This directive was reviewed and certified as current and necessary by (Enter Name),
(Enter Title) Director, Office of Management, Budget and Evaluation/Chief Financial Officer, XX-XX-XXXX. |
| U. S. Department of Energy |
ORDER
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DOE 3771.1
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Approved:
7-2-81
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| SUBJECT: GRIEVANCE POLICY AND PROCEDURES | |
1. PURPOSE. To provide general policy guidance and instructions and state
responsibilities for establishing and administering the grievance system
of the Department of Energy (DOE). This Order is in accordance with
part 771, title 5, Code of Federal Regulations, which sets forth the
regulations under which each agency shall establish an administrative
grievance system.
2. CANCELLATION. Interim Management Directive 3771, GRIEVANCE POLICY AND
PROCEDURES, of 2-17-78, and DOE N 3771.1, GRIEVANCE PROCEDURE FOR
RESOLVING MERIT PAY COVERAGE DISPUTES, of 10-15-80.
3. COVERAGE AND EXCLUSIONS.
a. Coverage.
(1) This Order covers all employees except those excluded in
paragraphs 3b(1)(a) through (c).
(2) These procedures are intended to cover all matters of employee
concern or dissatisfaction relating to employment that is
subject to the control of management, and for which the
employee seeks personal relief; including matters which the
employee alleges have resulted in coercion, reprisal, or
retaliation, and for which there is no other established
procedure for appeal or complaint, and which is not otherwise
excluded in subparagraph 3b.
(3) Only employees at the 13 through 15 grade level are covered by
Chapter III.
b. Exclusions.
(1) The following individuals are excluded from coverage of this
Order:
(a) Employees excluded by part 771, title 5, Code of Federal
Regulations.
(b) Employees who are members of a bargaining unit represented
by a union which is recognized by the DOE and who are
covered by a negotiated grievance procedure.
(c) Applicants for employment with DOE.
(2) This Order excludes matters excluded by part 771, title 5, Code
of Federal Regulations. Attachment 1 contains a detailed list
of these exclusions.
4. DEFINITIONS.
a. Deciding Official. Except in the case of the Secretary, an official
at a higher organizational level (not necessarily higher grade) than
any other individual directly involved in the matter being grieved
and who has been delegated the authority to make final decisions on
formal grievances. The deciding official is normally the supervisor
or manager immediately above the supervisor to whom the informal
grievance was submitted, unless that individual was directly
involved in the action being grieved. Involvement means more than
mere knowledge of the matter being grieved. To have been
"involved", the deciding official must have made or influenced a
decision regarding the matter being grieved or must have a personal
interest in the matter. In the latter event, the deciding official
shall be the next higher level supervisor in the management chain
who was not directly involved in the action being grieved. Only the
Secretary may be involved in a grievance, be the supervisor with
whom an informal grievance is filed, and be the deciding official.
b. Days. Calendar days.
c. Employees. Includes former DOE employees who meet the time limits
for presenting a grievance and for whom a remedy can be granted. In
Chapter III, this definition means employees who are in grades 13
through 15 only.
d. Factfinding.
(1) An inquiry suitable to ascertain the relevant circumstances
surrounding a grievance and to provide the basis for a written
report which contains appropriate recommendations on the matter
being examined and reasons for the recommendations.
(2) In the event of a merit pay grievance, the report shall contain
information, facts, and supporting documents for the original
determination and the recommended decision shall be limited to
include or exclude the employee's position under the merit pay
system. The inquiry shall include, but not necessarily be
limited to, consideration of:
(a) The point of view of the supervisor, the employee, and a
representative from the servicing personnel office.
(b) Applicable laws, regulations, case decisions, and
Departmental policies.
e. Formal Grievance. A request made in writing by an employee, a
former employee, or 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 DOE management.
f. Grievance File. A separate file which contains all documents
related to the grievance (see Chapter I, paragraph 8).
g. Merit Pay Coverage Determination Grievance. A written request by an
employee that specifically disputes the merit pay coverage
determination of the position occupied by the employee at the time
the determination was originally made and that requests personal
relief.
h. Personal Relief. A specific remedy within the control of management
directly benefiting the grievant. Limited under Chapter III to a
specific request for inclusion or exclusion of the position occupied
by the grievant under the merit pay system. Personal relief may not
include a request for disciplinary or other action affecting another
employee.
5. POLICY.
a. The procedures set forth in this Order shall be administered in a
manner which will ensure the orderly, expeditious, and equitable
handling of grievances.
b. Employees using these procedures or acting as representatives under
these procedures shall not be subject to restraint, interference,
coercion, discrimination, or reprisal by any supervisor or
management official.
6. RESPONSIBILITIES AND AUTHORITIES.
a. Heads of Headquarters Elements and Heads of Field Organizations with
Personnel Authority.
(1) Assure that employees under their jurisdiction are informed of
the provisions of this Order.
(2) Develop necessary procedures for carrying out the policies
contained in this Order.
(3) Designate deciding officials to receive and attempt to adjust
formal grievances, and supervisory officials to render final
decisions on formal grievances referred by the Director of
Personnel.
b. Director of Administration and Human Resource Management. Assures
that the overall grievance system or the DOE is administered in
accordance with the regulations and guidelines of the Office of
Personnel Management.
c. Director of Personnel.
