Pilot NIH Employee Grievance Procedures


The Peer Resolution Process at NIH is a pilot administrative grievance process available to employees of the Clinical Center; National Heart, Lung and Blood Institute; National Institute on Aging; National Institute of Allergy and Infectious Disease; National Institute of Neurological Disorders and Stroke; and the Office of the Director. In the PRP, NIH ombudsmen serve as mediators who assist the grievant and the first- and second-line supervisors as they attempt to reach a mutually agreeable resolution to the grievance.

If an agreement is not reached, the grievant has the option of bringing the complaint to a panel consisting of two managers and three peers who hear the complaint. Employees choose the panelists randomly from a pool of volunteers who have been trained in the peer panel process. A neutral third party facilitates the PRP panel process and the panel's decisionmaking. The panel makes a final and binding decision to grant, modify, or deny the grievant's request for remedy. The panel is the final opportunity for appeal.

The Peer Resolution Process Policy is outlined below.



A. Purpose

This chapter contains NIH procedures for addressing employee grievances by first attempting informal resolution, and, if those efforts are not successful, seeking a final decision from a panel of peers. These procedures are for use only by the ICs who are participating in the piloting of this Peer Resolution Panel process (CC, NHLBI, NIA, NIAID, NINDS, OD). Upon conclusion of the piloting of this process, a decision will be made on whether to terminate the Peer Resolution Panel or to extend it throughout NIH.

B. Policy

It is the policy of the NIH to seek and encourage open and on-going communication between and among supervisors and employees. Supervisors are to foster open communication with employees by providing them an opportunity to informally express their concerns about matters affecting them, by considering their point of view, and by providing an explanation for actions taken. Similarly, employees should be fully supportive of management's goals and objectives and should seek to resolve concerns informally and at the lowest possible organizational level.

It is recognized, however, that some disputes arise that cannot be resolved through daily informal interaction between employees and their supervisors. If problems persist, employees are strongly encouraged to contact a representative of the NIH Office of the Ombudsman, Center for Cooperative Resolution (CCR), before pursuing formal administrative procedures. The CCR will provide a neutral party that will employ various techniques of Alternative Dispute Resolution (ADR) in an attempt to assist employees and their supervisors arrive at voluntary and mutually satisfactory solutions to their disputes.

Recognizing that not all issues can be informally resolved, this Manual Chapter establishes administrative procedures under which covered employees may raise matters of concern and/or dissatisfaction with any covered decision or action and receive objective and prompt consideration and disposition of the matter(s). As part of the deliberative process, this grievance procedure allows an employee the opportunity to have the grievance reviewed and decided by a panel of peers.

C. Coverage

These procedures are available to all employees, as defined in Section 2105 of Title 5, United States Code (as well as all current NIH employees occupying FTE Positions covered by Title 42), with the exception of bargaining unit employees covered by negotiated labor-management collective bargaining agreements and members of the Public Health Service Commissioned Corps.

D. References

  1. 5 Code of Federal Regulations Part 771, Agency Administrative Grievance System
  2. Memorandum dated October 25, 1995, from Assistant Secretary for Management and Budget, Subject: Agency Administrative Grievance System

E. Responsibilities

  1. Office of Human Resources, Division of Employee Relations and Training (OHR/DERT):
    Provides advice to Human Resource (HR) staff concerning the provisions of this Instruction.

  2. Division of Human Resource Operations (DHRO):

    1. Ensure that IC supervisors and employees are aware of the provisions of this Instruction;

      2. Provide the CCR or the panel facilitator any information or documents needed prior to or during mediation or panel hearings;

    2. Review all grievance decisions/agreements prior to issuance, for compliance with laws, regulations, and policies;

    3. Provide for the proper storage and disposal of grievance files in accordance with HHS and NIH regulations and policies.

  3. Supervisors:

    1. Continually seek to improve communication with employees;

    2. Attempt to resolve workplace disputes informally and utilize the services of the NIH Office of the Ombudsman, CCR for those conflicts where the assistance of a trained neutral could help resolve the grievance;

    3. Adhere to these procedures when addressing employee grievances, including consulting with the DHRO when a grievance is received and prior to entering into mediation agreements;
    4. Maintain the confidentiality of the grievance process.

