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Chapter 1. Discipline and Adverse Actions Order canceled by this chapter: DOJ 1752.1A, Discipline and Adverse Actions, Apr. 27, 1981. (See paragraph 6 of the Foreword.) Changes in Department policy: In this chapter, we: Added the requirement that managers consult their servicing personnel offices before taking a disciplinary action. Clarified that there is no statute of limitations for the taking of personnel actions. Eliminated the requirement that the Bureaus maintain and\or follow a formal table of penalties. Established procedures for dealing with employees while allegations that they have engaged in misconduct are being investigated. Allowed managers to keep a reprimand in an employee's official personnel folder for three (instead of two) years, unless a collective bargaining agreement or bureau policy provides otherwise. Designated the Workforce Relations Group (WRG) as the Department's and bureaus' liaison with the Office of Personnel Management on matters involving adverse actions. Coordinated the establishment of a training\mentoring program for agency representatives in adverse action proceedings at the bureau level. Clarified and revised the procedures for the filing of appeals and petitions for review. Implemented the requirement for an annual adverse action report to WRG. Discussion of comments: A division commented that the chapter is severely limited in the absence of an accompanying procedural manual. We will be supplementing this chapter with how-to guidance in the future. Including procedural provisions in the order, which establishes Departmentwide policy, could increase claims that the Department failed to follow its internal guidelines, and would be inconsistent with the goal of establishing a Human Resources Order that is concise and only states Department policy. Definitions. We have not provided a definition of "oral admonishment," as suggested by two commenters, because these actions are considered to be informal discipline. Four components commented on the definition of "adverse action;" however, there was no consensus on the proper definition. Some argued that suspensions of less than 14 days are "adverse" actions because short suspensions are mentioned in 5 U.S.C. chapter 75. Also mentioned was the inaccurate inclusion of furloughs of 30 days or less as "disciplinary" actions. Some commenters wanted additional definitions included, such as "work unit" and "day." We have adopted the definition of "adverse actions" as those actions covered by 5 U.S.C. chapter 75. Thus, the definition includes suspensions of 14 days or less. "Discipline" encompasses all formal actions taken for disciplinary reasons. We clarified that formal actions are actions that are recorded in the employee's Official Personnel Folder. We have eliminated "furloughs of 30 days or less" from the definition of discipline. "Day," which has been defined in the Dictionary for purposes of this chapter, means calendar day unless otherwise specified. "Work unit" will be defined in future guidance. One commenter questioned where the authority falls for attorney disciplinary matters. The Attorney General has delegated to the Assistant Attorney General for Administration (AAG/A) the responsibility for the Department's Adverse Action Program. This authority encompasses advising components on the procedures they must use in carrying out adverse actions. As a result, the Justice Management Division's (JMD's) Workforce Relations Group (WRG) has increased oversight authority over component Petitions for Review (PFRs). Components are required to submit PFRs to WRG before filing so that WRG has a reasonable opportunity to provide input. The Office of Attorney Personnel Management (OAPM) has the authority to oversee actions taken against attorneys; however, the AAG/A is responsible for the imposition of binding policies and procedures to be used in the exercise of that authority. One component suggested that we require that adverse actions be taken at the lowest practicable level. We have not adopted this as Department policy since it could create an argument on appeal. However, we plan to recommend such a practice in future guidance. An office commented that the reference to the efficiency of the service in the policy statement in paragraph B.1. extended the efficiency standard to reprimands. In response to this comment, we have removed the reference to the efficiency of the service for reprimands because we do not have to show such cause. Rather than include a list of prohibited reasons for taking discipline, we opted to clarify that the list of examples is not all-inclusive. A Bureau suggested that, in the policy statement in paragraph B.1.a., we eliminate the word "reserve" after "veteran." After further consideration, we agree with this suggestion but have moved the provision regarding "veterans status" to paragraph B.1.b. Section 2302 of title 5, United States Code, includes the list of prohibited personnel practices. Although it does not specifically refer to "veterans status," it does state that one may not discriminate on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others. As this is somewhat broad, it can include "veterans status." In