(1) Makes recommendations, comments and suggestions to the
appropriate supervisory official when the deciding official
does not accept the recommendations contained in the report of
factfinding.
(2) Makes the final decision on grievances concerning merit pay
coverage determinations when the grievant is not satisfied with
the initial decision of the servicing personnel officer.
(3) Renders a final decision on the appropriateness of a rejection
or cancellation of a grievance by the deciding official and may
direct that a decision be rendered on the merits of the
grievance.
d. Deciding Officials.
(1) Receive and attempt to adjust formal grievances.
(2) If the formal grievance is not adjusted to the employee's
satisfaction, request the servicing personnel office to obtain
a person(s) to carry out factfinding.
(3) Make decisions regarding the disallowance of a representative
under Chapter II, "Administrative Grievance Procedure."
(4) Issue final decisions on formal grievances when all the
recommendations contained in the report of factfinding are
accepted.
e. Supervisors.
(1) Promptly discuss matters of concern with employees under their
immediate supervision when a grievance is presented informally,
and try to clarify misunderstandings and make reasonable
adjustments to resolve the matter.
(2) Promptly obtain answers from an appropriate source when an
employee under their supervision presents an informal grievance
that is not within the supervisor's authority to resolve.
(3) Review and comment on grievances concerning merit pay coverage
determinations.
(4) Make decisions regarding the disallowance of a representative
under Chapter III, "Grievance Procedure for Resolving Merit Pay
Coverage Disputes."
f. Personnel Officers.
(1) Provide advice to management, individual employees, employee
representatives, and other interested parties as to the
application and details of the grievance procedures.
(2) Provides technical advice on the processing of all formal
grievances and grievances concerning merit pay coverage
determination.
(3) Issue initial decisions on grievances concerning merit pay
coverage determinations.
(4) Maintain necessary records, arrange for factfinding, follow up
at all stages to assure timely processing, and prepare
necessary reports.
William S. Heffelfinger
Assistant Secretary
Management and Administration
TABLE OF CONTENTS
PAGE
CHAPTER I - GENERAL
1. Supplements and Redelegations .................................... I-1
2. Representation ................................................... I-1
3. Communication .................................................... I-2
4. Use of Official Time ............................................. I-2
5. Obligation of the Grievant ....................................... I-2
6. Grievance Followup ............................................... I-2
7. Cancellation of Grievance ........................................ I-2
8. Grievance File ................................................... I-3
CHAPTER II - ADMINISTRATIVE GRIEVANCE PROCEDURE
1. Summary .......................................................... II-1
2. Time Limitations ................................................. II-1
3. Informal Procedure ............................................... II-2
4. Formal Procedure ................................................. II-2
5. Review of Grievance Decisions That Reject or Otherwise Terminate
the Grievance Short of a Final Decision on Its Merits .......... II-7
CHAPTER III - GRIEVANCE PROCEDURE FOR RESOLVING MERIT PAY COVERAGE DISPUTES
1. Summary .......................................................... III-1
2. Time Limitations ................................................. III-1
3. Submission of Grievance .......................................... III-1
4. Acceptance or Rejection of Grievance ............................. III-2
5. Adjustment or Referral for Factfinding ........................... III-2
Review of Grievance File ......................................... III-2
7. Grievance Decision ............................................... III-3
8. Review of Grievance Decisions that Reject or Otherwise Terminate
a Merit Pay Grievance Short of a Final Decision on Its Merits .. III-4
CHAPTER IV - SPECIAL PROVISIONS
1. Grievances Concerning Interpretation of Regulations .............. IV-1
2. Allegations of Unfair Labor Practice ............................. IV-1
3. Allegations of Discrimination in Connection with a Grievance ..... IV-1
4. Combining Formal Grievances ...................................... IV-2
5. Formal Grievance Decision and Report of Findings and
Recommendations ................................................ IV-2
6. Grievance Reopening .............................................. IV-2
Attachment 1 - Nongrievable Matters ......................... 1
CHAPTER I
GENERAL
1. SUPPLEMENTS AND REDELEGATIONS. This Order shall not be supplemented
without prior approval from the Director of Personnel. This does not
apply to redelegating authority.
2. REPRESENTATION.
a. An employee has the right to be accompanied, represented, and
advised by a representative of his or her choice at any stage of the
proceeding except that this right does not accord the grievant or
the representative the right to appear personally before the
Director of Personnel. The designation of a representative must be
in writing and provided to the supervisor or deciding official. If
the grievant chooses another employee of the DOE as a representative
and that person is willing to serve, the representative's
supervisor, acting independently or in concert with the grievant's
supervisor, may disallow the employee's choice of a representative
in a grievance on the basis of:
(1) Priority needs of the DOE mission. For instance, it is not
intended that any one employee serve as a representative when
doing so repeatedly would interfere with the priority needs of
the DOE mission. Should this condition arise, the employee
concerned will be advised by the supervisor to curtail
representation activities.
(2) Unreasonable cost to the DOE.