  4. Employees:

    1. Work cooperatively with supervisors and co-workers to satisfactorily achieve the mission, goals, and objectives of the organization and towards solving work place disputes;

    2. Adhere to these procedures when filing grievances;

    3. Maintain the confidentiality of the grievance process.

  5. NIH Office of the Ombudsman, CCR:

    1. Serves as an informal, confidential, neutral, independent resource for addressing workplace disputes either outside these grievance procedures or through them when a grievance is filed;

    2. Assigns trained neutrals and employs ADR techniques in the resolution of disputes when ADR is requested;

    3. Notifies employees and deciding officials when the ADR process has concluded;

    4. Administers the Peer Resolution Panel process, including establishing the facilitator and panelist pools, assigning facilitators to individual cases, acquiring or providing training for panelists and facilitators, and receiving Requests for Peer Resolution Panel;

  6. Panelists:

    1. Conduct thorough, impartial, timely reviews and assessments of employee grievances;

    2. Make decisions based solely on the facts presented;

    3. Consider decisions reached as group decisions;

    4. Maintain confidentiality regarding all proceedings and aspects of the process;

  7. Panel Facilitators:

    1. Convene panels, summon witnesses, handle meeting logistics and related tasks so panelists can concentrate on reaching a fast, fair decision;

    2. Keep the meeting focused on the issue before the panel, guide panelists on the PRP procedures, summarize testimony, facilitate the panel's decision-making process;

    3. Open and record the panelists ballots until a majority decision is recorded, coordinate the drafting of the decision letter and have all panelists sign it, coordinate in obtaining review (as needed) from the HR staff, then relay the decision to the Grievant and management official(s).

F. Subject Matter Coverage

  • denial of leave;
  • a charge of Absent Without Leave (AWOL);
  • involuntary detail or reassignment;
  • written comments on a final performance rating of record;
  • an Official Reprimand;
  • a decision to suspend for 14 days or less.

Exclusions to the grievance process are any matters excluded by law or regulation, or required to be pursued under separate established NIH procedures, e.g., allegations of scientific misconduct, issues regarding animal use, etc. Employees may not use this grievance process whenever:

  • they can grieve under a union contract;
  • they can appeal to the Merit Systems Protection Board;
  • the action is not yet finalized and effected, but only proposed (e.g. a Proposal to Suspend for 14 days or less);
  • the issues are related to tenure, promotion, scientific review decisions, authorship, etc. within the NIH Intramural Research Programs;
  • it is an agency policy or regulation the employee disagrees with (employees can grieve the alleged misinterpretation or misapplication of the policy);
  • the employee was selected for a promotion or a position from a list of properly ranked and certified candidates;
  • it is a matter relating to the performance management system used by NIH; performance elements and standards; a performance improvement plan; and any tentative, preliminary appraisal under agency performance management procedures;
  • the matter pertains to awards or amount of pay;
  • the conditions identified by the Comptroller General of the United States are not met for requests for retroactive adjustments of a promotion date.

G. Allegations of Discrimination

An employee cannot pursue both a grievance and a formal EEO complaint with regard to the same matter. Once an employee files a formal EEO complaint, a grievance filed on the same matter will terminate. Participation in informal, pre-complaint counseling does not constitute an election of the EEO complaint procedure (29 CFR Part 1614).

H. Definitions

These procedures are available to all employees, as defined in Section 2105 of Title 5, United States Code (as well as all current NIH employees occupying FTE Positions covered by Title 42), with the exception of bargaining unit employees covered by negotiated labor-management collective bargaining agreements and members of the Public Health Service Commissioned Corps.

  1. Alternative Dispute Resolution (ADR): A confidential process that encompasses various techniques, e.g., mediation, facilitation, etc., to informally resolve disputes. Mediators and facilitators who assist parties to resolve disputes through ADR will be referred to in these procedures as "trained neutrals."

  2. Days: Refers to calendar days.

  3. Employee: A current employee as defined in Section 2105 of Title 5, United States Code. This manual issuance also applies to all Title 42 employees including:

    • All employees appointed under 42 U.S.C. 209(f) and 209(g);

    • All members of the Senior Biomedical Research Service appointed under 42 U.S.C. 228;

    • Special Experts for NIH appointed under 42 U.S.C. 282(d)(1); (220 positions)

    • Special Experts for NHLBI appointed under 42 U.S.C. 285b-3(b)(1); (100 positions)

    • Special Experts for NCI appointed under 42 U.S.C. 285a-2(b)(5) (151 positions)

  4. Grievance: A written request (made by submitting the form at Attachment A (pdf) by an employee, or a group of employees, for personal relief in a matter of concern and/or dissatisfaction relating to the employment and/or condition of employment of the employee(s), which is subject to the control of the NIH.

