6.771.1. Agency Grievance System (AGS)

(1) Purpose: This IRM provides guidance on processing Non-Bargaining Unit (NBU) employee grievances.

1. For Bargaining Unit (BU) employees covered by the 2019 National Agreement (NA), Internal Revenue Servive (IRS) and National Treasury Employees Union (NTEU) available at: http://publish.no.irs.gov/cat12.cgi?request=CAT1&catnum=32781, review appropriate NA provisions. The AGS is only available to BU employees seeking relief for matters not covered in the NA.

2. Should this IRM guidance conflict with provisions of the NA, the agreement prevails.

(2) Audience: The policies, authorities, procedures, and instructions contained in this IRM apply to all business units excluding Chief Counsel. This policy applies to NBU employees and BU employees with matters not covered by the NA.

(3) Policy Owner: The Human Capital Office (HCO).

(4) Program Owner: Director, HCO Policy and Audits (P&A) and Labor/Employee Relations and Negotiations (LERN) divisions.

(5) Primary Stakeholders: HCO P&A and LERN divisions.

(6) Program Objectives: This IRM establishes the IRS Agency Grievance policy and procedures for employees to raise matters of concern or dissatisfaction to management for consideration.

(1) It is the policy of the IRS to maintain a climate of openness in which a grievant or potential grievant may express their concern(s) informally or use the AGS to seek a formal resolution.

(2) Employees may file grievances without restraint, interference, coercion, discrimination, or reprisal. Grievances are to be fairly and objectively considered and processed expeditiously.

(3) All grievances are addressed within the business unit’s management chain.

1. If the Commissioner or equivalent level is the Step 1 GDO, there is only one grievance step.

2. A grievance will not elevate to the Commissioner of the IRS, the Deputy Commissioner (DC) for Operations Support (OS) or the DC for Services and Enforcement (SE) unless the grievant reports directly to them. For example, in the Large Business & International (LB&I) business unit, the Director of Programs and Business Solutions reports to the DC LB&I; therefore, they may file a formal grievance with the DC.

(4) Management may grant up to a total of four hours of administrative time to the grievant and their authorized representative to discuss, prepare, and present the grievance. The AGS allows for a total of four hours of administrative time, regardless of the number of steps the grievance involves.

1. The Grievant and authorized representative (if applicable) must request and receive approval for administrative time in advance.

2. Use of government equipment (e.g., copiers, printers, and computers) requires advance approval.

(1) Employees may choose a representative who is:

1. Willing to serve, and

2. Allowed by the GDO (refer to IRM 6.771.1.4 ).

(2) Employees may designate a representative at any step of the AGS.

(3) The grievant’s designation must be in writing and submitted to the GDO.

(4) Only one individual may act as the representative.

(5) The grievant may change the designation of a representative at any time.

(1) The IRS will allow a grievant’s choice of representative unless such choice:

1. Conflicts with the priority needs of the IRS - The IRS mission takes precedence. The requested representative may be disallowed if releasing the named employee would have a significant negative impact on the IRS. This consideration uses the same criteria as annual leave approval.

2. Creates a conflict of position - This occurs when the representative’s IRS duties conflict with the functions of the representative. For example, if the requested representative participated in or has special knowledge about the grievance by virtue of their assigned duties.

3. Creates a conflict of interest - This can take many forms. For example, when a GDO’s supervisor is designated by the grievant to act as their representative.

4. Or, Imposes unreasonable costs to the government - This can include any travel cost, or any expenses requested by the representative to fulfill their role.

(2) The GDO will, within ten days of receiving the grievant’s designation of representative, if applicable, provide the written disallowance notice to the employee and the disallowed representative. The disallowance notice includes the grievant’s appeal rights and becomes part of the case file.

(3) A grievant (not the disallowed representative) may appeal the decision to disallow the representative by:

1. Submitting a written appeal (via email) within 10 days of receipt of a decision.

2. Including the disallowance decision notice in the appeal.

3. Sending the appeal to the LERN Associate Director, Field Operations (AD Field Ops). To find the name of the AD Field Ops, refer to HCO’s website at http://hco.web.irs.gov/apps/staffdir/lrcontactguide.pdf.

(4) Within 15 days of receiving the appeal regarding the representative decision, the AD Field Ops will make and communicate a final decision on either allowing or disallowing the representative. This action enables the grievance process to proceed and is not grievable.