(3) Conflict of interest or conflict of position.
b. The grievant may challenge a decision to disallow the choice of
representative to the deciding official and obtain a decision before
proceeding with the grievance. If the grievance is presented under
the procedures in Chapter II, the challenge will be submitted to the
servicing personnel officer who will forward the challenge to the
representative's supervisor at the next higher level in the
management chain who was not involved in the original decision to
disallow the representative. The deciding official or supervisor
will make a decision regarding the disallowance of a representative
no later than 10 days after receipt of the challenge.
c. The DOE will not designate a representative for a grievant, nor will
the DOE require any employee or individual to serve as a
representative of another. If a grievant requests assistance in
obtaining representation, the servicing personnel office will make
available to the grievant information concerning sources of
assistance. All arrangements for a representative must be made by
the grievant.
d. In the event the grievant wishes to change representatives, the
procedures described in subparagraphs 2a through 2c apply.
3. COMMUNICATION. An employee has a right to communicate with the
servicing personnel office or any DOE counselor at any stage of the
grievance procedure.
4. USE OF OFFICIAL TIME.
a. An employee and the employee's representative (if employed by the
DOE) are entitled to a reasonable amount of official time to present
a grievance; they are not entitled to official time to prepare the
grievance except to the extent necessary to obtain information and
interview witnesses not otherwise available during nonwork hours.
Employees must obtain approval from their supervisors prior to the
use of official time. "Presenting" includes discussions with
supervisors and attendance at any hearing, inquiry, or meeting in
the formal stage.
b. When the deciding official hearing the formal grievance deems it
necessary to the presentation of the grievance, the employee and the
representative (if employed by the DOE) shall be permitted official
travel, and travel time shall not be charged to leave. In no case
will the employee or the representative be granted official time or
be reimbursed for expenses associated with the investigation or
presentation of a grievance, except as provided in subparagraphs 4a
and b.
5. OBLIGATION OF THE EMPLOYEE. An employee, in exercising the entitlement
to present a grievance under this Order, shall:
a. Comply with appropriate time limits established in this Order;
b. Furnish sufficient detail to clearly identify the matter being
grieved; and
c. Specify the personal relief being requested.
6. GRIEVANCE FOLLOWUP
a. Servicing personnel offices and supervisors shall followup on
grievances to assure that the relief granted the employee and any
recommendations contained in the report of findings and
recommendations accepted by the deciding official have been
implemented.
b. In all cases where a decision is favorable to an employee, the
specific action to be taken shall be set forth in the written
decision. The action directed shall be taken promptly, with
followup in accordance with the above paragraph.
7. CANCELLATION OF GRIEVANCE. A grievance shall be canceled:
a. At the employee's written request.
b. Upon termination of the employee's employment with the DOE, unless
the personal relief sought by the employee may be granted after
termination of employment. When an employee is reassigned from one
DOE organization to another DOE organization and the personal relief
sought by the employee may be granted after reassignment, the
grievance will continue to be processed in the same manner as though
the employee had remained on the rolls of the organization from
which reassigned. Any expenses required for official travel for the
grievant and the grievant's representative will be paid by the
grievant's former organization.
c. Due to lack of timely action by an employee. Management has a
responsibility to exercise due diligence in assuring that the
employee understands that unless the employee furnishes the required
information and duly proceeds with advancement of the grievance, the
grievance will be cancelled, and the employee will be so notified in
writing.
d. Upon death of an employee unless the grievance involves the question
of pay.
8. GRIEVANCE FILE.
a. A grievance file shall be established and maintained by the
servicing personnel office for each grievance that becomes formal
and for each grievance filed under Chapter III. The following
items, as applicable, shall be included in the grievance file:
(1) The written formal grievance;
(2) A written summary of action and results during the informal
procedure;
(3) Copies of the advance notice, replies, and the final decision
notice where a suspension of 14 days or less is involved;
(4) Copies of letters of reprimand or warning where such matters
are at issue;
(5) Copies of personnel action documents associated with the
grievance;
(6) Any statements of witnesses and statements made by the parties
to the grievance;
(7) The final grievance decision;
(8) All other documents pertinent to the case.
b. Grievance records will be maintained in individual grievance
folders. Access to these records will be on a need-to-know basis
and in accordance with the provision of Federal Personnel Manual
Chapter 294, as supplemented. Information which cannot be disclosed
to grievants or their representatives cannot be included in the
files. Information which has been gained through factfinding
procedures which cannot be disclosed cannot be used in adjudicating
grievances.
c. Grievance files will be disposed of in accordance with DOE 1324.2,
RECORDS DISPOSITION.
CHAPTER II
ADMINISTRATIVE GRIEVANCE PROCEDURE
1. SUMMARY. The employee initiates an informal grievance by first
discussing the matter with the immediate supervisor. If the matter is
not resolved in the informal stage, the employee may submit a formal
grievance to the servicing personnel office which will either accept,
reject, or return the grievance on behalf of the deciding official. If
the grievance is accepted, it will be forwarded to the deciding
official. If personal relief is not granted, the deciding official will
initiate factfinding procedures. The deciding official will then either
accept the recommendations of the factfinder or determine that the
recommendations of the factfinder are unacceptable and forward the case
to the servicing personnel office to be submitted to the Director of
Personnel. The deciding official may also reconsider at this point and
decide to grant the personal relief originally requested, so long as it
is consistent with policy, regulations, or other administrative or
statutory requirement. The Director of Personnel will make
recommendations, comments, or suggestions to the appropriate higher
level supervisor who will make the final decision concerning the
grievance and forward the decision to the grievant and a copy to the
appropriate servicing personnel office. The procedures contained herein
are applicable only to current employees. Former employees, who meet
the time limits, shall submit a grievance directly to the Director of
Personnel who will, upon receipt of the grievance, decide appropriate
processing.