  5. Grievance File: A file containing all material relevant to a grievance filed under these procedures. The grievance file will be maintained in the DHRO and is available to the grievant and his/her representative and to the grievance deciding officials.

  6. Grievant: An employee, or employees acting as a group, who submits a grievance for management review.

  7. Personal Relief: A specific remedy directly benefiting the grievant. This may not include a request for or result in disciplinary or other action(s) which may adversely affect another employee. No relief can ever be provided that is not permissible under law or regulation.

  8. Peer Resolution Panel: A group consisting of trained NIH peers and supervisors randomly chosen by the Grievant to make a decision. The decision making process consists of interviewing witnesses, reviewing documentation, and issuing a binding decision. The panel decides only whether the application of policy or practice was followed correctly, fairly, and consistently. The panel can grant or deny the grievance or modify the action being grieved.

  9. Stage 1 Deciding Official: The Stage 1 Deciding Official is the individual at the lowest organizational level having authority over the matter being grieved. This will normally be the employee's immediate supervisor with the following exceptions:


    1. For allegations of impropriety in the procedures used to identify, rank, and/or certify candidates under the NIH Merit Promotion Plan; or for decisions made in the HR Office, e.g., salary-setting determination, qualifications determination, etc. the responsible appointing official will be the Stage 1 Official.

    2. For grievances regarding performance ratings of record for which the summary rating is "Unacceptable", the reviewing official (not the rating official) for the performance rating will be the Stage 1 Official.

    3. For matters in which the employee's immediate supervisor proposed an action which was later decided on and effected by a higher supervisory level (such as a suspension of 14 days or less), the immediate supervisor or proposing official would not be the appropriate management level to serve as a Stage 1 official. In most cases, the appropriate grievance deciding official will be identified in written decision notices. Questions on designation of the appropriate management level must be directed to the appropriate HR representative.

  10. Stage 2 Deciding Official: This will normally be the employee's second-line supervisor. See the NIH Personnel Delegations of Authority or consult the HR Office for officials with delegated authority to issue Stage 2 grievance decisions.

I. RELATED PROVISIONS:

  1. Employees may be accompanied, represented, and/or advised by a representative of their own choosing in pursuing a grievance under these procedures. Arrangements for obtaining the services of a representative must be made by the employee. An individual may be disallowed as a representative by the Stage 1 or Stage 2 Deciding Official if his/her serving would result in a conflict of interest or position, a conflict with the priority needs of the agency, or would give rise to unreasonable costs to the Government. The NIH will not bear any costs associated with the use of an employee representative (attorney's fees, travel costs, etc).

  2. Employees and their representatives are assured of freedom from restraint, interference, coercion, discrimination, or reprisal in presenting a grievance.

  3. The employee, and the employee's representative, if an employee of the NIH, will be permitted a reasonable amount of official time, normally not to exceed four hours, to prepare a grievance. The employee and/or his/her representative must request approval from and must schedule the use of that official time with his/her supervisor.

  4. Grievance decisions must comply with Federal statute, rules and regulations.

J. GRIEVANCE FILES:

Grievance files will be established and maintained in the DHRO. Files will be maintained for a period of three years after the date the case is closed. Upon request, the grievance file will be made available to the grievant and/or his/her representative and to grievance deciding officials.

K. RECORDS RETENTION AND DISPOSAL:

All records (e-mail and non-e-mail) pertaining to this chapter must be retained and disposed of in the servicing DHRO Branch under the authority of NIH Manual 1743, "Keeping and Destroying Records, Appendix 1, NIH Records Control Schedule," as noted in Item 2300-750-2, Grievance, Appeals Files (5 CFR 771).

 

NIH e-mail messages:

NIH e-mail messages (messages, including attachments, that are created on NIH computer systems or transmitted over NIH networks) that are evidence of the activities of the agency or have informational value are considered Federal records. These records must be maintained in accordance with current NIH Records Management guidelines. Contact your IC Records Officer for additional information.

