[Federal Register Volume 65, Number 86 (Wednesday, May 3, 2000)]
[Rules and Regulations]
[Pages 25623-25624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10959]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
amending 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 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 amendment also 
clarifies 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 Board review of 
a final decision on a grievance.

EFFECTIVE DATE: May 3, 2000.

FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board, 
(202) 653-7200.

SUPPLEMENTARY INFORMATION: On November 1, 1999, the Board published a 
proposal to amend its rules of practice and procedure at 5 CFR 
1201.21(d), regarding 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

[[Page 25624]]

a right to file a grievance under a grievance procedure, and 5 CFR 
1201.154(d), regarding the procedures for seeking Board review of a 
final decision on a grievance (64 FR 58798). The proposed rule 
requested public comments and allowed 60 days, until January 3, 2000, 
for receipt of comments.
    Comments were received from the Special Counsel, a Federal agency, 
a labor organization representing Postal Service employees, and a 
private practitioner who represents appellants before MSPB. The Special 
Counsel, the labor organization, and the practitioner all supported the 
proposed rule, and the Federal agency had no objection to it.
    Both the Special Counsel and the practitioner suggested that the 
Board further amend the requirements for agency notices at 5 CFR 
1201.21(d). The practitioner suggested that the Board require agencies 
to spell out the options for ``other elections'' to ``make sure that 
each filing option and its preclusive effect is covered in the agency 
notice.'' The Special Counsel suggested that the Board require agencies 
to include notice of the right to file a prohibited personnel practice 
complaint with the Special Counsel and the requirement for making an 
election among a grievance, an appeal to MSPB, and a complaint to the 
Special Counsel.
    Each of these suggestions would expand the proposed amendment to 5 
CFR 1201.21(d) beyond what it was originally meant to do--require 
agencies to spell out the options available between the MSPB appeal 
procedure and any applicable grievance procedure, and the consequences 
of choosing one or the other. The proposed rule was directed at a 
problem with notices identified in Board cases involving Postal Service 
employees. The Board has not identified a pattern of cases where such 
problems occur with any regularity with other agencies or in situations 
other than where an appellant has a right to challenge an agency 
personnel action under both the MSPB appeal procedure and a grievance 
procedure.
    In particular cases, statutory complaint procedures other than the 
MSPB appeal procedure also may be available, depending on the nature of 
the claims raised by the appellant. For example, an appellant who 
claims prohibited discrimination may be able to file a complaint under 
the regulations of the Equal Employment Opportunity Commission. An 
appellant who claims that the agency's action was the result of a 
prohibited personnel practice may be able to file a complaint with the 
Special Counsel. An appellant who claims that the action was the result 
of an unfair labor practice may be able to pursue the matter before the 
Federal Labor Relations Authority.
    Imposing a generally applicable all-inclusive notice requirement 
that would cover all of the possible situations that could occur would 
place a major burden on agencies to somehow anticipate all options for 
all claims that an employee might raise. It would also produce more 
complex notices that could prove extremely confusing to appellants and 
result in filings under one or more statutory procedures that do not 
apply to the appellant's particular case. Therefore, the Board is 
amending 5 CFR 1201.21(d) as proposed, without change.
    The Federal agency asked if the Board could provide specific 
language for agencies to use in their notices. We believe that the 
regulations sufficiently spell out the requirements for agency notices 
and that further advice goes beyond our adjudicatory role.
    The practitioner also suggested that the references to 5 U.S.C. 
7121 and 7702 in 5 CFR 1201.154(d) be expanded to include explanations 
of what the statutes require and how they operate. While it is 
impractical for the Board to spell out in detail the grievance 
procedures set out in 5 U.S.C. 7121, the Board agrees that 5 CFR 
1201.154(d) can be clarified. This subsection is amended in the final 
rule to specify that it applies where an appellant, other than an 
employee of the Postal Service or an employee otherwise excluded from 
the Federal Labor-Management Relations Statute, requests Board review 
of a final decision on a grievance and alleges prohibited 
discrimination before the Board. The amendment also includes a 
clarifying statement that a final decision on a grievance is usually 
the decision of an arbitrator. As to explaining the mixed case 
procedures of 5 U.S.C. 7702, this is accomplished by subpart E of part 
1201, of which section 1201.154 is a part.
    The Board is publishing this rule as a final rule pursuant to 5 
U.S.C. 1204(h).

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

    Accordingly, the Board amends 5 CFR part 1201 as follows:

PART 1201--PRACTICES AND PROCEDURES

    1. The authority citation for part 1201 continues to read as 
follows:

    Authority: 5 U.S.C. 1204 and 7701, 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 
decision on a grievance in accordance with Sec. 1201.154(d).
    3. Amend Sec. 1201.154 by revising the introductory text of 
paragraph (d) to read as follows:


Sec. 1201.154  Time for filing appeal; closing record in cases 
involving grievance decisions.

* * * * *
    (d) This paragraph does not apply to employees of the Postal 
Service or to other employees excluded from the coverage of the federal 
labor-management relations laws at chapter 71 of title 5, United States 
Code. If the appellant has filed a grievance with the agency under a 
negotiated grievance procedure, he may ask the Board to review the 
final decision on the grievance if he alleges before the Board that he 
is the victim of prohibited discrimination. Usually, the final decision 
on a grievance is the decision of an arbitrator. A full description of 
an individual's right to pursue a grievance and to request Board review 
of a final decision on the grievance is found at 5 U.S.C. 7121 and 
7702. The appellant's request for Board review must be filed 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:
* * * * *

    Dated: April 26, 2000.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 00-10959 Filed 5-2-00; 8:45 am]
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