[Material Transmitted]{.underline}

None

[Material Superseded]{.underline}

HHS Instruction 771-3-60, Requests For Reconsideration

[Background]{.underline}

Under HHS Instruction 771-3-60 the Department reserved the right, at its
discretion, to reconsider grievance decisions issued under the
Instruction. Office of Personnel Management Regulations (5 CFR Part 771)
do not provide for appeals of grievance decisions.

Consistent with the continuous improvement initiatives, the Department
has decided to discontinue the reconsideration step of the HHS grievance
procedure and abolish HHS Instruction 771-3-60.

OPDIVs may establish a reconsideration process within their organization
to ensure the objectivity of the Departmental grievance procedure.
Instruction 771-3-60 was narrowly drafted to avoid reconsideration in
the absence of a clear, specific and substantive violation of law or
clearly arbitrary and capricious decision. Therefore, it is recommended
that the OPDIVs use these provisions of the Instruction as a guide.

The abolishment of Instruction 771-3-60 will be effective for grievances
filed after April 1, 1995.

> Thomas S. McFee
>
> Assistant Secretary for
>
> Personnel Administration

Distribution: MS (PERS): HRFC-001

Subject: EMPLOYEE GRIEVANCES

771-3-00 Purpose, Authority, and Coverage

10 References

20 Summary of Procedures

30 Informal Procedure

40 Formal Procedure

50 General Provisions

Exhibit 771-3-A Sample Grievance Format

Exhibit 771-3-B Sample Decision Format

Exhibit 771-3-C Requesting An Examiner

Exhibit 771-3-D Delegation of Authority

Exhibit 771-3-E Hearing Guidelines

[771-3-00]{.underline} PURPOSE, AUTHORITY, AND COVERAGE

This Instruction sets forth the Departmental grievance procedures. It
does not pertain to grievances of bargaining unit employees when the
grievances are covered by the grievance procedures negotiated in a
labor-management agreement. The Departmental grievance procedures have
been established under 5 CFR Part 771, which are regulations issued by
the Office of Personnel Management (OPM) . This Instruction incorporates
those regulations by reference. (A copy of those regulations is
contained in Federal Personnel Manual Supplement 990-1, Book III.) For
employees and matters covered by the Departmental grievance procedures,
see subsections 771-3-50C through E below (pages 8 - 10). .

[771-3-10]{.underline} REFERENCES

A.  U.S.C. Chapter 71 (law\-- labor-management relations)

    CFR Part 771 (regulations\-- agency grievance systems)

    FPM Chapter 771 (OPM issuance on agency grievance systems)

    HHS Instruction 293-1/1613-2 (records disposal)

    HHS Instruction 293-2 (personnel files)

    HHS Instruction 302-1 (excepted positions)

    HHS Instruction 335-1 (reassignment to a position in a different
    commuting area)

    HHS Instruction 430-2 (performance appraisal\--PMRS and SES)

    HHS Instruction 430-4 (performance appraisal\--EPMS)

    HHS Instruction 751-1 (official reprimands)

    HHS Instruction 752-1 (adverse actions)

Responsible office: Division of Program Coordination, Office of the
Assistant Secretary. for Personnel Administration (FTS 475-0142)

(771-3.10 continued) .

L. HHS Instruction 772-1 (coverage, appeal, and grievance rights)

M. HHS Instruction 1613-3 (discrimination complaints)

[771-3-20]{.underline} SUMMARY OF PROCEDURES

The procedures consist of an [informal procedure]{.underline} (Stage 1)
and a [formal procedure]{.underline} (Stage 2) that includes fact
finding by an examiner when appropriate. Exhibits 771-3-A and B contain
sample formats that can be used in presenting a grievance or issuing a
grievance decision. (Persons not familiar with the general provisions
and definitions applicable to the grievance procedures may find it
helpful to review section 771-3-SO, General Provisions, \[pages 7
through 14\] before reading further.)

[771-3-30]{.underline} INFORMAL PROCEDURE (Stage 1)

A.  At any time during the informal procedure, the grievance may be
    resolved [either]{.underline} by a written decision that grants in
    its entirety the personal relief specified by the employee
    [or]{.underline} by a written. agreement that is signed by the
    employee and the grievance official and made part of the record.

    The informal procedure applies to all grievances\--except that
    grievances about grievable adverse actions, grievable separations
    (see subsection 771-3-SOD on pages 8 and 9), and reassignments to a
    different commuting area under HHS In- struction 335-1 all
    [begin]{.underline} at the formal (Stage 2) procedure.