All e-mail messages are considered Government property, and, if requested for a legitimate Government purpose, must be provided to the requester. Employees' supervisors, NIH staff conducting official reviews or investigations, and the Office of Inspector General may request access to or copies of the e-mail messages. E-mail messages must also be provided to members of Congress or Congressional committees if requested and are subject to Freedom of Information Act requests. Since most e-mail systems have back-up files that are sometimes retained for significant periods of time, e-mail messages and attachments may be retrievable from a back-up file after they have been deleted from an individual's computer. The back-up files are subject to the same requests as the original messages.

 

All grievance files must be maintained by the servicing DHRO Branch in secure areas.

L. MANAGEMENT CONTROL

The purpose of this manual issuance is to establish formal procedures for resolving employee/management disputes.

  1. Office Responsible for Reviewing Management Controls Relative to this Chapter (Issuing Office):

  2. Frequency of Reviews:

    Periodic review of IC files by OHR staff.

  3. Method of Review:

    A sample of cases will be reviewed to ensure that the ICs are in compliance with the policies and procedures stated in this Chapter.

  4. Review reports are sent to the Director of Human Resources, NIH.

M. ADDITIONAL INFORMATION:

Contact Workforce Performance and Measurement Division on (301) 496-4851.

APPENDIX A. GRIEVANCE PROCEDURES

This grievance procedure allows for the immediate assistance of a third party neutral to attempt resolution of the grievance issue(s). Any time limits cited below for Stage 1 and Stage 2 may be extended upon mutual agreement of the grievant and the grievance deciding official.

A. Stage 1:

  1. For the grievance to be accepted, the employee must file the Grievance Form at Attachment A (pdf) with CCR, or with the servicing DHRO Branch, within 14 calendar days of the act or event being grieved (or within 14 calendar days of the employee becoming aware of the act or event being grieved).

  2. The servicing DHRO branch, and the Stage 1 management official will review the grievance to ensure it is based on subject matter included under this grievance procedure and is timely and complete.
    Stage 1 management officials may provide the grievant written rejection of grievances that are untimely or excluded from this grievance process, in accordance with this provision. Grievances that are incomplete may be returned to the grievant who will have 5 days to provide the requested clarification/information to HR. HR will again consult with the Stage 1 management official. Fail ure to provide the requested clarification/information may result in the written rejection of the grievance by the Stage 1 management official, in whole or in part. The written rejection must state the reason for the rejection and cite this provision.

  3. Once a Stage 1 grievance is accepted, CCR holds a pre-hearing conference (PHC) with the grievant and the Stage 1 management official. If resolution is not reached at this point, the CCR will include the Stage 2 management official in an attempt to reach resolution. If the Grievant and the Stage 1 or Stage 2 management official reach a mutually satisfactory resolution, the CCR trained neutral will assist them in writing a settlement agreement. Settlement agreements should be reviewed by HR to ensure they are in compliance with laws, regulations and policies. The PHC, or Stage 1, process must be completed within 14 calendar days of the filing of the grievance form.

  4. At the completion of the PHC process, the grievant indicates on the Grievance Form whether the matter was resolved. If the matter was resolved, the separate agreement signed by the parties will be submitted along with the Grievance Form to the appropriate DHRO Branch for filing. If the matter was not resolved, and the grievant wishes to proceed with the peer resolution panel, the Grievance Form will be provided to the panel. Management may either record on the Grievance Form, or submit as an attachment to the Form, a brief response regarding the event that was the basis of the grievance and the reasons why the grievant's requested relief was not granted.

  5. Grievances for which the Director, NIH, is the Deciding Official, whether at Stage 1 or Stage 2, will end with issuance of the Director's decision with no provision for further review.


B. Stage 2:


The Stage 2 portion of the process may be pursued by completion of the designated section at the bottom of the Grievance Form at Attachment A and submission to CCR. Only issues raised and considered at the Stage 1 process may be considered at Stage 2.

 

  1. Convening the Panel


    1. Facilitator

      2. Within 3 days of receiving a PRP request on the Grievance Form, the CCR will assign a trained PRP Facilitator to convene a Panel.

    2. Panel Selection


      • The Grievant will randomly draw six names from the peer pool (usually non-supervisory employees) and select four. The four names will be the three Panelists plus one alternate.

