[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 [email protected].

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

[[Page 58799]]

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:
* * * * *

[[Page 58800]]

    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