    1.  [Presentation]{.underline}

        a.  [To Whom Presented\
            \
            ]{.underline}The employee presents the grievance in writing
            to the Stage 1 Official and provides a copy of the written
            grievance to the employee\'s immediate supervisor (when the
            Stage 1 Official is not the employee\'s immediate
            supervisor). (There is no entitlement to an oral grievance
            presentation.)\
            \
            The Stage 1 Official is-the first official within the
            Department who has authority over the matter grieved. This
            is usually the official who made the decision or committed
            the act or omission about which the employee is
            dissatisfied. However:\
            \
            (1) The appointing official (as distinguished from a
            selecting official) is the Stage 1 official for a grievance
            about a vacancy selection under the merit promotion
            procedures. (An appointing official has authority to approve
            an SF-50, "Notification of Personnel Action," and usually is
            the Servicing Personnel Officer.) (For grievability, see
            771-3- 50E.5 on page 10.)\
            \
            (2) The appointing official is the Stage 1 Official for a
            grievance about a decisions made in the Personnel Office,
            e.g., a qualifications, determinations, rejection of an
            application for a position vacancy, or a salary-setting
            determination.\
            \
            (3) For performance appraisal grievances, the official who
            gave final approval to the summary rating is the Stage 1
            Official. (When this official is not the appraising
            official, he or she may elect to consult with the
            appraising. official.) Depending on the circumstances of
            each summary rating, this official could be the appraising
            official, the reviewing official, or the official with
            responsibility for the applicable performance awards budget.
            See 5 CFR Part 430, HHS Personnel Instructions 430-2 and
            430-4, and any supplemental-issuances thereto. For EPMS
            employees, see- particularly paragraphs 80A.11 and 12 of HHS
            Instruction 430-4. For PMRS employees, see particularly
            paragraphs 80A.8 and 9 Of HHS Instruction 430-2.- -

            [Content\
            \
            ]{.underline}To distinguish mere inquiries from grievances
            the employee must specifically state in the written
            grievance that he or she is making a Stage 1 grievance
            presentation under the Departmental grievance procedures.
            The written grievance must also furnish sufficient detail to
            identify clearly the matter being grieved, explain the basis
            for the grievance, and specify the personal relief (i.e., a
            specific remedy directly benefiting the grievant) requested
            by the employee. The grievance should contain all available
            evidence, documentation, and argument to support the
            grievance and to justify the personal relief requested. .
            \"(See subsection 771-3-5 on pages 11 and 12 for information
            on rejection of grievance for failure to meet content
            requirements.)

            [Time Limit\
            \
            ]{.underline}The Stage 1 presentation must be presented
            within 30 calendar days after the act or occurrence (or the
            date the employee became aware of the act or occurrence)
            that causes the employee to be aggrieved. (See subsection
            771-3-50L on pages 11 and 12 for information on rejection of
            a grievance for failure to meet the time limit.)

            [Waiver of Requirements]{.underline}\
            \
            Any of the requirements regarding either the content or the
            time limit for a Stage 1 presentation may be waived at the
            discretion of the Stage 1 Official if he or she does so in
            writing.

        [Decision]{.underline}

        a.  As soon as possible but within 14 calendar days after
            receipt of the written grievance, the Stage 1 Official
            informs the employee in writing and in duplicate of the
            decision and the reasons therefor. This time limit may be
            extended in writing at the discretion of the employee., When
            the grievance has not been resolved, the decision states
            whom the employee must contact to pursue the formal
            (Stage 2) grievance procedure and that the time limit- for
            doing so is 14 calendar days after receipt of the Stage 1
            decision.

            [Failure to Issue Timely Decision\
            \
            ]{.underline}If the Stage 1 Official fails to issue a
            decision within the applicable time limit as may be
            extended, the employee may, at the employees option, either
            proceed to Stage 2 or await the issuance of the Stage 1
            decision.

771-3-40 FORMAL PROCEDURE (Stage 2)

A.  [Presentation]{.underline}

    1.  Within 14 calendar days after receipt of the Stage 1 decision
        (or within 14 calendar days after the effective date of a
        grievable adverse action, a grievable separation, or
        reassignment to a different commuting area, all of which begin
        at the formal procedure \[see subsection 771-3-30B on page 2\]),
        the employee presents his or her. grievance to the Stage 2
        Official in the same manner as in the informal (Stage 1)
        grievance (and provides a copy of the written grievance to the
        employee\'s immediate supervisor when the grievance begins at
        the formal procedure):

        a.  The employee must specifically state in the written
            grievance presentation that he or she is making a formal
            (Stage 2) grievance presentation. (There is no entitlement
            to an oral grievance presentation.) ,

            The presentation must furnish sufficient detail to identify
            clearly the matter being grieved, explain the basis for the
            grievance, and specify the personal relief requested by the
            employee, and should contain all available evidence,
            documentation, and argument to support the grievance and to
            justify the personal relief requested.