      • The Grievant will randomly draw five names from the non-peer (usually supervisors) pool and select three. The three names will be the two non-Peer Resolution Panelists plus one alternate.

      • If a panelist declines to serve, the alternate will replace that panelist. If more than one panelist from a particular pool decline to serve, the Facilitator will ask the Grievant to select two more names from whichever pool the declined panelists were from. The Grievant will select the replacement panelist from these two names.

    3. PRP Hearing


      1. The Facilitator will schedule the hearing to occur within fourteen (14) days of the panel selection.

      2. The Facilitator will gather any relevant documents including policies pertaining to the matter.

      3. The Panel will interview the Grievant, the Stage 1 Official (1) and any other employees with information about the matter whom any panelist chooses to call. The Grievant and Stage 1 or Stage 2 Officials may identify witnesses to provide testimony pertinent to the grievance. The Grievant and Stage 1 or Stage 2 Officials have the right to bring any pertinent documents to the hearing.

      4. Only one witness is present in the meeting at any given time. Current employees may be interviewed, as well as past employees who are willing to serve as witnesses and who are available, if the Panel deems their testimony pertinent to the case.

      5. Only the Facilitator, Panelists, and individual witnesses will be present during panel proceedings.

      6. The Grievant's representative may be present only during the Grievant's interview.

      7. The hearing is not an adversarial proceeding. There will be no cross-examination of witnesses by opposing sides. Only panelist members may ask questions.

      8. After each witness, the Facilitator will assist the Panel to summarize the major points of the interview. The Facilitator will guide the panelists' deliberation of the issues, evidence presented, review of documents and testimony.

      9. Decision Process


        1. After all the evidence has been reviewed, the Panel will vote by secret ballot to grant, modify, or deny the Grievant's request. The Facilitator counts votes until a majority decision is reached, then all votes are destroyed.

        2. With the assistance of the facilitator, the panelists will draft a decision letter to notify the grievant and management official(s) in writing of the Panel's decision. Each panelist agrees in advance to sign the decision letter, regardless of his or her personal feelings about the case, and to treat all information as confidential.

        3. An NIH HR Official(2) will review panels' proposed "grant" or "modify" decisions only for compliance with statute, rules and regulations. The review can be conducted prior to the panel's voting on the modification or afterwards but prior to the issuance of the decision.

          4. Thereafter, the Panel's decision will be final and binding. The Panel will issue the decision letter to the supervisor and employee within three (3) days after the final Panel meeting. At that time, the Panel may also make recommendations regarding Agency policies and procedures to the appropriate NIH management official.

C. Related Provisions


  1. PRPs:

    2. Each PRP will consist of five members – three employee peers and two non-peers (usually supervisors). If the grievant is a supervisor, the PRP will consist of three peers (supervisors) and two non-peers (non-supervisors).

    Panelists are randomly selected by the Grievant from two pools of panelists: one "peer" and one "non-peer." The PRP pools are established through a solicitation of volunteer panelists from each NIH component participating in the initial pilot. The pools reflect a cross-section of the NIH workforce. Panelists are trained in the PRP process. Peer Resolution Panelists will be rotated off of the available pool after serving on 3 cases.

    PRPs cannot change policy or practices.

  2. Confidentiality:

    3. All panelists, facilitators, and other participants in the PRP (grievant, manager(s), witnesses) are obliged to maintain complete confidentiality at all times. Violation of confidentiality by any panelist in this process will result in disqualification from serving as a panelist again.

  3. Conflicts of Interest:

    4. Potential panelists are disqualified from serving on a case if s/he is a relative of one of the parties, was involved in making the decision being grieved, or feels s/he is unable to maintain impartiality because of personal knowledge or previous connection to the matter or parties, etc.

  4. Records:

    5. Any records relating to PRP proceedings are confidential and will be maintained in the Employee's Grievance File. The grievance, any settlement agreement pertaining to the grievance, and decision letters will be filed in the Employee's Grievance File.

 

1. The Stage 1 Official is the individual at the lowest organizational level having authority over the matter being grieved, normally the employee's immediate supervisor.

See Definition at H. 9. of this Instruction.


2. The HR Official serving as reviewer should not be a service provider for the IC in which the grievance was filed.

 

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