2. TIME LIMITATIONS. An employee may present a grievance concerning a
continuing practice or condition at any time. A grievance concerning a
particular act or occurrence must be presented within 15 days of the
date of that act or occurrence ar within 15 days of the date the
employee became aware of the act or occurrence. The following is a
schedule designed to permit reasonable time limits for the processing of
a grievance.
a. Completion of the Informal Procedure--within 21 days from the date
the grievance is first brought to the attention of the immediate
supervisor.
b. Filing of the Formal Grievance--within 7 days of completion of the
informal procedure, or not later than 28 days after initiation of
the informal procedure if no reply has been received in the informal
procedure.
c. Adjustment or Referral of Formal Grievance to Servicing Personnel
Office for Assignment of Factfinder--7 days.
d. Completion of Factfinding Procedures and Submission of the Report of
Findings and Recommendations--45 days.
e. Issuance of the Decision by Deciding Official After Receipt of
Report of Findings and Recommendations--7 days.
f. Issuance of Decision by Appropriate Higher Level Official Deciding
Official Does Not Accept Report of Findings and Recommendations--
15 days after receipt.
3. INFORMAL GRIEVANCE PROCEDURE. An employee shall complete the informal
procedure before the Department may accept a grievance under the formal
procedure, except as noted under subparagraphs 3e and f. The following
informal procedure is required:
a. A grievance shall first be discussed with an employee's immediate
supervisor. The employee shall specify that an informal grievance
is being presented.
b. When the grievance involves a decision or matter under the
cognizance of an official outside the employee's normal supervisory
line, or not within the immediate supervisor's authority, the
informal procedure will be administered by the employee's immediate
supervisor who will confer with the appropriate official before
providing the employee a response to the grievance.
c. The supervisor to whom a grievance has been presented for informal
adjustment will attempt to resolve it as expeditiously as possible,
seeking the advice and assistance of others where necessary and will
give the employee a written decision on the matter not later than 21
days after the date it was received. If the adjustment sought is
not granted, the employee will be informed in writing of the reason
and the right to request consideration under the formal procedure.
d. The immediate supervisor may not refuse to consider a grievance in
the informal stage for any reason. If the grievance is not timely
or consists of matters not covered under the grievance system, the
employee shall be so advised, but the employee must be allowed to
invoke under the informal procedure if desired, that is, the
employee must be allowed to set forth his or her concern or
dissatisfaction to the immediate supervisor who must listen and
respond within the context of the grievance procedure.
e. Within 7 days of receipt of a letter of decision on a suspension of
14 calendar days or less or a letter of reprimand, an employee may
present a grievance directly under the formal procedure without
using the informal procedure. The appropriate time limitation in
paragraph 2 applies.
f. Within 7 days of receipt of a written notification, an employee
designated as a key employee may present a grievance directly under
the formal procedure without using the informal procedure. The
appropriate time limitation in paragraph 2 applies.
4. FORMAL PROCEDURE.
a. Submission of Grievance.
(1) When an employee receives a decision under the informal
procedure, or when the time limit for management to respond had
expired without a decision, the employee may, within 7 days
thereafter, submit the grievance to his or her servicing
personnel office for formal consideration.
(2) The servicing personnel office will forward grievances it
accepts to the appropriate deciding official with delegated
authority to decide grievances. The grievance shall be in
writing, signed and dated by the employee, and contain
sufficient data to identify and clarify the basis of the
grievance. It must also explain the efforts made to resolve
the grievance informally, and specify the relief sought by the
employee. If the employee has a representative, the
representative's name, address, and phone number must also be
included.
b. Acceptance or Rejection of a Grievance. Promptly on receipt of a
grievance filed under the formal procedure, the servicing personnel
office will request the supervisor to submit a written summary of
the matter grieved and the action taken or the results under the
informal procedure and, acting for the appropriate deciding
official, shall take one of the following actions:
(1) Reject the grievance if it was not filed within the time limits
specified for filing under the informal or formal procedures;
consists wholly of a matter or matters excluded from coverage
of the grievance system; or if there is no personal relief to
grant the employee. The notice of rejection shall be in
writing, give reasons for the rejection, and inform the
grievant of the right to request the Director of Personnel to
review the decision to reject the grievance (see paragraph 5).
Where it is determined that a grievance is untimely, the formal
grievance should not be accepted unless the employee furnishes,
and the deciding official approves, a written explanation
showing that the delay was caused by uncontrollable
circumstances.
(2) If the employee has not completed the informal procedure, or
the grievance consists of issues or relief not raised under the
informal procedure, return the grievance to the employee and
explain the requirement that the informal procedure must be
used before a decision can be made to accept or reject the
grievance.