(1) The AGS is available to the following individuals:

1. Current NBU employees.

2. Current BU employees if the grievance issue is not covered under the NA (e.g., the ranking procedures used to fill a supervisory position).

3. Former IRS employees on a matter that arose during their IRS employment with a plausible remedy (e.g., pay issue) after separation.

(2) The AGS is not available to the following individuals:

1. Applicants for employment

2. BU employees if the matter is covered in the NA

3. Chief Counsel employees

4. Deceased employees unless the grievance involves a pay-related matter.

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

(2) Employees cannot file an EEO complaint and an agency grievance on the same issue. If an employee files a formal grievance through the AGS and also files an EEO complaint for the same issue, whichever action was filed first prevails.

(3) The AGS excludes matters pertaining to:

1. The content of established IRS regulations and policies.

2. Any matter subject to review and adjudication by the Merit Systems Protection Board (MSPB), the Office of Personnel Management (OPM), the Federal Labor Relations Authority, or the Equal Employment Opportunity Commission (EEOC). See IRM 6.771.1.6.1, Appealable Decisions Excluded from the AGS.

3. A matter administered by the Government Accountability Office or the Office of Workers' Compensation Programs, Department of Labor.

4. Any matter forwarded to the IRS Deputy Ethics Official for a review and decision.

5. Non-selection for promotion from a group of properly ranked and certified candidates, or failure to receive a non-competitive promotion.

6. The termination/separation of probationary employees for performance reasons.

7. The termination or expiration of a time-limited excepted service appointment or term appointment unless the employee does not have appeal rights under 5 CFR 4325 CFR 432 or 5 CFR 7525 CFR 752.

8. A reduced penalty or other lesser action resulting from a decision on a grievance.

9. The termination of a term or temporary promotion that returns the employee to the position from which they were temporarily promoted or reassigns or demotes the employee to a different position that is not at a lower grade or pay than the position from which they were temporarily promoted.

10. The substance of an employee’s critical job elements and performance standards established per Title 5 of the United States Code, Chapter 43 and 5 CFR 430.

11. The granting of, or failure to grant, or the amount of any type of discretionary award or recognition.

12. The adoption of or failure to adopt an employee suggestion or invention.

13. Any SES performance-based action or any decision regarding SES pay, awards, or performance evaluations.

14. The expiration of an SES limited emergency or term appointment on the date specified as a condition of employment at the time of the appointment or promotion.

15. Return of SES members to another pay system during their one-year probationary period for less than fully successful executive performance, or failure to recertify, conditional recertification or termination during probation for unacceptable performance.

16. A receipt of an advance notice (proposal letter) for an action that has not been decided or taken place (e.g., a proposal for a suspension, adverse action, or an intent to deny a within grade increase).

17. A receipt of a non-disciplinary action such as a cautionary, clearance, close without action or counseling memorandum or notice.

18. A receipt of a mid-year performance appraisal.

19. An action taken for violating a Service Agreement per IRM 1.32.12, Servicewide Travel Policies and Procedures, IRS Relocation Travel Guide.

(1) If an employee wishes to formally grieve a work-related issue (other than a disciplinary action or an annual performance rating), they must present it on Form 5877, Agency Grievance and Authorization for Representative’s Access to Official Records,to their immediate supervisor within 15 days of the event or the date the employee became aware of the matter being grieved. Employees should present a matter of concern about a continuing practice/condition as soon as possible.

1. Grievances on disciplinary actions begin at Step 2 in the AGS with the Step 2 GDO. Refer toIRM 6.771.1.8.

2. Grievances on annual performance ratings for non-payband employees begin at Step 2 in the AGS with the rating or reviewing official. Refer toIRM 6.771.1.8.

3. Grievances on annual performance ratings for payband employees begin at Step 2 in the AGS with the Performance Review Board. Refer to IRM 6.771.1.10.

(2) Within 15 days of the manager will review theForm 5877, Agency Grievance and Authorization for Representative’s Access to Official Records, and determine the appropriate GDO and forward the Form 5877 and all supporting documents.