            The presentation must include a copy of the Stage 1
            grievance presentation (if applicable) and a copy of the
            Stage 1 decision (or state that one was not issued) and
            should clearly state the reasons for disagreeing with the
            Stage 1 decision, if one was issued.

            The formal grievance must be limited- to grievable matters
            that were previously reviewed but not resolved to the
            employee\'s satisfaction in the informal grievance
            procedure.

        Any of the requirements regarding either the content or the time
        limit for a Stage 2 presentation may be waived by the Stage 2
        Official if he or she specifically does so in writing.

    [Resolution by Written Agreement\
    \
    ]{.underline}At any time during the formal procedure, the grievance
    may be resolved either by a written decision that grants in its
    entirety the personal relief requested by the employee or by a
    written agreement that is signed by the employee and the Stage 2
    Official and made part of the record.

    [Decision Without Examiner or Request for Examiner]{.underline}

    1.  When there are no substantive facts in dispute, the Stage 2
        Official may at his or her option [either]{.underline} (1)
        proceed to decision [or]{.underline} (2) request an examiner
        even though substantive facts are not in dispute. [As soon as
        possible but within 25 calendar days after his or her receipt of
        the formal grievance, the Stage 2 Official shall either issue
        the written decision in duplicate or request an
        examiner]{.underline}. The time limit may be extended in writing
        at the discretion of the employee..

        a.  [Decision Without Examiner\
            \
            ]{.underline} A decision without an examiner shall (after
            consultation with the Servicing Personnel Office \[see
            subsection 771-3-50.0 on page 13\]) be in writing; state
            that, because there are no substantive facts in dispute, an
            examiner has not been requested; include a report of
            findings and the reasons for the decision (OPM Regulation 5
            CFR 771.302\[f\]); and state the right to request
            reconsideration under the provisions of section 771-3-60,
            enclosing a copy of that section (see pages 15 -17).

            [Request for Examiner]{.underline}\
            \
            When the Stage 2 Official is unable to resolve the grievance
            to the employee\'s satisfaction and determines either (1)
            that substantive facts are in dispute or (2) that the Stage
            2 Official desires an examiner even though substantive facts
            are not in dispute, the Stage 2 Official shall request an
            examiner to make inquiry and provide a report of findings
            and recommendations. (Exhibit 771-3-C explains how to
            request an examiner.)

        [Time Limit Not Met\
        \
        ]{.underline}However, if the Stage 2 Official fails to issue a
        decision within the time limit, as may be extended, or request
        an examiner, the employee may, at the employees option,
        either (a) await the issuance of the decision or (b) report the
        matter in writing to the Head of the requisite HHS Operating
        Division (for example, Commissioner of Social Security, or
        Assistant Secretary for Health) or, for the Office of the
        Secretary, to the Assistant Secretary for Management and Budget.
        If the matter is referred to the appropriate Operating Division
        Head, that official or his or her designee shall order
        expeditious issuance of the decision.

    [The Examiner]{.underline}

    1.  [Appointment of Examiner]{.underline}:\
        \
        Examiners are normally obtained through procurement sources but
        in unusual circumstances can be obtained from the Department
        (see Exhibit 771-3-C).

        [The Inquiry]{.underline}

        a.  [Administrative Arrangements\--]{.underline} The Stage 2
            Official or his or her designee shall be responsible for
            making available such space and other administrative
            services, including recording and transcribing services, as
            the examiner may need to conduct the inquiry.

            [Method of Inquiry]{.underline} \--At the discretion of the
            examiner, the inquiry may consist of a documentary review,
            personal interviews, a group meeting, a formal hearing (see
            Exhibit 771-3-E), or any combination thereof.

            [Establishment of Grievance File]{.underline}\--The examiner
            will keep the grievance file intact as received from the
            Stage 2 Official. The examiner will only add to the file,
            not delete from it or rearrange it. When the examiner has
            completed-the inquiry, he or she shall make all documents in
            the grievance file available to (1) the employee and (2) the
            Stage 1 Official (or the Deciding Official for grievable
            adverse actions and other actions that are grievable
            beginning at Stage 2 \[see subsection 771-3-40A.l on page
            4\] for review and written comment unless they waive
            opportunity for review and comment.

            [Report of Findings and Recommendation]{.underline}\--The
            examiner normally shall issue the report to the Stage 2
            Official as soon as possible but usually no later than 90
            calendar days after the examiner\'s receipt of the
            grievance. The report is advisory and does not constitute a
            decision. The examiner shall provide the employee with a
            copy of the report.