(3) If the issues in the grievance and the relief sought are not
clearly described, the grievant shall be given the opportunity
to provide additional information or clarification within a
specified time limit. Vague or general allegations which do
not detail the matter about which the employee is dissatisfied
or the relief sought cannot be properly addressed or
investigated and shall not be accepted for processing. If
necessary, the servicing personnel office will assist the
employee in identifying and clarifying the basis for the
grievance (issues) and the personal relief sought.
(4) Accept the grievance and forward it and the grievance file to
the appropriate deciding official.
c. Adjustment or Referral for Factfinding.
(1) The deciding official shall give the grievance fair and
impartial consideration. If only a negative decision is
indicated by available information, the deciding official shall
initiate factfinding procedures. Factfinding procedures are
initiated by sending a memorandum to the servicing personnel
office, with a copy to the employee, requesting that a
factfinder be selected to inquire into the grievance. The
deciding official shall not request a factfinder by name.
(2) The deciding official may issue a written decision to the
grievant without initiating factfinding procedures if it
appears likely that the decision will be acceptable to the
grievant. The written decision in such case shall, however,
contain notice to the grievant that he or she may respond in
writing within 7 days and request further consideration of the
grievance if the decision is unacceptable. If the grievant
does not request further consideration in a timely written
response, the decision is implemented and the grievance is
closed. If the grievant requests further consideration in a
timely written response, the deciding official shall initiate
factfinding procedures.
(3) At the discretion of the person selected by the servicing
personnel office to inquire into the grievance, factfinding
procedures used may consist of:
(a) Obtaining of documentary evidence;
(b) Personal interviews;
(c) A group meeting;
(d) A hearing; or
(e) Any combination of subparagraphs (a) through (d).
(4) Factfinding procedures shall be carried out by a person 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. Reports of findings and
recommendations established through factfinding shall be
provided to the deciding official within 45 days of the receipt
of the case.
(5) Person(s) selected to carry out factfinding procedures must
meet one of the following standards:
(a) Experience as a grievance examiner, arbitrator,
administrative law judge, or investigator.
(b) Satisfactory completion of a course for grievance
examiners, arbitrators, or investigators.
(c) A good working knowledge of the relationship between
personnel administration and overall management concerns;
the principles, systems, methods, and administrative
machinery for accomplishing the work of the DOE; and a
high degree of ability to:
1 Identify and select appropriate sources of information;
collect, organize, analyze, and evaluate information
and arrive at sound conclusions on the basis of that
information;
2 Analyze situations; make an objective and logical
determination of the pertinent facts; evaluate the
facts; and develop practical recommendations or
decisions on the basis of facts;
3 Recognize the causes of complex problems and apply
mature judgment in assessing the practical implications
of alternative solutions to those problems;
4 Interpret and apply regulations and other complex
written material;
5 Communicate effectively, orally and in writing,
including the ability to prepare clear and concise
written reports; and
6 Deal effectively with individuals and groups, including
the ability to gain the cooperation and confidence of
others.
(6) If the factfinder determines that a hearing is required to
establish the facts pertinent to the grievance, the parties
involved shall identify, in writing, all witnesses they plan to
call and the purpose of their testimony. The factfinder will
give due consideration, when calling witnesses, to the numbers
requested by the parties and the potential for duplication of
evidence given by witnesses in terms of cost and use of
official time. Any witnesses requested by the employee or by
management who are under the jurisdiction of the DOE and whose
testimony, in the judgment of the factfinder, is necessary for
development of the facts will be called. DOE employees
participating in a grievance proceeding as witnesses will be
considered to be in a duty and pay status during such
participation, if otherwise in a duty and pay status. If the
factfinder determines that the presence of witnesses who are
not DOE employees is relevant and in the interest of the
Government, their transportation costs and per diem shall be
paid in accordance with existing travel regulations. Such
witnesses may not be compelled to appear to testify. Each
witness will be advised that full and complete testimony is
expected and that the witness will not be subject to any
restraint, coercion, discrimination, or reprisal as a result of
such testimony.
(7) Normally, if a hearing is held, a written summary will suffice.
A hearing transcript will be made only when both parties
request it, or when the factfinder determines that a verbatim
transcript is necessary and so documents the grievance file.
(8) The deciding official will furnish appropriate physical
facilities, clerical support (including preparation of
summaries of hearing transcripts), and other requirements for
factfinding procedures.
(9) Upon completion of the inquiry, the factfinder will assure that
a designated member of the servicing personnel office, the
employee, and the employee's designated representative, if any,
have had an opportunity to review and comment on all documents
in the grievance file. Any comments submitted must be included
in the grievance file.
(10) The factfinder will submit the original copy of the grievance
file with a report of findings and recommendations to the
deciding official with a copy to the servicing personnel
office.
d. Grievance Decision.
(1) Upon receipt of the report of findings and recommendations, the
deciding official must assure that the employee's point of view
has received fair consideration. It is essential that all
decisions at any level be based upon facts; be fully responsive
to the employee's allegations, questions, or expressions of
dissatisfaction; and, where the recommendation is adverse to
the employee, contain a detailed explanation.
(2) Within 7 days of receipt of the report of findings and
recommendations, the deciding official will either:
(a) Accept the recommendations contained in the report, and so
notify the employee of the decision with a copy to the
servicing personnel office. This written decision will be
final and contain findings on all issues covered by the
factfinding process. The employee may not request a
further review of the same grievance within the DOE.
