[Federal Register Volume 64, Number 210 (Monday, November 1, 1999)]
[Proposed Rules]
[Pages 58798-58800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28285]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 /
Proposed Rules
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MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Practices and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Proposed rule.
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SUMMARY: The Merit Systems Protection Board (MSPB or the Board)
proposes to amend its rules of practice and procedure with respect to
the notice an agency must provide when it takes an appealable action
against an employee who has both a right to appeal to the Board and a
right to file a grievance under a grievance procedure. The proposed
amendment is intended to ensure that such an employee understands the
consequences of making a choice between the MSPB appeal procedure and
the grievance procedure. It also is intended to ensure that, where an
employee may pursue both procedures (as in the case of preference
eligible employees of the United States Postal Service), the employee
understands that the Board's time limit for filing an appeal will not
be modified or extended if the employee files a grievance. The proposed
amendment would also clarify that preference eligible employees of the
United States Postal Service and other employees excluded from the
coverage of the Federal Labor-Management Relations Statute may not seek
MSPB review of a final arbitration decision.
DATES: Submit comments by January 3, 2000.
ADDRESSES: Send comments to Robert E. Taylor, Clerk of the Board, Merit
Systems Protection Board, 1120 Vermont Avenue, N.W., Washington, D.C.
20419. Comments may be sent via e-mail to mspb@mspb.gov.
FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board,
(202) 653-7200.
SUPPLEMENTARY INFORMATION: The Board is proposing this amendment to its
rules of practice and procedure as part of its continuing effort to
ensure that its customers understand the procedural rights to which
they are entitled and the procedures they are required to follow to
ensure full and fair adjudication of their claims.
Many Federal employees who may appeal an agency personnel action to
the Board may also have the right to pursue the matter under a
statutory grievance procedure or a negotiated grievance procedure (NGP)
under a collective bargaining agreement (CBA). Where an employee is
affected by a personnel action that can either be appealed to MSPB or
grieved in accordance with a grievance procedure, it is especially
important that the agency notice of MSPB appeal rights required by 5
CFR 1201.21 fully explain the consequences of choosing the appeal or
grievance procedure. Given the various laws and CBAs that come into
play, it is essential that agency notices of appeal and grievance
rights state the situation clearly with respect to the particular
employee against whom the action is being taken.
Most Executive Branch agencies and their employees are subject to
the Federal Labor-Management Relations Statute (5 U.S.C. 7101, et.
seq., hereafter the Statute). Under 5 U.S.C. 7121, most matters
appealable to the Board that are also covered under the NGP of a CBA
may only be challenged through the NGP (5 U.S.C. 7121(a)(1)). There are
certain exceptions, however.
If the employee is challenging an adverse action under 5
U.S.C. 7512 or an action based on unacceptable performance under 5
U.S.C. 4303, the employee may choose to appeal to the Board or file a
grievance but may not do both (5 U.S.C. 7121(e)).
If the employee raises a claim of prohibited
discrimination in connection with an action that is appealable to the
Board, the employee may choose to appeal to the Board (or to raise the
matter under any other applicable statutory procedure, such as an EEO
complaint filed with the agency under the regulations of the Equal
Employment Opportunity Commission) or file a grievance but may not do
both (5 U.S.C. 7121(d)).
If the employee raises a claim that an action appealable
to the Board was based on a prohibited personnel practice other than
discrimination, the employee may choose to appeal to the Board, file a
prohibited personnel practice complaint with the Special Counsel, or
file a grievance but may choose only one of these procedures (5 U.S.C.
7121(g)).
The employee's choice of procedure is determined by his first
filing. If he chooses to file a grievance, he may not subsequently file
an appeal with the Board. Once the grievance procedure is chosen, there
is no further opportunity for Board consideration of the matter, except
that in matters that include a claim of prohibited discrimination, the
employee may obtain Board review of the final decision of an arbitrator
in accordance with 5 U.S.C. 7121(d) and 5 U.S.C. 7702. It is essential
that agency notices to employees covered by the Statute clearly convey
these statutory requirements governing the choice between the MSPB
appeal procedure (and any other applicable statutory procedure) and the
grievance procedure.
For employees not covered by the Statute (see 5 U.S.C. 7103(a)(2)-
(3) and (b)), the rules governing the choice between appeal and
grievance procedures are far less uniform. The choices of such
employees may be governed by statute, the NGP in a CBA, or both. The
provisions of CBAs, of course, are particularly subject to change as
new agreements are negotiated. The following are three examples of the
different rules that apply outside the coverage of the Statute.
A preference eligible employee in the U.S. Postal Service
(which is excluded from the coverage of the Statute pursuant to the
Postal Reorganization Act) may be able to file both an MSPB appeal and
a grievance on the same matter under the terms of the applicable CBA.
If an appeal is filed first, a grievance may still be filed as long as
a hearing on the MSPB appeal has not begun or the record has not been
closed if there was no hearing. If a grievance is filed first, an
appeal may still be filed with MSPB but must be filed within the
Board's filing time limit.
Employees in the Tennessee Valley Authority (TVA) may
appeal certain RIF actions to MSPB. TVA preference eligible employees
may also appeal adverse actions. Under the terms of the current CBAs at
TVA, if an employee files an appeal with MSPB and
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subsequently files a grievance, the grievance will not be accepted. If
the employee files a grievance and subsequently files an appeal with
MSPB, the processing of the grievance will terminate. As is the case
with the USPS, filing a grievance has no effect on the time limit for
filing a MSPB appeal.