    [Decision After Examiner\'s Report\
    \
    ]{.underline}The Stage 2 Official shall (after coagulation with the
    Servicing personnel Office \[see subsection 771-3-50.0 on page 13\])
    issue the written decision in duplicate to the employee as soon as
    possible but within 25 calendar days after receipt of the examiners
    report and the grievance file. The decision must include a report of
    findings and the reasons for the decision (OPM Regulation 5 CFR
    771.302\[f\]), and state the right to request reconsideration under
    the provisions of section 771-3-60, enclosing a copy of that section
    (see pages 15 - 17). If the Stage 2 Official adopts the examiner\'s
    report as the findings and the reasons for his decision, a brief
    statement to that effect in the decision is sufficient to satisfy
    the OPM requirement (5 CFR 771.302\[f\]) for \"a report of findings
    and reasons for the determination.\" If the decision disagrees with
    the examiner\'s recommendation(s) when the examiner\'s
    recommendation(s) are favorable to the employee, it shall also give
    a specific statement of the basis for that disagreement. The time
    limit may be extended in writing at the discretion of the employee.
    However, if the time limit, as may be\' extended, is not met, the
    procedures indicated in paragraph 771-3-40C.2 on page 6 apply.

771-3-50 GENERAL PROVISIONS

A.  [Definitions]{.underline}: The following definitions supplement
    those contained in OPM Regulation 5 CFR 771.202:

    (771-3-50A continued)

    1.  [Discrimination]{.underline} means discrimination because of
        race, color, religion, sex, national origin, physical or mental
        handicap, or age when the complainant is 40 years of age or
        over.

        [Stage 1 Official]{.underline} is the first official within the
        Department with authority over the matter grieved. (It is the
        matter grieved as such, rather than the relief sought, that
        determines the Stage 1 Official, although in some instances the
        relief sought may be identical to the matter grieved.) (For
        further clarification, see paragraph 771-3-30B.1a on pages 2 and
        3.)

        [Stage 2 Official]{.underline} is the official with delegated
        authority to issue the formal grievance decision. (Delegations
        are stated in Exhibit 771-3-D and supplemental issuances by the
        Department\'s Operating Divisions.) OPM Regulation 5 CFR
        771.302(f)(l) requires that this official must be \"at a higher
        level than any employee involved in any phase of the grievance,
        except when the \[Secretary\] has been involved.\" Similarly,
        for performance appraisal grievances, OPM Regulation 5 CFR
        430.407(e) requires that this official be \"a person at a higher
        level in the organization than the appraising, reviewing, or
        approving official. . . ."

        [Employee]{.underline} means the grievant, including the
        grievant\'s representative. It does not include Officers of the
        Commissioned Corps of the U.S. Public Health Service or other
        employees who are excluded from coverage by OPM Regulations 5
        CFR Part 77l. -

    [Agency Coverage]{.underline}: The Department is an \"agency\"
    covered by OPM Regulation 5 CFR 771.203.

    [Employee Coverage]{.underline}: Generally, all nonbargaining unit
    employees are covered. Bargaining unit employees are covered only
    when a negotiated grievance procedure does not apply. See OPM
    Regulation 5 CFR 771.204 and Grievance Coverage below.

    [Grievance Coverage]{.underline}: See OPM Regulation 5 CFR 771.205.
    Coverage is extended to the following separation actions only:
    removals effected against an employee in Schedule A of the excepted
    service in tenure group I or II who has completed\" 1 year of
    current continuous employment in the same or similar positions (see
    HHS Instruction 302-1), [when]{.underline} the employee is not
    entitled to appeal to the Merit Systems Protection
    Board[.]{.underline} Also, coverage is extended to bargaining unit
    employees whose complaints are not covered by the negotiated
    grievance procedure applicable to their unit and provided the
    complaint meets the requirements and provisions of the Departmental
    grievance system. HHS Instruction 772-1 contains a chart that
    identifies and summarizes the rights of various employees to appeal
    or grieve removals, suspensions, reductions in grade and pay, and
    furloughs of 30 days or less.

    [Exclusions:]{.underline} See OPM Regulation 5 CFR 771.206. Also
    excluded are the following:

    1.  Requests for retroactive promotion or retroactive . adjustment
        of a promotion date when the conditions required for such
        retroactivity by applicable decisions of the Comptroller General
        of the United States are not met. These conditions, generally.
        stated, are: (1) a specific date for promotion was approved by
        an [appointing]{.underline} official (as distinguished, from
        selecting and re-commending officials) but
        [thereafter]{.underline} the promotion was not processed because
        of administrative oversight or error or (2) the promotion was
        withheld in specific violation of provisions of statute,
        Executive order, or labor-management agreement when the
        provisions have .[mandatory]{.underline} effect. See Comptroller
        General 4(C.G.) Decisions B-190408 of December 21, 1977;
        B-183969 of July 2, 1975; B-194122 of June 5, 1979; and 52 C.G.
        631 (1973).