(b) Make a final decision to grant the personal relief sought
by the employee, without regard to the recommendations
contained in the report, provided such relief is
consistent with policy, regulation, or other
administrative or statutory requirements.
(c) Determine that all or some of the recommendations
contained in the report are unacceptable. In this case,
the complete grievance file will be transmitted, through
the Director of Employee-Labor Relations & Program
Evaluation Division (AD-54), to the Director of Personnel
(AD-50) with a specific statement of the basis for finding
all or some of the recommendations unacceptable. A copy
of the statement will, at the time of transmittal to the
Director of Personnel, be furnished to the employee and
the employee's representative, if any.
(3) Within 7 days of receipt, the Director of Personnel will review
the grievance file and the deciding official's determination of
unacceptability and will forward the complete file together
with appropriate comments, suggestions, and recommendations
concerning the reasons certain recommendations were determined
unacceptable, to the next higher level supervisor in the
management chain who has not been involved in the grievance.
(4) The final decision of the next higher level supervisor in the
management chain, as referenced in paragraph 4d(3), shall be
rendered to the employee within 15 days after the receipt of
the grievance file and a copy furnished concurrently to the
servicing personnel office. This final decision will be in
writing, contain findings on all issues covered by the
factfinding procedures, and direct what relief, if any, is to
be provided. The employee may not obtain a further review of
the same grievance within the DOE.
5. REVIEW OF GRIEVANCE DECISIONS THAT REJECT OR TERMINATE THE GRIEVANCE
SHORT OF A FINAL DECISION ON ITS MERITS.
a. An employee may request review of any decision on a formal grievance
when the decision rejects, cancels for failure to prosecute, or
otherwise terminates the grievance without a final decision on its
merits.
b. The request for review shall be in writing explaining fully and
clearly the basis for disagreeing with the contested decision, and
shall be submitted to the servicing personnel office within 15 days
after the date of receipt of the decision. The servicing personnel
office will transmit the request for review, a copy of the decision
that rejected, canceled, or terminated the grievance, and the
complete grievance file, through the Director of Employee-Labor
Relations and Program Evaluation Division, to the Director of
Personnel. The grievance file should be established in accordance
with Chapter I, paragraph 8, of this Order.
c. The Director of Personnel will render a decision on the
appropriateness of the decision to reject, cancel for failure to
prosecute, or otherwise terminate a grievance without a final
decision and may direct that a decision be rendered on the merits of
the grievance.
d. Should the Director of Personnel sustain the decision to reject or
terminate the grievance, the employee may not obtain a further
review of the same matter within the DOE.
CHAPTER III
GRIEVANCE PROCEDURE FOR RESOLVING MERIT PAY COVERAGE DISPUTES
1. SUMMARY. The employee initiates the grievance by submitting a written
statement to the servicing personnel officer through his or her
immediate supervisor. If the grievance is accepted and the personal
relief is not granted, the servicing personnel officer shall initiate
factfinding, and issue the employee an initial written decision. If the
grievance is not resolved, the employee may request, through the
servicing personnel officer, a final decision by the Director of
Personnel.
2. TIME LIMITATIONS. The following is a schedule designed to provide
reasonable time limitations for processing a merit pay coverage
determination grievance. Every effort should be made to comply with
this schedule:
a. Employee's Presentation of the Grievance. Within 15 days of receipt
of the written notification of the merit pay coverage determination.
b. Designation by the Personnel Officer of A Person(s) to Conduct
Factfinding. Seven days after receipt of the grievance.
c. Completion of Factfinding and Submission of the Report of Findings
and Recommendations to the Servicing Personnel Officer. Twenty-one
days after receipt of the grievance from the servicing personnel
officer.
d. Initial Decision Issued to the Employee by the Servicing Personnel
Officer. Seven days after receipt of Report of Findings and
Recommendations.
e. Employee's Request for Final Decision by the Director of Personnel.
Seven days after receipt of the initial decision.
f. Issuance of Final Decision by the Director of Personnel. Fourteen
days after receipt of the employee's request.
3. SUBMISSION OF GRIEVANCE. An employee may present a written statement
disputing the merit pay coverage determination of the position he or she
occupies within 15 days of receipt of the written determination, or
within 15 days of a change in the duties of the position occupied. The
change must be of the nature to raise a question concerning the current
merit pay coverage determination of the position. The grievance shall
be signed by the employee and submitted to the employee's servicing
personnel officer through the employee's immediate supervisor. The
supervisor shall append to the grievance any appropriate comments, such
as whether he or she agrees or disagrees with the employee's
representations concerning the applicability of merit pay coverage to
the position in question. The written statement must contain sufficient
data to identify and clarify the basis of the grievance and specify the
personal relief sought by the employee. If the employee wishes to
designate a representative, the representative's name, address, and
phone number must also be included.
