3 FAM 4450
PRESENTATION OF GRIEVANCES TO THE BOARD
(CT:PER-917; 08-20-2018)
(Office of Origin: HR/G)
3 FAM 4451 FILING OF GRIEVANCE
(CT:PER-651; 09-02-2011)
(Uniform State/USAID/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
A member whose grievance is not resolved satisfactorily
under agency procedures (see 3 FAM 4430)
shall be entitled to file a grievance with the Board no later than 60 days
after receiving the agency decision. In the event that an agency has not
provided its decision within 90 days of presentation, the grievant shall be
entitled to file a grievance with the Board no later than 150 days after the
date of presentation to the agency. The Board may extend or waive for good
cause the time limits stated in this section.
3 FAM 4452 EXHAUSTION OF AGENCY
PROCEDURES
(CT:PER-651; 09-02-2011)
(Uniform State/USAID/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
In the event that the Board finds that a grievance has not
been presented for agency consideration or that a grievance has been expanded
or modified to include materially different elements, the Board may return the
grievance to the official responsible for final agency review unless the agency
waives any objection to Board consideration of the grievance without such
review.
3 FAM 4453 INTERIM RELIEF
(CT:PER-651; 09-02-2011)
(Uniform State/USAID/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
a. If the Board determines that the agency is
considering the involuntary separation of the grievant, disciplinary action
against the grievant, or recovery from the grievant of alleged overpayment of
salary, expenses, or allowances, which is related to a grievance pending before
the Board and that such action should be suspended, the agency shall suspend
such action until the date which is one year after such determination or until
the Board has ruled upon the grievance, whichever comes first. The Board shall
extend the one-year limitation under the preceding sentence and the agency
shall continue to suspend such action, if the Board determines that the agency
or the Board is responsible for the delay in the resolution of the grievance.
The Board may also extend the one year limit if it determines that the delay is
due to the complexity of the case, the unavailability of witnesses or to
circumstances beyond the control of the agency, the Board or the grievant. Notwithstanding
such suspension of action, the head of agency concerned or a chief of mission
or principal officer may exclude the grievant from official premises or from
the performance of specified functions when such exclusion is determined in
writing to be essential to the functioning of the post or office to which the
grievant is assigned. Notwithstanding the first sentence of this paragraph,
the Boards authority to suspend such action shall not extend to instances
where the Secretary, or his designee, has exercised his authority under
subsection (a)(3) of Section 610 of the Act.
b. The Board may expedite its decisions on requested
suspension of agency actions. The Board may permit or require argument for such
requests by the parties and exclusive representative, if any.
3 FAM 4454 ACCESS TO WITNESSES (BOARD
LEVEL)
(CT:PER-651; 09-02-2011)
(Uniform State/USAID/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
The grievant or grievants representative shall be given
access to witnesses employed by the foreign affairs agencies. In the event that
the agency or the grievant determines that the requests for access are
excessive, it may so notify the Board which must rule on the relevancy and
materiality of the potential testimony and may order that access be granted to
any or all of the potential witnesses. It shall be the responsibility of the
grievant to advise the agency of the agency witnesses to be interviewed and to
request administrative leave, as provided in 3 FAM 4424 c.
3 FAM 4455 DECISIONS
(CT:PER-917; 08-20-2018)
(Uniform State/USAID/Commerce/Foreign Service Corps - USDA)
(Applies to Foreign Service Employees Only)
a. Upon completion of its proceedings, the Board shall
expeditiously decide the grievance on the basis of the record of proceedings.
In each case the decision of the Board shall be in writing, and shall include
findings of fact, and a statement of the reasons for the decision of the Board.
b. If the Board finds that the grievance is
meritorious, the Board shall have the authority to direct the agency:
(1) To correct any official personnel record relating
to the grievant which the Board finds to be inaccurate or erroneous, to have an
omission, or to contain information of a falsely prejudicial character;
(2) To reverse a decision denying the grievant
compensation or any other prerequisite of employment authorized by law or
regulation when the Board finds that such denial was arbitrary, capricious, or
contrary to laws or regulations;
(3) To retain in the Service a member whose separation
would be in consequence of the matter by which the member is aggrieved;
(4) To reinstate the grievant, and to grant the
grievant back pay, where it is clearly established that the separation or
suspension without pay of the employee was unjustified or unwarranted under 5
U.S.C. 5596(b)(1);
(5) To pay reasonable attorney fees to the grievant to
the same extent and in the same manner as such fees may be required by the
Merit Systems Protection Board under 5 U.S.C. 7701(g);
(6) To take any corrective action deemed appropriate
by the Board provided it is not contrary to law or collective bargaining
agreement.
c. Except as provided in paragraph d, decisions of the
Board shall be final, subject only to judicial review as provided for in
section 1110 of the Act.
d. If the Board finds that the grievance is meritorious
and that remedial action should be taken that relates directly to promotion,
tenure, or assignment of the grievant or to other remedial action not otherwise
provided for in this section, or if the Board finds that the evidence before it
warrants disciplinary action against any employee of an agency or member of the
Service, it shall make an appropriate recommendation to the head of the agency.
The head of the agency shall make a written decision within 30 days from
receipt of the recommendation. The head of the agency shall implement the
recommendation of the Board except to the extent that, in a decision made
within the 30-day period, the head of the agency rejects the recommendation in
whole or in part on the basis of a determination that implementation of the
recommendation would be contrary to law, or would adversely affect the foreign
policy or national security of the United States.
e. If the head of the agency rejects the recommendation
in whole or in part, the decision shall specify the reasons for such action.
Pending the decision of the head of the agency, there shall be no ex-parte
communications concerning the grievance between the agency head and any person
involved in the grievance proceedings. The head of the agency shall, however,
have access to the entire record of the proceedings of the Board.
f. If the head of agency rejects the recommendation in
whole or part, as contrary to law, the decision shall be submitted to the Board
with a request for reconsideration in whole or in part. Within 30 days
thereafter the Board shall make a recommendation to the head of the agency
either confirming, modifying, or vacating its original recommendation, and this
recommendation by the Board after its review shall be considered a final action
and be implemented by the head of agency.
g. The Board shall apply, with respect to any grievance
base on an alleged violation of a law, rule, regulation, or policy directive
referred to in section 3 FAM 4412, subparagraph c(9), the substantive law that
would be applied by the Equal Employment Opportunity Commission if a charge or
claim alleging discrimination under such law, rule, regulation, or policy
directive had been filed with the Commission.
h. The Board, in reviewing a grievance covered by
section 4412, subparagraph c(8), may not
substitute its judgement on the level or granting of a clearance but must, upon
a finding of improper action, return the case to the agency for reconsideration
in accordance with its findings.
3 FAM 4456 THROUGH 4459 UNASSIGNED