Agency Administrative Grievance System

SUMMARY: The U.S. Office of Personnel Management (OPM) is abolishing

regulations at 5 CFR part 771 on the agency administrative grievance

system (AGS). However, any AGS established under the current

regulations must remain in effect until modified or replaced by the

agency with another dispute resolution process. This change implements

a human resources management recommendation under the National

Performance Review (NPR). The change also is consistent with OPM's

initiative under the NPR to sunset the Federal Personnel Manual (FPM),

which included abolishing FPM Chapter 771 on the AGS as of December 31,

1993.

EFFECTIVE DATE: October 11, 1995.

FOR FURTHER INFORMATION CONTACT:

Gary D. Wahlert (202) 606-2920.

SUPPLEMENTARY INFORMATION: The National Performance Review was issued

on September 7, 1993. Appendix C to the NPR is entitled Major

Recommendations Affecting Governmental Systems and includes a number of

recommendations concerning reinvention of human resource management.

One recommendation, HRM08, stated that agencies should ``improve

processes and procedures establishes to provide workplace due process

for employees'' and elaborated that ``[a]ll agencies should establish

alternative dispute resolution [ADR] methods and options for informal

disposition of employment disputes.'' Among other things, the

recommendation specifies that OPM should eliminate ``all regulations

governing internal agency grievance and appeal procedures, thus freeing

agencies to tailor ADR techniques to various situations.''

Proposed changes to implement this recommendation were published on

December 5, 1994 at 59 FR 62353 for public comment. Comments were

received from three agencies, two individuals, and two unions. The

agencies were generally supportive of the change while the individuals

and the unions were concerned that employees might be deprived of a

benefit if agencies are not required to have a AGS. These comments are

addressed below.

One agency, while supporting the opportunity to develop a grievance

procedure that fits their ``needs, resources, and particular

characteristics,'' commented that there is a need for ``limited''

Government-wide regulation. Here the agency recommends that OPM mandate

``universal standards'' of due process and a minimal avenue for seeking

redress of grievances in the interest of equity and fairness to

employees. One union comment was that OPM require the maintenance of

the AGS absent establishment of some other system. One individual

suggested that it is unnecessary for the current regulations to be

abolished in order for agencies to experiment with ADR techniques--such

experimentation could take place within the parameters of the

regulations.

OPM recognizes the concern that the absence of a regulatory

requirement to have an AGS could result in some agencies not having one

and that this in turn could result in adverse consequences such as

leaving some employees without a forum to resolve some types of

workplace disputes. OPM concurs with one agency's comment that the

unavailability of a forum could lead to loss of morale, increased

disaffection, and diminished worker productivity. OPM, however,

believes the risk of agencies not having a system is minimal. First,

the absence of an agency dispute resolution system would be contrary to

the intent of the NPR recommendation. Second, OPM strongly advises

agencies to have an administrative review system, and this aspect of

human resources management will be subject to OPM's review as part of

its oversight program. Third, the negative consequences of not having a

system are so clear that they should deter any agency from letting that

happen. Nevertheless, as suggested by one of the commenters, OPM is

retaining the single requirement that any AGS established under the

current regulations must remain in effect until modified or until that

AGS is replaced with another system or process for the resolution of

workplace disputes. The remainder of the current regulations are

abolished as proposed. OPM believes this course of action affords

agencies maximum flexibility while at the same time preserving the

rights of individual employees.

Here, OPM repeats and emphasizes the comment made when proposing

this change--that agencies are not precluded from continuing their AGS

procedures established under part 771 to resolve workplace disputes (in

fact, agencies arerequired to continue these procedures at least until

they are modified or replaced). Again, as noted when OPM proposed this

change, agencies, as suggested by the NPR, can take the opportunity to

use ADR techniques in helping resolve disputes in the workplace and to

do so without the restrictions contained in the current regulations

that might negatively affect agency flexibility to design and operate

appropriate workplace dispute resolution procedures. OPM's Office of

Labor Relations and Workforce Performance will be available upon

request to assist agencies in such efforts.

One commenter stated that elimination of the regulations would

serve to expand the scope of bargaining on the scope of negotiated

grievance procedures. OPM disagrees--the scope of such procedures is

dictated by the provisions of Chapter 71 of title 5 of the United

States Code. Elimination of part 771 does not expand or in any manner

modify the labor-management relations statute.