4. ACCEPTANCE OR REJECTION OF A GRIEVANCE. Within 6 days of receipt of a
grievance, the servicing personnel officer must take one of the
following actions:
a. Reject the grievance if it was not filed within the time limitations
specified for filing under this chapter or consists wholly of
matters unrelated to the question of merit pay coverage of the
position occupied by the grievant. (Matters unrelated to merit pay
may be appropriate for consideration under another chapter of this
Order.) The notice of rejection shall be in writing, give reasons
for the rejection, and inform the employee of the right to request
the Director of Personnel to review the decision to reject the
grievance. When it is determined that a grievance is untimely, the
grievance should not be accepted unless the employee furnishes, and
the servicing personnel officer approves, a written explanation
showing that the delay was caused by uncontrollable circumstances.
b. If the issues in the grievance and the personal relief sought are
not clearly described, the employee should be given the opportunity
to provide additional information or clarification within a
specified time limit. If necessary, the servicing personnel office
will assist the employee in identifying and clarifying the basis for
the grievance and the personal relief sought.
c. Process the grievance under the appropriate chapter if it falls
within the coverage of this Order.
d. Accept the grievance and so notify the employee.
5. ADJUSTMENT OR REFERRAL FOR FACTFINDING. The servicing personnel officer
shall give the grievance fair and impartial consideration. If the
grievance is not adjusted to the employee's satisfaction, the servicing
personnel officer shall designate a person(s) with personnel management
knowledge and experience, including supervisors and managers, to conduct
factfinding and to provide a report of findings and recommendations.
The factfinding procedures used shall be at the discretion of the
factfinder. Normally, a hearing will not be required since the
information needed to make decisions regarding merit pay coverage is
usually a matter of record. The person(s) carrying out the factfinding
procedures shall not have been involved in the original merit pay
coverage determination and shall not occupy a position subordinate to
any official who recommended, advised, made a decision on, or who
otherwise was involved in the original determination.
6. REVIEW OF GRIEVANCE FILE.
a. Upon completion of the factfinding procedures, the factfinder will
ensure that the employee and his or her designated representative,
if applicable, has had an opportunity to review and comment on all
documents in the grievance file before the file is submitted to the
servicing personnel office with the factfinder's report. Any
comments submitted by the employee must be included in the grievance
file.
b. The factfinder will submit the original copy of the grievance file
with a signed copy of the report of findings and recommendations to
the servicing personnel officer and furnish a copy to both the
immediate supervisor and the employee.
7. GRIEVANCE DECISION.
a. Initial Decision. Within 7 days of receipt of the factfinder's
report, the servicing personnel officer shall issue a written
initial decision, to include reasons for the decision, to the
employee through the employee's immediate supervisor. The employee
will be advised that the initial decision will become the final
decision of the Department within 7 days from the date the employee
receives the initial decision. If the employee is not satisfied
with the resolution contained in the initial decision, the employee
may request that a final decision be made by the Director of
Personnel.
b. Final Decision.
(1) Within 7 days of receipt of the initial decision, the employee
may request a final decision by the Director of Personnel. The
request shall be submitted through the employee's immediate
supervisor and the servicing personnel officer and contain a
brief summary of the reasons the initial decision is not
acceptable. These reasons must focus on why the incumbent
believes the position he or she occupies is or is not properly
included or excluded under merit pay coverage.
(2) Upon receipt of the employee's request, the servicing personnel
officer shall forward the grievance file, including the
factfinder's report, the employee's request and any further
comments of the servicing personnel officer to the Director of
Personnel.
(3) After receipt of the employee's grievance, the Director of
Personnel shall within 14 days either:
(a) Accept the initial decision of the servicing personnel
officer and so notify the employee in writing of the
decision and the reasons therefor. A copy of the decision
of the Director of Personnel will be forwarded to the
servicing personnel officer and the employee's immediate
supervisor.
(b) Determine that the servicing personnel officer's decision
was not correct. The employee will be notified in writing
of the decision and the reasons therefor. A copy of the
decision of the Director of Personnel will be forwarded to
the servicing personnel officer and the employee's
immediate supervisor.
(4) The decision of the Director of Personnel shall be the final
decision of the Department of Energy and the employee may not
obtain further review of the same grievance within the
Department of Energy.
8. REVIEW OF GRIEVANCE DECISIONS THAT REJECT OR OTHERWISE TERMINATE A MERIT
PAY GRIEVANCE SHORT OF A FINAL DECISION ON ITS MERITS.
a. An employee may request review of a decision that rejects, cancels
for failure to prosecute, or otherwise terminates the grievance
without a final decision on its merits.
b. The request for review shall be in writing, explaining fully and
clearly the basis for disagreeing with the contested decision, and
shall be submitted to the servicing personnel officer within 15 days
after the date of receipt of the decision. The servicing personnel
officer will forward to the Director of Personnel the request for
review, the grievance file, and a statement of the reasons for
rejecting, canceling, or otherwise terminating the grievance.
c. The Director of Personnel will render a decision on the
appropriateness of the decision to reject, cancel for failure to
prosecute, or otherwise terminate a grievance without a final
decision.
d. Should the Director of Personnel sustain the decision to reject or
terminate the grievance, the employee may not obtain a further
review of the same matter within the Department of Energy.
