[Federal Register Volume 76, Number 237 (Friday, December 9, 2011)]
[Rules and Regulations]
[Pages 76873-76874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31549]



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  Federal Register / Vol. 76, No. 237 / Friday, December 9, 2011 / 
Rules and Regulations  

[[Page 76873]]



GOVERNMENT ACCOUNTABILITY OFFICE

4 CFR Part 28


Personnel Appeals Board; Procedural Rules

AGENCY: Government Accountability Office Personnel Appeals Board.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Government Accountability Office Personnel Appeals Board 
(the Board or PAB) is amending its regulations to reflect a change in 
law concerning grievance procedures. The amended rule provides a choice 
of forum to employees with prohibited personnel practice claims. We are 
taking this opportunity to change some specific terms in the 
regulations to ones more commonly used throughout the government.

DATES: This rule is effective December 9, 2011. Comments must be 
received by the Board on or before February 7, 2012.

ADDRESSES: You may submit comments by any of the following methods:
    Mail: Patricia Reardon-King, Clerk of the Board, Personnel Appeals 
Board, U.S. Government Accountability Office, Suite 560, Union Center 
Plaza II, 820 First St. NE., Washington, DC 20002; email: [email protected]; 
or fax: (202) 512-7525.

FOR FURTHER INFORMATION CONTACT: Beth Don, Executive Director, or Susan 
Inzeo, Solicitor, (202) 512-6137.

SUPPLEMENTARY INFORMATION: The Government Accountability Office 
Personnel Appeals Board is authorized by Congress, pursuant to 31 
U.S.C. 751-755, to hear and decide cases brought by GAO employees 
concerning various personnel matters including adverse or performance-
based actions, claims of discrimination, alleged prohibited personnel 
practices, and labor-management relations. The Board also exercises 
oversight authority over equal employment opportunity at the agency. 
The Board's procedural regulations applicable to GAO appear at 4 CFR 
parts 27 and 28. The Board is revising one section of these regulations 
to ensure consistency with current law.
    The Board published section 28.2(c)(2) on November 23, 1993, 
effective January 1, 1994 (58 FR 61998, Nov. 23, 1993). The Board's 
regulation mirrored that of the Merit Systems Protection Board (MSPB) 
and conformed with 5 U.S.C. 7121. The regulations provided that 
bargaining unit employees could pursue prohibited personnel practice 
(PPP) claims at the Board or the MSPB, respectively, only if those 
claims involved discrimination, performance-based reduction in grade or 
removal, or an adverse action as defined in 5 U.S.C. 7512; an employee 
could choose either the administrative appeal route or the negotiated 
grievance procedure but not both. An individual with PPP claims beyond 
those specified in the PAB regulation or the earlier MSPB regulation 
did not have a choice of forum.
    In 1994, Congress amended 5 U.S.C. 7121 by requiring that 
bargaining unit employees could elect to raise any PPP claim within the 
MSPB's jurisdiction either to the MSPB or through the parties' 
negotiated grievance procedures. Public Law 103-424, sec. 9(b), 108 
Stat. 4361, 4365 (Oct. 29, 1994). The PAB now amends its regulations to 
ensure that GAO employees' rights are consistent with the statute. The 
amendment provides that a GAO employee who seeks to bring a PPP claim 
that is covered by a negotiated grievance procedure may elect either 
the negotiated grievance procedure or the procedure under PAB 
regulations. The special rule for such claims that involve allegations 
of discrimination remains unchanged.
    The Board is making this amendment effective immediately upon 
publication, on an interim basis, to conform the regulation with the 
statutory requirement of 5 U.S.C. 7121. See GAO Employee Organization, 
IFPTE Local 1921 v. GAO, PAB Docket No. LMR 2001-02 (Aug. 24, 2011). At 
the same time, however, the Board is soliciting comments on the 
amendment. These comments will be considered fully before the final 
regulation is adopted.
    On September 19, 2011, GAO issued revised Order 2351.1 regarding 
``Reduction in Force Procedures for the Government Accountability 
Office.'' This Order was previously titled ``Workforce Restructuring 
Procedures for the Government Accountability Office.'' However, as 
stated in the revised Order, instead of ``GAO-specific terms,'' the 
Order is now adopting ``governmentwide reduction-in-force terminology--
i.e., reduction in force (RIF) is used rather than workforce 
restructuring.'' In order to conform with GAO's revised Order, the 
Board is substituting ``Reduction in Force'' for the term ``Workforce 
Restructuring Action,'' in the definition section 28.3. It also is 
substituting Reduction in Force throughout part 28.
    The Board is also making two additional nonsubstantive corrections 
to the regulations in the Table of Contents for part 28 and in section 
28.113.

List of Subjects in 4 CFR Part 28

    Administrative practice and procedure, Claims, Government 
employees, Labor-management relations, Reduction in force.

    For the reasons set forth in the preamble, 4 CFR part 28 is amended 
as follows:

PART 28--GOVERNMENT ACCOUNTABILITY OFFICE PERSONNEL APPEALS BOARD; 
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT 
THE GOVERNMENT ACCOUNTABILITY OFFICE

0
1. The authority citation for part 28 continues to read as follows:

    Authority:  31 U.S.C. 753.


0
2. In part 28, revise all references to ``Workforce Restructuring 
Action'' to read ``Reduction in Force'', and revise all references to 
``WRA'' to read ``RIF''.

0
3. Amend Sec.  28.2 by revising paragraph (c)(2), redesignating 
paragraph (c)(3) as paragraph (c)(4), adding new paragraphs (c)(3) and 
(d) to read as follows:


Sec.  28.2  Jurisdiction.

* * * * *
    (c) * * *
    (2) Matters involving prohibited personnel practices. If the 
negotiated grievance procedure permits the employee to grieve an 
appealable action involving a prohibited personnel

[[Page 76874]]

practice other than prohibited discrimination (as defined in Sec.  
28.95), such an action may be raised under either, but not both, of the 
following procedures:
    (A) The Board's procedures; or
    (B) The negotiated grievance procedure.
    The employee will be deemed to have elected the Board's procedures 
if the employee files a timely charge with the Board's Office of 
General Counsel before filing a timely grievance.
    (3) Other matters. If the negotiated grievance procedure permits 
the employee to grieve any matters which would otherwise be appealable 
to the Board, other than those listed in paragraphs (c)(1) or (c)(2) of 
this section, then those matters may only be raised under the 
negotiated grievance procedure and not before the Board.
* * * * *
    (d) Except for actions involving prohibited discrimination (under 
Sec.  28.95) or any other prohibited personnel practice, any appealable 
action that is excluded from the application of the negotiated 
grievance procedure may be raised only under the Board's procedures.

0
4. In Sec.  28.12, revise the section heading to read as follows:


Sec.  28.12  General Counsel Procedures.

* * * * *

0
5. In Sec.  28.113, revise paragraph (a)(5) to read as follows:


Sec.  28.113  Contents of representation petitions.

    (a) * * *
    (5) A declaration by the signer of the petition, under penalties of 
the Criminal Code (18 U.S.C. 1001), that the petition's contents are 
true and correct, to the best of his or her knowledge and belief;
* * * * *

Steven H. Svartz,
Chair, Personnel Appeals Board, U.S. Government Accountability Office.
[FR Doc. 2011-31549 Filed 12-8-11; 8:45 am]
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