        Matters (e.g., acts, failures to act, or failures to meet
        standards in a critical job element) that are included as the
        basis -(e.g., reasons, charges, or specifications) for a
        personnel action under Part 752 or Part 432 of OPM Regulations 5
        CFR that is appealable to the Merit Systems Protection Board.

        A performance progress review, documentation of performance, the
        methods used to appraise performance during the appraisal period
        (including the methods used to conduct and document a
        performance progress review), as well as any tentative,
        preliminary appraisal under Instruction 430-2 or Instruction
        430-4 (but the above are reviewable when included in a grievance
        about a summary rating \[see paragraph 80A.11 of Instruction
        430-2 and paragraph 80A.14 of Instruction 430-4\]).

        Complaints about the content of published Department policy when
        the complaint is a disagreement with the policy rather than a
        complaint that a policy has been misinterpreted or misapplied.
        \"Department\" policy means a policy or regulation issued at
        either the Department level; the Operating Division level; or in
        a labor-management agreement under 5 U.S.C. Chapter 71,
        regardless of the level at which the agreement was negotiated.
        (However, grievances about the latter usually fall under a
        negotiated grievance procedure rather than under the
        Departmental grievance procedure. ) \"published\" policy means a
        policy issued for distribution in writing by a legitimate
        authority and does not include unwritten practices or customs.

        Complaints about failure to receive a noncompetitive promotion
        or nonelection for competitive promotion from a group
        of-properly ranked and certified candidates under the merit
        promotion program. . However, when the complaint alleges
        preelection or impropriety in the competitive-ranking,
        certification, or. selection process, the complaint is. covered
        (i.e., is not excluded). (For corrective actions, \"see Appendix
        A of Chapter 335, Federal Personnel Manual.

    [Use of Official Time:]{.underline} The Department interprets the
    phrase \"to present the grievance,\" in OPM Regulation 5 CFR
    771.3020 to mean: \"to present the grievance and to prepare that
    portion of the grievance which the employee could not normally be
    expected to prepare outside of the employees\' regular work hours

    [Travel, Per Diem, and Contractual Costs:]{.underline} The
    employing. organization of the employee must pay (either directly or
    by reimbursement) the travel, per diem, and contractual or
    procurement costs of examiners and employees required by proper
    authority for grievance proceedings. However, travel and per diem
    payments are not authorized for an employee\'s representative who is
    not an employee of this Department. The Department may but is not
    obliged to make travel and per diem payments for an employee\'s
    representative who is an employee of this Department. Private
    individuals (i.e., not civilian employees of the Federal Government)
    may be paid travel and per diem in lieu of subsistence under 5
    U.S.C. 5703, when the examiner has determined that their testimony
    as a witness is substantial, material and necessary and that an
    affidavit will not adequately suffice (48 C.G.110 and 644). Payment
    by the Department for costs incurred - by the employee for
    representation is not authorized.

    [Assurance to Employee and Representative:]{.underline} The employee
    and representative are assured of the rights stated in OPM
    Regulation 5 CFR 771.302.

    [Disallowance of Representative:]{.underline} The official who may
    disallow the employee\'s choice of representative under OPM
    Regulation 5 CFR 771.302(c)(2) is the grievance official, i.e., the
    Stage 1 or Stage 2 Official depending upon the stage at which the
    grievance currently is under review.

    [Labor Consultation or Negotiation]{.underline}: All management
    officials are reminded that, in the implementation of this
    Instruction, they must comply fully with the requirements of The
    Federal Service Labor-Management Relations Statute (Chapter 71 of
    Title 5 of the U.S. Code and related amendments to 5 U.S.C.
    5596(b)\-- the Back-Pay Act) concerning: consultation or
    negotiation,. as appropriate.

    [Availability of Procedures]{.underline}: Each Servicing Personnel
    Office shall make available to the employees it services copies: of
    this Instruction.