addition, chapter 74 of title 38 of the United States Code (codifying the Uniformed Services Employment and Reemployment Right Act of 1994) makes it clear that discriminating against an employee based on his or her military service is improper; claims of discrimination made under this recently-enacted provision are beginning to be raised and are likely to increase in the future. Paragraph B.1.b. thus states that discipline may not be based on discrimination because of "veterans status." In that paragraph, we have also changed sexual "preference" to sexual "orientation" as suggested by a bureau. An office recommended that we include an example at the end of paragraph B.1.c. by adding "e.g., Title VII or other EEO laws." We did not find this necessary since we have said "other laws." Actions covered. An office recommended that one of the actions covered in paragraph B.3.c. ("reductions in grade or pay"), be revised to read "involuntary reductions in grade or pay." We have not adopted this suggestion because the law does not differentiate between "involuntary" and "voluntary." Also, employees have successfully argued to the Board that a "voluntary" reduction is a constructive adverse action. Employees covered. Two commenters suggested that the statement on employees covered in paragraph B.3. be clarified by a reference to law or a list of employees who are excluded. We cannot provide an exhaustive list because of the number of laws, current and pending, that exclude coverage. We have added employees excluded from procedural protections under 5 U.S.C. 7511 as an example of employees excluded. Actions excluded. In paragraph B.4., we clarified that actions excluded by statute and regulation are not covered and we deleted the word "adverse" in paragraph B.4.j., as suggested by a bureau. The bureau also suggested that we add a "reemployed annuitant who is in receipt of the annuity" based on the Federal Circuit decision in Vesser v. OPM, to the list of actions excluded under paragraph B.4. We have not added this because the list of exclusions is not intended to be exhaustive; also, future case law may change the Vesser v. OPM interpretation. Other suggestions from commenters for additions to the list include performance-based actions, and termination of a temporary appointment for a nonpreference eligible and for a preference eligible in the first year of appointment. Since the list is not intended to be exhaustive, we have not made these additions. Responsibilities - AAG/A. A bureau asked for a clarification of the intent of the responsibilities of the AAG/A in paragraph B.5. We have added a new paragraph B.5.a.(3) to confirm that the AAG/A "has the authority to intervene in any third party administrative proceeding where a significant question of law or general personnel administration is raised, or when it is determined that such intervention is in the best interest of the Department." A division commented that the statement in paragraph B.5.(a)(4), on the AAG/A's authority to overturn actions, goes too far and that the language appears to create another level of appeal in which an employee might petition the AAG/A to overturn an action for minor, procedural nonconformance with the policy statement. Another commenter expressed a concern that the authority is not limited to correcting procedural errors and would allow the Justice Management Division to reverse a component on such issues as to whether the action was taken for such cause as will promote the efficiency of the service. We have not altered this language. The policy in this chapter is required by law. The AAG/A has an obligation, as the overseer of the Department's policy in this area, to correct actions that violate the law and may be appealed to third parties. However, there is no provision in Department policy that would allow an employee to appeal directly to the AAG/A. Responsibilities - WRG. One bureau, a division, and three offices expressed concern about the role of the WRG in paragraph B.5.b. The bureau objected to having the WRG submit or approve PFRs because it would cause undue delay and negatively impact a timely filing. The division commented that the WRG should involve the affected component as a full partner in the proceedings. Because the Department's success record at the Merit Systems Protection Board (MSPB) is deficient, the Attorney General has determined that the AAG/A must have the authority to more effectively oversee the efforts of Department components. The AAG/A delegated the staff responsibility for accomplishing this oversight to the WRG. Components will be kept informed and involved in the proceedings as appropriate. Nonetheless, the WRG must have the ability to submit or review component PFRs to accomplish the AG's mandate to JMD. An office raised a concern that the involvement of the WRG was being mandated in attorney cases and requested that the order specify that the office will be represented by another staff instead of the WRG. This chapter does not determine which staff will handle casework for particular components. Also, the AAG/A may call upon WRG to represent the Department and may consult with whomever he or she chooses to seek assurance that cases are handled in the most effective manner and are consistent with the Attorney General's stated wishes. Several components were concerned that the language in paragraph B.5.b.