Foreign Service employees in the State Department and
other designated agencies are also excluded from the Statute. Career
and career-candidate Foreign Service employees have the right to appeal
RIF actions to MSPB. Such employees also have the option but only under
specific circumstances to file a grievance on a RIF matter with the
Foreign Service Grievance Review Board (FSGRB). If the employee files a
grievance with the FSGRB first, the Board has no jurisdiction over any
subsequent MSPB appeal. If the employee appeals to MSPB first, a
grievance is precluded. (20 U.S.C. 4010a(c).) Again, filing a grievance
has no effect on the time limit for filing a MSPB appeal.
Two recent cases--both involving employees not covered by the
Statute-- illustrate the problems that can result from incomplete or
ambiguous agency notices regarding appeal and grievance rights. In
Lourie v. United States Postal Service, 82 M.S.P.R. 119 (1999), the
appellant (a preference eligible employee in the Postal Service),
relying on a statement in the agency's decision letter (DL) that he
could file with MSPB after his grievance went to arbitration, filed his
appeal after the 30-day time limit had passed and was, therefore,
untimely. The Board found that while the DL correctly informed the
appellant that he could file an appeal with the Board and also file a
grievance on the same matter, and while it described the circumstances
under which one could be filed after the filing of the other, it failed
to advise the appellant that filing a grievance would not relieve him
from complying with the 30-day time limit for filing an appeal with
MSPB. The Board ruled, therefore, that the appellant showed good cause
for the untimely filing of his MSPB appeal because the notice language
in the DL was ambiguous.
In Delaney v. Agency for International Development, 80 M.S.P.R. 146
(1998), the appellant (a career Foreign Service employee) filed an
appeal of his separation by RIF with MSPB after having first filed a
grievance with the Foreign Service Grievance Review Board, which ruled
that the grievance did not come within its limited review authority. As
a result, the MSPB appeal was untimely and also raised an issue of
Board jurisdiction because of the prior election of the grievance
procedure. The Board found that the agency's notice regarding the
appellant's appeal and grievance rights did not adequately inform him
of the limitations on the scope of his grievance rights (``cases of
reprisal, interference in the conduct of an employee's official duties,
or similarly inappropriate use of the authority of this section,'' 22
U.S.C. 4010a(c)) and therefore precluded an informed election of
procedures. The Board ruled, as a result, that the appeal was within
its jurisdiction and that the appellant had shown good cause for his
untimely filing.
Because of the problems illustrated by these cases, and the
multiplicity of circumstances that apply depending on the agency and
employee involved, the Board has concluded that its rule at 5 CFR
1201.21 should be expanded to include specific criteria that an agency
notice of appeal and grievance rights must meet. Therefore, the Board
proposes to amend that section to require that a notice of any
applicable grievance right include information as to:
Whether choosing the grievance procedure will result in
waiver of the employee's right to file an appeal with the Board;
Whether both an appeal and grievance may be filed on the
same matter and, if so, the circumstances under which proceeding with
one will preclude proceeding with the other, and specific notice that
filing a grievance will not extend the time limit for filing an appeal
with the Board; and
Whether there is any right to request Board review of a
final arbitration decision in accordance with 5 CFR 1201.154(d).
The Board also proposes to amend 5 CFR 1201.154(d). Although this
provision applies by its plain language only to employees covered by
the Statute, some employees who are not covered by the Statute
(particularly in USPS) continue to file requests with the Board to
review a final arbitration decision. The proposed amendment would
qualify the term ``appellant'' to clarify that it does not include any
USPS employee or any other employee excluded from the Statute.
The Board is publishing this rule as a proposed rule pursuant to 5
U.S.C. 1204(h). The Board has made a determination under the Regulatory
Flexibility Act, Pub. L. 96-354, 95 Stat. 1164, 5 U.S.C. 601-612, that
this proposed regulatory action would not have a significant impact on
a substantial number of small entities.
List of Subjects in 5 CFR Part 1201
Administrative practice and procedure, Civil rights, Government
employees.
Accordingly, the Board proposes to amend 5 CFR part 1201 as
follows:
PART 1201--PRACTICES AND PROCEDURES
1. The authority citation for part 1201 would continue to read as
follows:
Authority: 5 U.S.C. 1204 and 7701, and 38 U.S.C. 4331, unless
otherwise noted.
2. Amend Sec. 1201.21 by revising paragraph (d) to read as follows:
Sec. 1201.21 Notice of appeal rights.
* * * * *
(d) Notice of any right the employee has to file a grievance,
including:
(1) Whether the election of any applicable grievance procedure will
result in waiver of the employee's right to file an appeal with the
Board;
(2) Whether both an appeal to the Board and a grievance may be
filed on the same matter and, if so, the circumstances under which
proceeding with one will preclude proceeding with the other, and
specific notice that filing a grievance will not extend the time limit
for filing an appeal with the Board; and
(3) Whether there is any right to request Board review of a final
arbitration decision in accordance with 5 CFR 1201.154(d).
3. Amend Sec. 1201.154 by revising the introductory text paragraph
(d) to read as follows:
Sec. 1201.154 Time for filing appeal; closing record in cases
involving grievance decisions.
* * * * *
(d) If the appellant, other than an employee of the Postal Service
or any other employee excluded from the coverage of chapter 71 of title
5, United States Code, has filed a grievance with the agency under its
negotiated grievance procedure in accordance with 5 U.S.C. 7121, he may
ask the Board to review the final decision under 5 U.S.C. 7702 within
35 days after the date of issuance of the decision or, if the appellant
shows that the decision was received more than 5 days after the date of
issuance, within 30 days after the date the appellant received the
decision. The appellant must file the request with the Clerk of the
Board, Merit Systems Protection Board, Washington, DC 20419. The
request for review must contain:
* * * * *
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Dated: October 25, 1999.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 99-28285 Filed 10-29-99; 8:45 am]
BILLING CODE 7400-01-U
