[Federal Register: September 11, 1995 (Volume 60, Number 175)]
[Rules and Regulations]               
[Page 47039-47041]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11se95-1]

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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
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[[Page 47039]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 300, 550, 752, 771, 831 and 842

RIN 3206-AG37

 
Agency Administrative Grievance System

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

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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