II Official does not hold the grievance meeting (if requested) or issue the

written decision in the time required, the Union (or the Agency, if it was an Agency-

filed grievance), at its sole discretion, can email arbinfo@tsa.dhs.gov within fifteen

(15) days of the date the required time period expired to advance the grievance to

arbitration consistent with Section D of Article 29: Arbitration Processes.

4. Grievance Meetings:

a. Grievance meetings held under Step I and/or Step II of this process generally will be

held in-person if the grievant and the applicable Step Official share the same duty

station, unless the Parties agree to conduct the meeting virtually. Where the grievant

and the applicable Step Official do not share the same duty station, meetings may be

held in-person, virtually, or telephonically. In these cases, the final decision will be

made by the applicable Step Official holding the meeting, assessing the circumstances

in consideration of TSA’s mission.

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b. The grievant may have both a Union representative and a Union-designated note taker

at any grievance meeting. The note taker will not actively participate in the meeting.

The note taker will be on official time if the note taker is a bargaining unit employee.

The applicable Step Official holding the grievance meeting may also have a note taker.

Note takers cannot have been involved in the matter being grieved, cannot actively

participate in the meeting, and cannot serve as a witness or representative. The

applicable Step Official holding the grievance meeting may have counsel present at the

meeting if the grieving party and/or their Union representative is notified in advance of

the meeting.

5. [Blank] The Parties did not reach agreement on this provision.

K. PROCEDURES FOR ALLEGING IMPASSE AND BAD FAITH BARGAINING:

1. The procedures contained in this section (Section K) apply to grievances alleging:

a. failure to agree on ground rules;

b. failure to agree on terms of the collective bargaining agreement, or any national level

memoranda of agreement and/or national level memoranda of understanding between

the Parties consistent with the Determination, as well as any local agreements agreed

to by the Parties consistent with the Determination; and

c. failure to bargain in good faith.

2. If the Parties are unable to reach agreement during negotiations, notwithstanding their

efforts to do so by direct negotiations and/or the assistance of the Federal Mediation and

Conciliation Service (FMCS), one or both parties may file a grievance consistent with

Section I declaring impasse. Either party may file a grievance alleging a failure to bargain

in good faith at any time during negotiations.

3. The non-grieving party will have thirty (30) days from the date of receipt of the grievance

to submit a written response to the grievance. The written response will be provided to the

grievant and ResolutionCenter@tsa.dhs.gov.

4. The Parties will engage in mediation utilizing the services of the FMCS to assist the Parties

in an attempt to resolve the matters at issue. To be able to proceed to arbitration, the Parties

will engage in mediation after the grievance is filed, even if the Parties previously engaged

in mediation during the subject negotiations.

5. At any time during the mediation, if either party, after good faith efforts, determines that

further mediation will not be productive and the mediator agrees in writing, the matters

remaining unresolved may be forwarded to arbitration consistent with Article 29:

Arbitration Processes.

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L. EFFECTIVE DATE(S):

1. As of the effective date of this Article, all pending grievances will proceed consistent with

the terms of this Article. The Parties agree that no grievance pending as of the effective

date of this Article will be dismissed based on the application of any new applicable time

frames of this Article and will proceed from its relative place in the grievance process.

2. For National Level grievances, this Article will be effective thirty (30) days after the

effective date of the CBA. For all other grievances, this Article will be effective one

hundred and twenty (120) days after the effective date of the CBA. The purpose of this

time frame is to give both Parties sufficient time to prepare and train for the new grievance

processes. Because the Parties could not fulfill this purpose during a lapse in

appropriations, the effective date will be extended by the number of days for which there

is a lapse in appropriations.