    [Rejection of Grievance:]{.underline} A grievance may be rejected,
    either wholly or partially, as appropriate, at any stage by a
    grievance official (i.e. by the Stage l, or Stage 2 Official
    depending upon the stage at which the grievance. is being reviewed)
    when the grievance:

    1.  Does not specifically state that it is a grievance
        representation in the manner required at Stage 1 by
        ,subparagraph 771-3-30B.lb (see page-3) and at Stage 2 by
        subparagraph 771-3-40A.la (see page 4) or

        Does not furnish sufficient detail to identify clearly the
        matter being grieved or

        Does not specify the personal relief sought or

        Consists of a matter or matters that are either not covered by
        the Departmental Grievance Procedure or are not subject to the
        control of Department management or

        IS made by an employee or nonemployee who is not covered by the
        Departmental Grievance Procedure or

        Is not timely.\
        \
        A rejection decision will cite the relevant section(s) of this
        Instruction, together with the relevant section(s) of 5 CFR Part
        771 as may be appropriate, and will provide an explanation of
        why the cited sections are applicable to the rejection.\
        \
        The rejection decision also will state the right to request
        reconsideration under the provisions of section 771-3-60 and
        will enclose a copy of section 771-3-60 (see pages 15 - 17).

    [Cancellation of Grievance:]{.underline} A grievance may be
    cancelled, either wholly or partially as appropriate, by the
    employee upon written notification to the appropriate grievance.
    official (the written notification must be made a part of the
    grievance file). Also, a grievance may be cancelled by the
    appropriate grievance official (i.e., depending upon the stage at
    which the grievance is being reviewed):

    1.  At the employee\'s request or

        Upon termination of the employee\'s employment with the
        Department, unless the personal relief sought by the employee
        can be granted after termination of employment with the
        Department

        Upon the death of the employee, unless the grievance involves a
        question of pay or

        For failure of the employee to furnish required information or

        For failure of the employee to duly proceed with advancement of
        the grievance or

        As indicated in N below.\
        \
        A cancellation decision [by a grievance official]{.underline}
        will cite the relevant section(s) of this Instruction, together
        with the. relevant section(s) of 5 CFR Part 771 as may be
        appropriate, and will provide an explanation of why the cited
        sections are applicable to the rejection.\
        \
        Except in situations covered by M3 above, a cancellation
        decision also will state the right to request reconsideration
        under the provisions of section 771-3-60 and will enclose a copy
        of section 771-3-60 (see pages 15-17).

    [Allegations of Discrimination\
    \
    ]{.underline}Complaints of discrimination are excluded from
    grievance coverage by OPM Regulation 5 CFR 771.206(c)(ii).
    Accordingly a grievance concerning a matter or matters about which
    the employee has filed a formal complaint of discrimination must be
    rejected, either wholly or partially as appropriate. (When an
    employee submits a grievance on more than one matter but files a
    formal discrimination complaint on less than all matters of the
    grievance, only those matters for which discrimination has been
    alleged must be rejected.) [When an employee files a formal
    discrimination complaint about a matter or matters for which a
    grievance has been submitted, the employee must so inform the
    appropriate grievance official; failure to do so shall result in
    cancellation of the grievance in its entirety for failure to provide
    required information]{.underline}. However, a grievance may
    [not]{.underline} be rejected or cancelled because the employee
    seeks precomplaint counseling under Instruction 1613-3, and the
    employee is not obliged to inform the grievance official that
    precomplaint counseling has been sought

    [Preparation of Response to Grievance\
    \
    ]{.underline}The Stage 2 Official in the formal grievance procedure
    must contact the Servicing Personnel Office before-taking action on
    an employee\'s grievance so that the Servicing Personnel Office will
    be informed and can advise and assist the official, if necessary, in
    making a timely and complete response to the grievance. Stage 1
    Officials in the informal grievance procedure should consult with
    the Servicing Personnel Office, if they need advice or assistance in
    responding to an employees grievance.

    [Maintenance of Grievance File\
    ]{.underline}

    1.  A grievance file must be established at the time the first
        decision is issued. As the processing of the grievance
        continues, copies of all relevant material must be added to the
        file. At both stages of the grievance process, the employee has
        the right to submit relevant materials for inclusion in the
        official grievance file.

        When the grievance case has been completed, the file will be
        retained in the Servicing personnel Office. (See HHS
        Instructions 293-1 and 293-2 for maintenance and disposal.)

    [Requests for Procedural Interpretations]{.underline}

    1.  Employees and management officials shall make-their requests for
        interpretations on the procedures in this Instruction to their
        Servicing Personnel Offices (SPO).

        Appropriate officials in a SPO may make requests for
        interpretations on the procedures in this Instruction to the
        Director, Division of program Coordination, Office of Human
        Resource Programs (formerly, Division of Employee Appeals,
        Office of Personnel Systems Integrity), Office of the Assistant
        Secretary for Personnel Administration.

        a.  Any question orally submitted shall not be deemed to be a
            request for official interpretation. -

            A request for an official interpretation shall be in writing
            and addressed to the Director, Division of Program
            Coordination. .