CHAPTER IV
SPECIAL PROVISIONS
1. PROCEDURES FUR RESOLVING GRIEVANCES CONCERNING THE INTERPRETATION OF
REGULATIONS. In order to assist in the early resolution of grievances
where the sole issue or one of the issues is the interpretation of
regulations or policies, the following procedure will be used for
seeking an official interpretation.
a. The supervisor, upon receipt of a grievance and upon reaching an
agreement with the grievant that the sole issue, or one of the
issues, is the interpretation of a regulation or policy and that
some form of personal relief is involved, will refer the grievance
to the servicing personnel office which will request an official
interpretation from the office of primary interest. The request
will be made in writing and include a record of facts bearing on the
case, including citation of the regulation(s) or policy(ies)
involved, a copy of the employee's grievance, and any other
supporting material that constitutes the grievance file at that
time.
b. The employee and the employee's representative, if any, will be
given the opportunity to review this material and to submit written
comments as part of the record.
c. Upon receipt of the official interpretation, the servicing personnel
office will notify the employee and the supervisor in writing of
such final interpretation.
2. ALLEGATIONS OF UNFAIR LABOR PRACTICE. An allegation of an unfair labor
practice made in connection with, and directly related to, a grievance
covered by this Order must be incorporated into the grievance and
processed in accordance with this Order. The decision on the grievance
may not be construed as an unfair labor practice decision under section
7116 of title 5, United States Code. If an allegation of an unfair
labor practice made in connection with, and directly related to, a
grievance under this Order has already been filed with the Federal Labor
Relations Authority, the portion of the grievance related to the unfair
labor practice may not be processed under these procedures.
3. ALLEGATIONS OF DISCRIMINATION IN CONNECTION WITH A GRIEVANCE. The
servicing personnel officer shall assure that the same issue is not
processed under both the DOE equal employment opportunity complaint
system and the grievance procedures. If an allegation of discrimination
related to the grievance is raised at any stage in the grievance
procedure, processing of the grievance under this Order shall be
discontinued and the employee will be referred to the equal employment
opportunity counselor for advice on processing the complaint under the
DOE equal employment opportunity complaint system.
4. COMBINING FORMAL GRIEVANCES. When several employees within the same
office have identical grievances (the dissatisfaction expressed and
relief requested are the same), the grievance shall be joined and
processed as one grievance. Such a grievance will be processed as a
single grievance in the name of one employee designated by the others to
act for them. All employees joining in the grievance must be identified
and sign the grievance. An employee may withdraw from a group grievance
at any time but may not, then, resubmit the grievance. Any withdrawal
must be submitted in writing to the servicing personnel office. A
decision rendered in a group grievance applies to all employees in the
group, and each is provided a copy of the decision.
5. FORMAL GRIEVANCE DECISION AND REPORT OF FINDINGS AND RECOMMENDATIONS. A
copy of each formal grievance final decision and the report of findings
and recommendations, if applicable, shall be forwarded to the
Employee-Labor Relations Policy Branch, Employee-Labor Relations and
Program Evaluation Division.
6. GRIEVANCE REOPENING. The Director of Personnel may recommend, in
writing, to a deciding official that a grievance be reopened and
reconsidered at any time, notwithstanding any other provision of this
Order.
NONGRIEVABLE MATTERS
1. The content of published DOE regulations and policy.
2. A decision which is appeal able to the Merit Systems Protection Board.
3. A decision subject to final administrative review by the Office of
Personnel Management under applicable laws or regulations.
4. A decision subject to final administrative review by the Equal
Employment Opportunity Commission under applicable laws or regulations.
5. Matters administered by the General Accounting Office and the Office of
Workers Compensation Programs.
6. Grievances with issues included in a complaint filed with the Office of
Special Counsel, MSPB, will not be processed until the allegation filed
with the Special Counsel is resolved. This avoids dual consideration.
Pursuant to title 5, Code of Federal Regulations, section 1251.2, the
Office of Special Counsel shall make no investigation if it determines
that the method may be resolved more appropriately under an
administrative appeals procedure, including a pending grievance under a
formal agency grievance proceeding.
7. Nonselection for promotion from a group of properly ranked and certified
candidates.
8. A preliminary warning notice or an action which if effected would be
covered under the grievance system or excluded from coverage by
paragraph 2.
9. A return of an officer or employee from the Senior Executive Service to
the General Schedule during the 1-year period of probation or for less
than fully successful executive performance under section 3592 of title
5, United States Code.
10. An action which terminates a temporary promotion within a maximum period
of 2 years and returns the employee to the position from which the
employee was temporarily promoted.
11. 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, title 5, Code of Federal Regulations.
12. An action which terminates a term promotion at the completion of a
specified period, in excess of 2 years but not more than 5 years, and
returns the employee to the position from which promoted or to a
different position of equivalent grade and pay in accordance with part
335, title 5, Code of Federal Regulations.
13. The granting of, or failure to grant, an employee performance award or
the adopting of, or failure to adopt, an employee suggestion or
invention under sections 4503-4505 of title 5, United States Code; 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.
14. 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.
15. 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 title 5, Code
of Federal Regulations.
16. The termination under subpart H of part 315, title 5, Code of Federal
Regulations of a probationer for unsatisfactory performance.
17. A performance evaluation under subchapter II of chapter 43 of title 5,
United States Code (performance appraisal of the Senior Executive
Service).
18. 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, title 5, Code
of Federal Regulations.
19. A separation action not excluded by this Attachment.
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