§ 754.101 Scope. (a) Coverage. This part sets forth the procedures to be followed when the Associate Director for Staffing Services or his designee (referred to in this part as the Associate Director). acting under authority of § 5.4 or § 731.302(b) of this chapter, instructs an agency to remove or take other disciplinary action against an employee in the competitive service who was appointed subject to investigation under § 731.301 of this chapter and who has currently served more than 1 year under other than a temporary appointment with a definite time limitation or a limited executive assignment. (b) Definition. In this part, "days" means calendar days and not workdays. [33 FR 12494, Sept. 4, 1968, as amended at 35 FR 3217, Feb. 20, 1970] (a) Employee's answer. An employee may answer the charges either orally in person, or in writing, or both, and furnish affidavits in support of his answer. The time limit for filing an answer is 15 days from the date the employee receives the notice. The Associate Director shall consider any answer that the employee makes in reaching his decision. (b) Agency's answer. In actions proposed under § 5.4 of this chapter, the agency may also answer the notice of proposed adverse action. The time limit for filing an answer is 15 days from the date the agency receives a copy of the notice. The Associate Director shall consider any answer that Subpart A-[Reserved] Subpart B-General § 771.201 Purpose. This part sets forth the regulations under which each agency shall establish an agency administrative grievance system. § 771.202 Definitions. In this part: "Bargaining unit employee" means an employee included in an appropriate exclusive bargaining unit as determined by the Federal Labor Relations Authority for which a labor organization has been granted exclusive recognition. "Employee" includes a former employee of an agency for whom a remedy can be provided. "Grievance", except as provided in § 771.206 of this part, means a request by an employee, or by a group of employees acting as individuals, for personal relief in a matter of concern or dissatisfaction relating to the employment of the employee(s) which is subject to the control of agency management. "Grievance file" means a separate file which contains all documents related to the grievance, including but not limited to any statements of witnesses, records or copies thereof, the report of the hearing when one is held, statements made by the parties to the grievance, and the decision. "Personal relief" means a specific remedy directly benefiting the grievant(s) and may not include a request for disciplinary or other action affecting another employee. § 771.203 Agency coverage. Except as provided in § 771.206(a), this part applies to the executive agencies and military departments as defined by sections 102 and 105 of title 5, United States Code, and to those organizational units of the legislative and judicial branches having positions in the competitive service. § 771.204 Employee coverage. (a) Required coverage. Except as provided in § 771.206(b), this part shall cover all nonbargaining unit employees of the agency. (b) Discretionary coverage. An agency may extend the coverage of this part to bargaining unit employees consistent with the provisions of 5 U.S.C. 7121, or to applicants for employment with the agency. § 771.205 Grievance coverage. Except as provided in § 771.206(c), this part applies to any matter of concern or dissatisfaction relating to the employment of an employee which is subject to the control of agency management, including any matter on which an employee alleges that coercion, reprisal, or retaliation has been practiced against him or her. § 771.206 Exclusions. (a) Agencies excluded. This part does not apply to the Central Intelligence Agency, the Federal Bureau of Investigation, the Defense Intelligence Agency, the National Security Agency, the Nuclear Regulatory Commission, the Tennessee Valley Authority, the Postal Rate Commission, and the U.S. Postal Service. (b) Employees excluded. This part does not apply to: (1) A noncitizen appointed under Civil Service Rule VIII, § 8.3 of this title; (2) An alien appointed under section 1471(5) of title 22, United States Code; (3) An individual paid from funds as defined in section 2105(c) of title 5 or section 4202(5) of title 38, United States Code; (4) A physician, dentist, nurse, or other employee appointed under Chapter 73 of title 38, United States Code; (5) A member of the Foreign Service of the United States covered under the Foreign Service Grievance System as defined in Part J of Title VI of the Foreign Service Act of 1946, as amended; or (6) An employee otherwise included under § 771.204(a) of this subpart when he or she is a member of a class of employees excluded from coverage by the Office on the recommendation of the head of the agency concerned. (c) Matters excluded. (1) This part does not apply to: (i) The content of published agency regulations and policy; (ii) A decision which is appealable to the Merit Systems Protection Board or subject to final administrative review by the Office of Personnel Management or the Equal Employment Opportunity Commission under law or regulations of the Office or the Commission. for promotion (iii) Nonselection from a group of properly ranked and certified candidates; (iv) A preliminary warning notice of an action which, if effected, would be covered under the grievance system or excluded from coverage by paragraph (c)(1)(ii) of this section: (v) A return of an officer or employee from the Senior Executive Service to the General Schedule during the one year period of probation or for less than fully successful executive performance under section 3592 of title 5, United States Code; (vi) An action which terminates a temporary