            The Director may decline to answer questions not relating to
            a specific, actual situation or when. insufficient facts are
            presented.

> A request for a procedural interpretation shall not extend any time
> limit in the processing of a grievance under this Instruction unless
> agreed to in writing by the grievant and the appropriate grievance
> official (i.e., Stage 1 or Stage 2 Official as applicable).

(THIS SPACE HAS BEEN DELIBERATELY LEFT BLANK.)

REQUESTING AN EXAMINER

A.  This Exhibit incorporates the information contained in former HHS
    Circular 771-29 of May 31, 1984.

    Effective June 8, 1984, the Department discontinued receiving and
    acting on requests for examiners to conduct inquiries into and
    provide reports of findings and recommendations on formal
    grievances.

    A Formal Grievance Official desiring an examiner may submit a
    requisition (Form HHS-393 or equivalent) to the appropriate
    procurement official of his or her organization (see sub-section
    50.G of Instruction 771-3) to purchase the services of an examiner
    (the names, addresses and telephone numbers of some qualified
    examiners, if desired, can be obtained by contacting the Division of
    Program Coordination, Office of Human Resource Programs, Office of
    the Assistant Secretary for Personnel Administration, on FTS
    475-0104; additional sources are the American Arbitration
    Association and other qualified organizations and individuals.)
    Qualified current HHS employees may serve as examiners
    [provided]{.underline} they have not been involved in the matter
    being grieved [and]{.underline} do not occupy a position subordinate
    to [any official who]{.underline} recommended, advised, influenced,
    or made a decision on\--or otherwise is or was involved or has a
    personal interest in\--the matter being grieved (5 CFR
    771.302\[b\]).

    Heads of Operating Divisions are authorized to establish a more
    centralized or different system of providing examiners for
    grievances within the jurisdiction of their respective Operating
    Divisions.

    In unusual circumstances and upon written request from a Head of
    Operating Division or Regional Director, the Office of the Assistant
    Secretary for Personnel Administration may provide an examiner from
    its staff. The request must be addressed to the Assistant Secretary
    for Personnel Administration and must state the unusual
    circumstances for the request.

DEPARTMENT OF HEALTH& HUMAN SERVICES Office of the Secretary

**Memorandum**

Date November 26, 1985

From Assistant Secretary for

Personnel Administration

Subject Delegation of Authority to Issue Grievance Decisions

Under HHS Personnel Instruction 771-3

To Heads of Operating Divisions

Assistant Secretary for Management and Budget

Director, Office of Child Support Enforcement

Deputy Assistant Secretary for Personnel Administration

Regional Directors, Regions VI, VIII, IX, and X

1.  Under the authority vested in the Assistant Secretary for Personnel
    Administration, by memorandum from the Secretary dated January 24,
    1983, I hereby delegate to Heads of Operating Divisions (OPDIVs),
    including the Assistant Secretary for Management and Budget (ASMB)
    for the Office of the Secretary, and the Director, Office of Child
    Support Enforcement (OCSE), the authority to issue informal and
    formal grievance decisions under HHS Personnel Instruction 771-3 on
    matters within their management control.

    I hereby delegate the authorities cited above to the Regional
    Directors for matters within their management control involving the
    personnel staffs of each-lndian Health Service (IHS) Area that has
    its Area Office in their respective regions. For matters within
    his/her management control involving the personnel staff of the
    National Hansengs Disease Center, I hereby delegate the authorities
    cited above to the Regional Director in Region VI. The authorities
    for these personnel staffs must be redelegate and further
    redelegation authorized. Redelegation is to be from the Regional
    Directors to the Regional Personnel Officers, who are to redelegate
    to the IHS Area Directors and to the Director of the National
    Hansen\'s Disease Center for matters within their management control
    involving their. personnel staffs.

    The Deputy Assistant Secretary for Personnel Administration shall
    exercise, on a Departmentwide basis, authority to:

    a.  Make informal and formal grievance decisions for the Secretary
        on any grievance about a matter initially under the management
        control of the Head of an Operating Division, the ASMB, or the
        Director, OCSE, when the grievance procedures require referral
        to an authority above their organizational level.

        Reconsider for the Secretary any final grievance decisions made
        under HHS Personnel Instruction 771-3, within the Department,
        except those made by the Secretary, Under Secretary, or
        Assistant Secretary for Personnel Administration.