Conforming Amendments

OPM also is deleting references to part 771 as they appear

elsewhere in title 5 of the Code of Federal Regulations. In those

cases, the language is modified to refer generically to

``administrative'' grievances or

[[Page 47040]]

grievance systems to reflect the fact that agencies may have

administrative grievance systems even though they would no longer

technically be established under part 771, i.e., 5 CFR

Secs. 300.104(c)(2), 550.803, 752.203(f), 831.204(e)(2), and

842.106(e)(2). Likewise, other current references to ``administrative''

grievances in Title 5 (and not also referring to part 771) remain

unchanged, i.e., 5 CFR Secs. 511.607(a)(1) and 550.804(b)(1).

Executive Order 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with Executive Order 12866.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic

impact on a substantial number of small entities because it applies

only to Federal employees.

List of Subjects

5 CFR Part 300

Freedom of information, Government employees, Reporting and

recordkeeping requirements, Selective Service System.

5 CFR Part 550

Administrative practice and procedure, Claims, Government

employees, Wages.

5 CFR Part 752

Administrative practice and procedure, Government employees.

5 CFR Part 771

Administrative practice and procedure, Government employees.

5 CFR Part 831

Administrative practice and procedure, Alimony, Claims, Disability

benefits, Firefighters, Government employees, Income taxes,

Intergovernmental relations, Law enforcement officers, Pensions,

Reporting and recordkeeping requirements, Retirement.

5 CFR Part 842

Air traffic controllers, Alimony, Firefighters, Government

employees, Law enforcement officers, Pensions, Retirement.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending title 5 of the Code of Federal

Regulations as follows:

PART 300--EMPLOYMENT (GENERAL)

1. The Authority citation for part 300 continues to read as

follows:

Authority: 5 U.S.C. 552, 3301, and 3302; E.O. 10577, 3 CFR 1954-

1958 Comp., page 218, unless otherwise noted.

Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201,

7204, and 7701; E.O. 111478, 3 CFR 1966-1970, Comp., page 803.

Secs. 300.401 through 300.408 also issued under 5 U.S.C. 1302(c),

2301, and 2302.

Secs. 300.501 through 300.507 also issued under 5 U.S.C.

1103(a)(5).

Sec 300.603 also issued under 5 U.S.C. 1104. Secs. 300.801 through

300.802 issued under 5 U.S.C. 1103(c).

2. In Sec. 300.104, paragraph (c)(2) is revised to read as follows:

Sec. 300.104 Appeals, grievances and complaints.

* * * * *

(c) * * *

(2) Except as provided in paragraph (c)(1) of this section, an

employee may file a grievance with an agency when he or she believes

that an employment practice which was applied to him or her and which

is administered or required by the agency violates a basic requirement

in Sec. 300.103. The grievance shall be filed and processed under an

agency grievance system, if applicable, or a negotiated grievance

system as applicable.

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart H--Back Pay

3. The authority citation for subpart H of part 550 continues to

read as follows:

Authority: 5 U.S.C. 5596(c); Pub. L. 100-202, 101 Stat. 1329.

4. In section 550.803, the definition of ``grievance'' is revised

to read as follows:

Sec. 550.803 Definitions

* * * * *

Grievance has the meaning given that term in section 7103(a)(9) of

title 5, United States Code, and (with respect to members of the

Foreign Service) in section 1101 of the Foreign Service Act of 1980 (22

U.S.C. 4131). Such a grievance includes a grievance processed under an

agency administrative grievance system, if applicable.

* * * * *

PART 752--ADVERSE ACTIONS

5. The authority citation for part 752 continues to read as

follows:

Authority: 5 U.S.C. 7504, 7514, and 7543.

6. In section 752.203, paragraph (f) is revised to read as follows:

Sec. 752.203 Procedures.

* * * * *

(f) Grievances. The employee may file a grievance through an agency

administrative grievance system (if applicable) or, if the suspension

falls within the coverage of an applicable negotiated grievance

procedure, an employee in an exclusive bargaining unit may file a

grievance only under that procedure. Sections 7114(a)(5) and 7121(b)(3)

of title 5 U.S.C., and the terms of any collective bargaining

agreement, govern representation for employees in an exclusive

bargaining unit who grieve a suspension under this subpart through the

negotiated grievance procedure.