(5) meant that the WRG intends to dictate the proficiency and qualification standards for all Department third-party representatives. WRG plans to involve each component in the formulation of MSPB proficiency standards. However, requiring component approval would be both impractical and unwise for several reasons: 1) for many components, it would be practically impossible to get agreement in a reasonable time frame; 2) the purpose of the standards is to ensure that representatives used by DOJ components meet a minimal standard of training and experience as set by the Department; 3) WRG is the policy-making arm of DOJ in this area and, as such, has been tasked with effecting the Adverse Actions Reinvention Team recommendation; and 4) this requirement is linked to WRG's responsibility to provide training. To clarify the role of the WRG, the language in B.5.b.(5) has been changed to state that the WRG will provide "oversight for the development and administration of proficiency and qualification standards" for third party representatives. An office commented that training and mentoring programs should be limited to employee relations matters, given that the Office of Legal Education (OLE) is responsible for providing training for Department employees on handling third party proceedings. Training and mentoring programs covered by this chapter are restricted to discipline and adverse action matters, which include representation at MSPB and the Federal Labor Relations Authority. Training provided by OLE will augment WRG training on representational skills. We have not adopted the suggestion from an office that the chapter state that the agency representative may take the lead in writing a PFR and may have an active role in discussing the case with OPM. In appropriate cases, an agency representative may take the lead role in writing any PFR, subject to the oversight of the WRG. However, OPM has asked that the Department designate a single contact point for all discussions of appeals, and, in order to ensure that WRG remains knowledgeable regarding Department appeals, it is essential that WRG represent the Department's position to OPM. In addition, the Attorney General has indicated that she wishes DOJ, to the extent possible, to speak with a single voice in all personnel issues. This can only be accomplished by having a single contact point with OPM. Of course, WRG will consult extensively with the component before entering into discussions with OPM. Responsibilities - Bureau Head. We have adopted a suggestion that the responsibilities of bureau heads in paragraph B.5.c. include the responsibility to ensure that their representatives in third party proceedings are trained and qualified. Procedures and requirements for taking adverse actions. A division suggested the heading for paragraph B.6. be "choice of discipline." This has not been adopted because the topic is broader than choice of discipline. Two components suggested that, in paragraph B.6.a. on consultation required in adverse action procedures before taking a disciplinary action, we require consultation with the legal or general counsel office, where appropriate, since, for some components, the servicing personnel office is not the point of contact. We have adopted this suggestion. Several components objected to the elimination of the Table of Penalties and to the requirement that WRG approve any table developed by a bureau. Also, the Office of Attorney Personnel Management (OAPM) requested that components be required to seek OAPM's review of tables that affect attorneys. The table has been eliminated because the Department's components are so diverse that a single meaningful table is a practical impossibility. The purpose of the WRG's review of any new Schedule of Disciplinary Offenses and Penalties is to ensure that it is legal, procedurally correct, and consistent with Departmentwide policy. This is simply a review function; WRG will not dictate what will be contained in such a schedule. It is OAPM's responsibility to make arrangements to review schedules for legality and consistency. (Most agencies have completely eliminated tables of penalties. At one time, they were given great deference and were very useful. At present, such tables are practically ignored by the MSPB and provide little more than an opportunity for procedural error.) Pre-decision inquiries. Several components requested clarification of paragraph B.6.b. on pre-decision inquiries. We have revised the first sentence to clarify that the subject of the paragraph is inquiries. Bureaus may supplement this policy with additional instructions; however, it may be more appropriate to determine procedures for handling inquiries on a case-by-case basis. The second sentence in this paragraph provides managers with the latitude necessary to conduct an inquiry that is appropriate to the case. Timing of discipline. Four components suggested adding an observation regarding timing of discipline in paragraph B.6.c., that while there is no statute of limitations with respect to disciplinary actions, discipline for some offenses can be