    With regard to the authority to make informal decisions on employee
    grievances, the first official within the Department with authority
    over the matter grieved is authorized . to make a decision on a
    grievance at the informal level of the Departmentes grievance
    procedures (i.e. ,- to be the Stage 1 Official). An administrative
    superior (with authority over the matter grieved) of the Stage 1
    Official may exercise the authority instead of the Stage 1 Official
    if the administrative superior chooses to do so.

    In any particular grievance, the official with the authority to make
    the formal decision (i.e. to be the Stage 2 Official):

    a.  Must not be an official who previously made a decision on the
        adverse action, separation, or reassignment to a Position in a
        different commuting area that is being grieved.

        Must not be an official who issued a decision under the informal
        grievance procedure.

        Must have authority over the matter grieved.

        Must be an official at a higher level than any employee involved
        in any phase of the grievance, except when the Secretary is
        involved (5 CFR 771.302\[f\]).

        An administrative superior (who meets the above requirements) of
        the Stage 2 Official may exercise the authority instead of the
        Stage 2 Official if the administrative superior chooses to do
        so.

    When the head of an OS Staff Division has made an informal decision
    on a grievance (or has made a decision on an adverse action,
    separation, or reassignment to a position in a different commuting
    area under HHS Personnel Instruction 335-1 that is being grieved),
    the ASMB has authority to exercise all of the grievance, personnel,
    and management authorities (except for those retained by the
    Secretary) necessary for making a decision at the next higher level
    of the Departments grievance procedures..

    Requirements and instructions for exercising this authority are
    contained in HHS Personnel Instruction 771-3, 5 CFR Part 771, and
    Chapter 771 of the Federal Personnel Manual.

    This delegation does not pertain to grievance decisions made under
    the grievance procedures of labor-management . agreements (i.e.,
    under negotiated grievance procedures), which are governed by the
    terms, authorities, and conditions of the applicable
    labor-management agreements.

    The authority delegated in paragraph 3a above may not be redelegate;
    the authority in 3b above may be redelegate except for final
    grievance decisions that are reversed, or modified upon
    reconsideration. The authority delegated in paragraph 1 above may be
    redelegate and further redelegation is authorized. All redelegations
    must be in writing in memorandum format and, except for 3b above,
    published as supplements to the HHS Personnel Manual.

    This delegation is effective immediately. It supersedes the ASPER
    delegation memorandum of August 19, 1985, Subject: Delegation of
    Authority to Issue Grievance Decisions Under HHS Personnel
    Instruction 771-3. However, existing redelegations made under that
    memorandum which are consistent with the provisions of this
    delegation will continue in effect until new redelegations are made
    under the authority of this memorandum.

Thomas S. McFee .

HEARING GUIDELINES

When a hearing is held, the examiner will conduct the hearing to conform
with the following guidelines:

1.  Attendance at a hearing is limited to persons determined by the
    examiner to have a direct connection with the grievance, except that
    a labor organization that holds exclusive recognition for the unit
    in which the employee is located shall be given an opportunity to be
    represented.

    The hearing is conducted so as to bring out pertinent facts,
    including the production of pertinent records.

    Rules of evidence are not applied strictly, but the examiner may
    exclude irrelevant or unduly repetitious testimony.

    Decisions on the admissibility of evidence or testimony are made by
    the examiner.

    Testimony is under oath or affirmation. .

    The examiner shall give the parties opportunity to cross-examine
    witnesses who appear and testify.

    The examiner may exclude any person from the hearing for
    contumacious conduct or misbehavior that obstructs the hearing.

    Both parties are entitled to produce witnesses.

    Management shall make its employees available as witnesses before an
    examiner when requested by the examiner after consideration of a
    request by the employee or management.\"

    If management determines that it is not administratively practicable
    to comply with request of the examiner, it shall notify him in
    writing of the reasons for that determination. If, in the examiners
    judgment compliance with his request is essential to a full and fair
    hearing, he may postpone the hearing until such time as management
    complies with his request.

    Employees are in a duty status during the time they are made
    available as witnesses.

    The examiner, on behalf of management, will assure witnesses freedom
    from restraint, interference, coercion, discrimination, or reprisal
    in presenting their testimony.

    A verbatim transcript or written summary of the hearing will be
    prepared, including all pertinent documents submitted to and
    accepted by the examiner. When the hearing is reported verbatim, the
    examiner will make the transcript a part of the record of the
    proceedings. When the hearing is not reported verbatim, a suitable
    summary constitutes the report of the hearing and is made a part of
    the record of the proceedings. If the examiner and the parties fail
    to agree on the summary, the parties are entitled to submit written
    exceptions to any part of the summary and those written exceptions
    and the summary constitute the report of the hearing and are made a
    part of the record of the proceedings.