* * * * *

PART 771--AGENCY ADMINISTRATIVE GRIEVANCE SYSTEM

7. Part 771 is revised to read as follows:

PART 771--AGENCY ADMINISTRATIVE GRIEVANCE SYSTEM

Sec.

771.101 Continuation of Grievance Systems.

Authority: 5 U.S.C. 1302, 3301, 3302, 7301; E.O. 9830, 3 CFR

1945-1948 Comp., pp. 606-624; E.O. 11222, 3 CFR 1964-1969 Comp., p.

306.

Sec. 771.101 Continuation of Grievance Systems.

Each administrative grievance system in operation as of October 11,

1995, that has been established under former regulations under this

part must remain in effect until the system is either modified by the

agency or replaced with another dispute resolution process.

PART 831--RETIREMENT

8. The authority citation for part 831 continues to read as

follows:

Authority: 5 U.S.C. 8347: Sec. 831.102 also issued under 5

U.S.C. 8334; Sec. 831.106 also issued under 5 U.S.C. 552a;

Sec. 831.108 also issued under 5 U.S.C. 8336(d)(2);

Sec. 831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2);

Sec. 831.204 also issued under section 7202(m)(2) of the Omnibus

Budget Reconciliation Act of 1990, Pub. L. 105-508, 104 Stat. 1388-

339; Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2);

Sec. 831.502 also issued under 5 U.S.C. 8337; Sec. 831.502 also

issued under section 1(3), E.O. 11228, 3 CFR 1964-1965 Comp.;

Sec. 831.663 also issued under 5 U.S.C. 8339(j) and (k)(2);

Secs. 831.663 and 831.664 also issued under section

[[Page 47041]]

11004(c)(2) of the Omnibus Budget Reconciliation Act of 1993, Pub. L.

103-66; Sec. 831.682 also issued under section 201(d) of the Federal

Employees Benefits Improvement Act of 1986, Pub. L. 99-251, 100

Stat. 23; subpart S also issued under 5 U.S.C. 8345(k); subpart V

also issued under 5 U.S.C. 8343a and section 6001 of the Omnibus

Budget Reconciliation Act of 1987, Pub. L. 100-203, 101 Stat. 1330-

275; Sec. 831.2203 also issued under section 7001(a)(4) of the

Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508; 104

Stat. 1388-328.

9. In section 831.204, paragraph (e)(2) is revised to read as

follows:

Sec. 831.204 Elections of retirement coverage under the Portability of

Benefits for Nonappropriated Fund Employees Act of 1990.

* * * * *

(e) * * *

(2) The procedures must not allow review under any employee

grievance procedures, including those established by chapter 71 of

title 5, United States Code.

* * * * *

PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY

10. The authority citation for part 842 continues to read as

follows:

Authority: 5 U.S.C. 8461(g); Sections 842.104 and 842.106 also

issued under 5 U.S.C. 8461(n); Sec. 842.105 also issued under 5

U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106 also issued under

sec. 7202(m)(2) of the Omnibus Budget Reconciliation Act of 1990,

Pub. L. 101-508, and 5 U.S.C. 8402(c)(1); Sections 842.604 and

842.611 also issued under 5 U.S.C. 8417; Section 842.607 also issued

under 5 U.S.C. 8416 and 8417; section 842.614 also issued under 5

U.S.C. 8419; section 842.615 also issued under 5 U.S.C. 8418;

Sec. 842.703 also issued under sec. 7001(a)(4) of the Omnibus Budget

Reconciliation Act of 1990, Public Law 101-508; section 842.707 also

issued under section 6001 of the Omnibus Budget Reconciliation Act

of 1987, Pub. L. 100-203; section 842.708 also issued under section

4005 of the Omnibus Budget Reconciliation Act of 1989, Pub. L. 101-

239 and section 7001 of the Omnibus Budget Reconciliation Act of

1990, Pub. L. 101-508; subpart H also issued under 5 U.S.C. 1104.

11. In Section 842.106, paragraph (e)(2) is revised to read as

follows:

Sec. 842.106 Elections of retirement coverage under the Portability of

Benefits for Nonappropriated Fund Employees Act of 1990.

* * * * *

(e) * * *

(2) The procedures must not allow review under any employee

grievance procedures, including those established by chapter 71 of

title 5, United States Code.

* * * * *

[FR Doc. 95-22314 Filed 9-8-95; 8:45 am]

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