(3) Within 10 days the GDO will review the Form 5877, Agency Grievance and Authorization for Representative’s Access to Official Records, and the supporting documentation and issue a written threshold decision if any threshold issues apply. Refer to IRM 6.771.1.7.1

(1) Step 2 in the AGS involves consideration of:

1. Disciplinary actions

   Note: If an employee wishes to grieve a disciplinary action, they must present it on Form 5877, Agency Grievance and Authorization for Representative’s Access to Official Records, to their second level supervisor within 15 days

   .

2. Appeals of Step 1 decisions, and if an employee wishes to appeal the Step 1 decision, within 15 days of receiving the Step 1 decision they must prepare a memorandum or email to their second level supervisor stating the issue was not resolved at Step 1 and attach Form 5877and all related correspondence.

   Note: No new issue(s) may be added to the Step 2 (i.e., issues not raised/considered in the Step 1 decision).

3. Non-payband performance grievances.

   Note: For payband performance grievances, refer to

   IRM 6.771.1.11.

(2) Upon receipt of the Step 2 grievance, the second level supervisor will determine the appropriate GDO, and then forward the Form 5877, Agency Grievance and Authorization for Representative’s Access to Official Records, and all supporting documentation. The Step 2 GDO will contact their servicing LRS to discuss the grievance and next steps.

1. If there is no factual dispute, the Step 2 GDO will hold a meeting with the employee (and their representative if applicable) within 10 days of receiving the grievance and attempt to resolve the issue. This is referred to as the Step 2 meeting.

2. If there is a factual dispute, refer to IRM 6.771.1.9.

3. Within 10 days of the Step 2 meeting (and there is no factual dispute), the GDO will issue a decision.

   Note: If the grievant accepts the Step 2 decision, it is final, binding, and not subject to further review. If the grievant does not accept the Step 2 decision, they may appeal it and move to Step 3 in the AGS. Refer toIRM 6.771.1.1.11 .

(1) If the GDO at Step 2 or Step 3 determines the grievance involves a factual dispute, the GDO will request a factfinder normally within 5 days of receipt of the Step 2 or Step 3 grievance.

(2) To request a factfinder, the GDO completes Exhibit 6.771.1-1, “Agency Grievance System Grievance Deciding Official Request for a Factfinder”.

• The GDO sends the request via email to the LERN Associate Director, Field Operations (AD Field Ops). To find the name of the AD Field Ops, refer to HCO’s website at http://hco.web.irs.gov/apps/staffdir/lrcontactguide.pdf.

(3) A factfinder may obtain the evidence necessary to address the issue(s) at their discretion.

(4) The factfinder will provide their preliminary findings to the grievant, their representative if applicable, and the GDO.

(5) GDO, grievant, and representative if applicable (the parties) have three days to independently review the information. The pre-meeting review gives each party an opportunity to:

1. suggest additional sources of evidence, and/or

2. deny, refute, or otherwise challenge any evidence in the factfinder’s documentation

(6) After reviewing the additional source(s) of evidence and comments suggested by the parties, if any, the factfinder prepares a report of findings and sends it to the GDO with copies to the grievant, the representative if applicable, and the servicing LRS.

(7) If the GDO determines additional fact-finding is necessary (preliminary finding are insufficient or inadequate), they may ask for additional fact-finding. If this occurs, the GDO will inform the grievant and the representative (if applicable) of the type of additional inquiry and the approximate decision date.

(8) Within 10 days of accepting the factfinding report, the GDO will hold a grievance meeting with the employee and their representative if applicable.

(9) Within 10 days of the Step 2 meeting, the GDO will issue a written decision. The decision will include:

1. A summary of the Step 2 issue(s)

2. A summary of the consideration given to the issue(s)

3. The conclusion(s) reached

4. The decision on the issue(s) including any applicable remedy/remedies

5. Appeal rights to Step 3 and time limit

(10) If the grievant accepts the Step 2 decision, it is final, binding, and not subject to further review.

(11) If the grievant does not accept the Step 2 decision, they may appeal to Step 3 of the AGS. Refer toIRM 6.711.1.11.

(1) Reconsideration of Rating - Each business unit or equivalent establishes written guidelines for the Performance Review Board (PRB) grievance procedures prior to any reconsideration. The procedures will identify the GDO designated to receive and consider appeals (Step 2 of the AGS).