promotion within a maximum period of two years and returns the employees to the position from which the employee was temporarily promoted, or reassigns or demotes the employee to a different position that is not at a lower grade or pay than the position from which the employee was temporarily promoted; (vii) The substance of the critical elements and performance standards of an employee's position which have been established in accordance with the requirements of subchapter I of chapter 43 of title 5, United States Code, and Part 430 of this title; (viii) The granting of or failure to grant an employee performance award or the adoption of or failure to adopt an employee suggestion or invention under sections 4503-4505, or the granting of or failure to grant an award of the rank of meritorious or distinguished executive under section 4507 of title 5, United States Code; (ix) The receipt of or failure to receive a performance award under section 5384 of title 5, United States Code, or a quality salary increase under section 5336 of title 5, United States Code; (x) A merit pay determination or a merit pay increase or the lack of a merit pay increase under the Merit Pay System, or a decision on the granting of or failure to grant cash or honorary recognition under chapter 54 of title 5, United States Code, and Part 540 of this title; (xi) The termination under Subpart H of Part 315 of this title of a probationer for unsatisfactory performance; (xii) A performance evaluation under subchapter II of chapter 43 of title 5, United States Code. (2) This part does not apply to the following actions unless the agency extends the coverage to any aspect of them: (i) A return of an employee from an initial appointment as a supervisor or manager to a nonsupervisory or nonmanagerial position for failure to satisfactorily complete the probationary period under section 3321(a)(2) of title 5, United States Code, and Subpart I of Part 315 of this title; and (ii) A separation action not excluded by paragraph (c)(1) of this section. [44 FR 77131, Dec. 31, 1979; 45 FR 4338, Jan. 22, 1980) Subpart C-Establishment of Agency Administrative Grievance System § 771.301 Establishment and publication. (a) Establishment. Each agency covered by this part shall establish and administer an agency grievance system in accordance with the criteria in § 771.302 of this subpart. (b) Publication. Each agency shall publish and make available to employees copies of its administrative grievance procedures. § 771.302 Criteria. The following criteria shall govern the establishment and administration of an agency administrative grievance system: (a) Prompt consideration of each grievance, including reasonable time limits for processing the grievance. (b) Procedures appropriate for the matter being grieved which provide the employee a reasonable opportunity to present a grievance and receive fair consideration of the matter being grieved. The procedures shall provide for fact-finding, when appropriate, which shall include a hearing when one is suitable to ascertain the circumstances concerning the grievance. Fact-finding procedures shall be carried out by a person(s) who has not been involved in the matter being grieved and who does not occupy a position subordinate to any official who recommended, advised, made a decision on, or who otherwise is or was involved in, the matter being grieved. (c) Assurance to the grievant of: (1) Freedom from restraint, interference, coercion, discrimination or reprisal in presenting a grievance; (2) The right to be accompanied, represented, and advised by a representative of his or her own choosing, except that an agency may disallow the choice of an individual as a representative which would result in a conflict of interest or position, which would conflict with the priority needs of the agency, or which would give rise to unreasonable costs to the Government; (3) A reasonable amount of official time to present the grievance if the employee is otherwise in a duty status; and (4) The right to communicate with the servicing personnel office or a counselor of the agency. (d) Assurance to the employee's representative of: (1) Freedom from restraint, interference, coercion, discrimination or reprisal; and (2) A reasonable amount of official time to present the grievance if the representative is an employee of the agency and is otherwise in a duty status; (e) When fact-finding is utilized, establishment of a grievance file which is made available to the grievant and his or her representative for review and comment; (f) At any time an employee places a grievance in writing, a written decision, which includes a report of findings and reasons for the determination, made by: (1) An official at a higher level than any employee involved in any phase of the grievance, except when the head of the agency has been involved, or (2) The official(s) designated to determine the disputed facts. § 771.303 Obligation of the grievant. An employee in exercising the entitlement to present a grievance under this part shall: (a) Comply with appropriate time limits established by the agency; (b) Furnish sufficient detail to clearly identify the matter being grieved; and (c) Specify the personal relief being requested. § 771.304 Review by the Office of Personnel Management. The Office of Personnel Management shall review from time to time each agency adininistrative grievance system developed under this part to determine whether the administrative grievance system meets the requirements of this part. The Office shall require corrective action to bring a system which fails to meet the requirements into conformity. The Office does not act on a request by an employee to review the processing of, or the decision on, an individual grievance. PART 831-RETIREMENT |