seriously undermined by delays afer managers learn of an offense. In response to these suggestions, paragraph B.6.c. has been revised to encourage managers to effect discipline in a timely manner. Schedules of disciplinary offenses and penalties. One component suggested adding a definition of "work unit." (See paragraph B.6.d.) Because of the frequently changing case law on this matter, we plan to include a definition in future guidance. We have revised the wording in paragraph B.6.d., regarding penalties selected by managers, so that it will be consistent with the Douglas factors, as suggested by several components. However, we have not adopted a suggestion to include the Douglas factors, because the law in this area is changing rapidly and could be out of date soon after the order is published. We also have not included reference to specific standards of conduct to which employees must adhere. Employee representatives. A component suggested that distinctions among issues regarding employee representatives in paragraph B.6.e., such as the difference between the representational right to present a reply to a proposed adverse action and the right to present a grievance, be discussed. Components with questions should contact the WRG for additional clarification. Regarding payment of travel expenses in paragraph B.6.e.(2), a commenter suggested that components should pay the travel expenses of employees but not those of employee representatives, and that there should be consistency throughout the Department. The policy states that payment of travel expenses for employee representatives is not required unless a collective bargaining agreement has such a provision. The meaning of "employee's official duties" in paragraph B.6.e.(3)(b) was questioned. This refers to the official duties of an employee's representative. Status of employees during investigations and notice periods. We have changed the heading for paragraph B.6.f. in response to a comment that the draft title implied there would be more on indefinite suspensions than is included. An office suggested adding "preceding formal discipline" to paragraph B.6.f.(4) to clarify the timing of the notice period. This is addressed in paragraph B.6.a.. The office also requested an explanation of "standard" notice be added. We will do this via supplemental guidance. A component commented that it is unlikely that anyone can demonstrate a detriment to morale (see paragraph B.6.f.(1)). This language has not been changed, because we believe it is possible to demonstrate a detriment to morale. A bureau commented that an indefinite suspension (see paragraph B.6.f.(3))is not commonly preferred as an option if the inquiry is likely to conclude by the time management has prepared the proposal and provided the required notice, and that the language implies that a detail to unclassified duties is not an option. The use of indefinite suspension is an option; it is not mandated, and may not be a useful tool if management determines that the time needed for an inquiry is brief. Regarding a detail to unclassified duties, while it is preferred that an employee be assigned to an "available position," an assignment to unclassified duties is not prohibited. Another bureau questioned how it can use an indefinite suspension when there is no evidence that a crime has been committed. There is no requirement to show that a crime has been committed in order to place an employee on an indefinite suspension. More information on this topic will be included in supplemental guidance. Components with questions in this area can contact the WRG for additional clarification and discussion on these issues. Concerns regarding the administrative leave time limit of 10 days in paragraph B.6.f.(5) were expressed by several components, and one commented that managers should be asked to account for their decision to place an employee on administrative leave. We share concerns about the possibility of misuse. Most components consider this chapter to be overly restrictive of their ability to impose administrative leave. We believe that anything more restrictive would not be enforceable. We have determined that 10 days is the best way to carry out the goal of eliminating improper administrative leave and to persuade supervisors to consider alternative actions such as indefinite suspensions. The chapter does not limit the discretion of supervisors to impose administrative leave after they have made an informed decision that such leave is necessary. One office commented that paragraph B.6.f.(5) appears to limit management discretion to ensure office safety. There is no intent to limit management discretion. Official reprimands. Several components commented on the provision on proposed reprimands (see paragraph B.6.g.