1. If a Payband employee wishes to grieve a performance rating, they must submit their request on Form 5877, Agency Grievance and Authorization for Representative’s Access to Official Records, including all relevant information to their designated PRB within 15 days from receiving the rating. The grievant will provide a copy of the grievance to their supervisor and the servicing LRS’ section chief. To determine which LR/ER office supports a business unit, refer to http://hco.web.irs.gov/apps/staffdir/lrcontactguide.pdf .

2. Within five days, the PRB will review Form 5877, Agency Grievance and Authorization for Representative’s Access to Official Records,and supporting documentation and issue a written threshold decision if a threshold issue is not met for (e.g. Timeliness, Completeness and Grievability).

Note: Completeness must contain a signed copy of the rating being grieved, the reason(s) grievant believes the rating to be incorrect, and the remedy requested. If the grievance is incomplete, it is returned. A corrected grievance may be resubmitted within five days of the PRB’s threshold notice.

Note: Grievability - only payband performance ratings are grieved through this process.

3. The PRB will consult with the servicing LRS at http://hco.web.irs.gov/apps/staffdir/lrcontactguide.pdf before finalizing the decision. If the PRB determines the original or resubmitted grievance does not meet all threshold issues, the PBR will issue a written threshold decision to the grievant and send copies to the grievant’s supervisor and the servicing LRS.

   Note: Threshold decisions are final, binding, and not subject to further review.

   Note: If the resubmitted grievance does not contain threshold issues, the PRB will consider the requested reconsideration of rating and provide a written decision within five days.

(2) The PRB’s written grievance decision will include instructions on the time limit to submit an appeal (Step 2) and the GDO designated to receive the appeal who must not have been involved in the original reconsideration. Refer to IRM 6.771.1.8.

(3) If the employee wishes to appeal the PRB decision, they have five days to submit the appeal to the GDO designated in the decision.

(4) An appeal must include:

• The original Form 5877, Agency Grievance and Authorization for Representative’s Access to Official Records

• The PRB decision, and

• Any other supporting documentation

(5) The designated Step 2 GDO will:

1. Review Form 5877, Agency Grievance and Authorization for Representative’s Access to Official Records,and the PRB decision

2. Consider the documentation submitted to support the grievant’s position

3. Issue a written grievance decision within ten days

4. Provide a copy of the written decision to the grievant’s manager and the servicing LRS

(6) The Step 2 decision is final, binding, and not subject to further review.

(1) If an employee wishes to grieve the Step 2 decision, they must prepare a memorandum or email stating the unresolved issue(s) from Step 2 and attach Form 5877with supporting documentation within 10 days.

(2) The step 3 GDO:

1. Will review Form 5877and supporting documentation and contact the servicing LRS to discuss next steps.

2. Must hold a meeting with the employee and their representative (if applicable) within 10 days of receiving the appeal of the Step 2 decision and attempt to resolve the issue.

3. Will issue a decision within 10 days of the meeting.

(3) The Step 3 GDO’s decision is final, binding, and not subject to further review.

(1) At any time prior to issuing the final decision (at any Step), a GDO may cancel or reject a grievance:

• At the employee’s request.

• Due to the grievant’s termination/separation from the IRS unless a remedy for the former employee’s concern may be granted after termination.

• For failure to pursue the grievance in a timely and acceptable manner (e.g., the employee does not furnish or does not timely furnish information requested and necessary to address the concern).

• For failure to specify the personal relief requested (remedy).

• Because the matter(s) is not covered by the AGS or is not within management’s control to resolve.

• By an employee who is not covered by the AGS (e.g., a BU employee submits Form 5877 when they should follow the NA Article 41 grievance procedures).

• If the procedures in this IRM are not followed.

(2) The written notice of cancellation or rejection will include:

1. The reason(s)

2. Citation(s) (e.g., an IRM section)

3. Appeals rights with time limit

(3) Send the appeal via email to the LERN Associate Director, Field Operations (AD Field Ops). To find the name of the AD Field Ops, refer to HCO’s website at http://hco.web.irs.gov/apps/staffdir/lrcontactguide.pdf.

(4) Within 15 days of receiving the appeal, the AD Field Ops will issue a written decision to the grievant and send copies to the grievant’s supervisor and the servicing LRS.

• If the decision is upheld, the grievance is closed. The decision is final, binding, and not subject to further review.

• If the decision is in favor of the grievant, the grievance is returned to the GDO to address the grievance.