(2)). One suggested the chapter be silent on the subject; another suggested revised language. We have retained the language on the pre-decisional stage for reprimands. Although one component suggested more general language, we believe that it is less confusing to specify what type of procedures are acceptable to the Department, e.g., proposal. We have included this language because some bureaus wish to impose some pre-decisional due process in the reprimand process; however, such procedures are not required. Procedures for suspensions are in law and regulation and are not repeated in the order. Removals, suspensions, reductions in grade or pay, or furloughs for 30 days or less. The paragraphs on suspensions and removals have been consolidated (see paragraph b.6.h.). Third-party administrative proceedings. The heading for paragraph B.7. has been changed from "the Department of Justice Adverse Action Program" to "Third Party Administrative Proceedings," as suggested by a division. Two commenters expressed concern about WRG's role in the third-party process; others commented on problems presented by the notification time frame, such as the suspension of advocacy. Some commented that extensive consultation with the component should be required if WRG assumes responsibility for a case and that WRG should provide feedback to components about case trends and problems. One commenter recommended that WRG increase its role and assume primary authority in MSPB cases. WRG has begun to publish information on case law trends and problems associated with processing cases and will consult extensively with bureaus if WRG assumes responsibility for a case on behalf of the AAG/A. Because of concern about the short time frame for filing a PFR, we have adopted a requirement in paragraph B.7.a. that bureaus notify WRG of an adverse decision from an MSPB Administrative Judge within three (3) days of its receipt. There is no intent to prohibit a bureau from continuing to work on a case while WRG makes a decision regarding its role in the process. After meeting with General Counsels from each of the bureaus, it was determined that the WRG can assume appeal responsibility for a bureau case as authorized by the AAG/A. Most of the General Counsels acknowledged that the language does not unduly impact on their ability to handle cases and understand that the intent is to improve the Department's record in third party appeals. To address these same concerns about timeliness, paragraphs B.7.b.(1) and (3) now require that notification of the WRG of any adverse decision by an MSPB Administrative Judge include a statement as to whether or not an MSPB appeal is anticipated and the rationale for why it may be warranted, and that a copy of any petition for review prepared by a Bureau be provided with supporting documentation to the WRG for review at least five (5) business days prior to the MSPB filing deadline. Similarly, paragraphs B.7.c.(1),(2), and (3) have been revised to require that notification of the WRG of receipt of a petition for review include copies of the petition for review and the initial decision of the Administrative Judge; that a request that the WRG assume responsibility for responding to a petition for review be made when the WRG is notified of receipt of the petition; and that a copy of any response to a petition for review prepared by a Bureau be provided to the WRG, accompanied by appropriate supporting documentation, at least five (5) business days prior to the MSPB filing deadline. Paragraphs B.7.e.(1)(2) and (3) have been revised to clarify the role of OPM in requests for Federal Circuit review and to require that Bureau notification of the WRG of any adverse decision of the MSPB include a copy of the decision and a statement by the Bureau as to whether or not an appeal is requested. Documentation and Reporting. One component requested clarification regarding the statement in paragraph C.1.(a)(5) that reprimands can be used for statistical purposes and can be used to support more serious discipline for later offenses. There are circumstances that permit use of a reprimand to support more serious charges, such as an employee who has a history of "staying clean" just long enough for a reckoning period to expire before committing further misconduct. If there is an unbroken chain in reckoning periods, it is appropriate to go back indefinitely. We have revised the statement on use of copies of removed reprimands in paragraph C.1.a.(5) by adding "in certain circumstances" and have reworded paragraph C.1.a.(2) to state that the retention period begins the day the reprimand is delivered to the employee. In response to a comment, we have clarified that the accomplishments and problems or deficiencies in the annual report (see paragraphs C.2.c. and d.) are to be related to the program area and have added a requirement to report on administrative leave (see paragraph C.2.e.). In paragraph C.2., November 15 has been established as the latest date by which the annual fiscal year report must be submitted to the WRG. Chapter 2. Agency Grievance Procedure Order canceled by this chapter: DOJ 1771.1B, Employee Grievance Procedures, Aug. 30, 1982. (See paragraph 3 of Change 5.) Changes in Department policy:
Discussion of comments: One commenter suggested that formal fact-finding be retained as an option and that the Order state clearly that this process may be used at the discretion of grievance officials. We have not adopted this suggestion because the existing language already allows for the use of fact-finding. The language of paragraph B.8. provides that a grievance official "may consult with the grievant and/or any other individuals who the grievance official believes will be able to aid in resolution of the grievance." This language allows the grievance official a great deal of flexibility to consult with others in order to ascertain the facts which gave rise to the grievance. Under this language, a grievance official could designate an individual to act as a fact-finder, with that person making inquiries on behalf of the grievance official and reporting back his or her findings. Because the existing language is broad enough to allow for this process, it is unnecessary to provide a specific reference to it in the Order. Moreover, because the prior Order contained a formal fact-finding step, which has now been eliminated, inserting language which specifically discusses this process may result in confusion. One office suggested that grievance officials should keep a written record of any consultations (with the grievant or any other individuals) in the grievance file. We agree with this suggestion and have inserted language in paragraph B.8. which addresses this concern. The same office suggested that grievants should have the opportunity to refute any findings of fact made by the grievance official. We have not adopted this suggestion. As noted above, the existing language of paragraph B.8. provides that in conducting his or her review, a grievance official "may consult with the grievant and/or any other individuals who the grievance official believes will be able to aid in resolution of the grievance." This language gives a grievance official the discretion to discuss his or her findings of fact with a grievant and provide him or her an opportunity to refute any such findings. This language would also allow a grievance official to convene a fact-finding meeting at which all witnesses, including the grievant, may present their respective versions of the facts to the grievance official. However, requiring a grievance official to discuss findings of fact with the grievant would not be useful in many instances and would only build an additional step into the process, thereby delaying the resolution of the grievance. For this reason, we have not adopted this suggestion. Several divisions commented on the idea of adding procedural steps for performance appraisal grievances. One division suggested that two procedural steps be added to modify paragraph B.8. Under this approach, the grievance official would be required to solicit a statement from the rating official (to be submitted within 10 days of the request) and a reply from the grievant (with the same 10-day requirement), and the time limit for issuing a decision would be extended. Another division suggested that language be added which would allow the grievance official the option of soliciting such statements, but if statements are requested, the time limit for issuing a decision would be extended. Two other divisions, however, commented that the existing language of paragraph B.8. was adequate to allow the grievance official to solicit input from the rating official and the grievant. Because we concur with the latter approach, we have not altered the language of paragraph B.8. One commenter suggested that paragraph B.3 be modified to expand the scope of the grievance procedure to include matters such as the failure to give a monetary award, the amount of a monetary award, and allegations of discrimination. The commenter believes that expanding the scope of the grievance procedure to include these subjects might reduce the number of EEO complaints. We disagree that expanding the scope of the grievance procedure is likely to have this result and believe that this approach would only result in an increased number of grievances. For this reason, we have not adopted this suggestion. A commenter recommended that paragraph B.6.b. be modified to provide that unless the grievance official is otherwise identified, grievances shall be filed with an employee's second-level supervisor, except where the first or second-level supervisor is a Bureau Head. The rationale for this proposed change is that many grievances directly involve the employee's immediate supervisor and that the process would be more credible if grievances are filed at a higher level. We agree with this suggestion and have modified the language accordingly. One bureau suggested that agencies be allowed to adopt a two-step procedure, or in the alternative, be permitted to define the optional mediation step as an "informal step." While we recognize that bureaus are very different both organizationally and culturally, we believe that a consistent approach to grievances for all Department employees is an overriding principle. Accordingly, we have not adopted this suggestion. Similarly, an office has suggested that bureaus be allowed to "customize" the grievance procedure, provided that the modifications do not conflict with the written procedure. The office suggests that individual bureaus be allowed to determine items such as levels of deciding officials and guidelines for the content of "grievances, responses, and decisions." While we agree that bureaus should have responsibility for tailoring the administration of the grievance procedure to their individual needs, we do not believe that additional language is necessary. Under paragraph B.1.b.(1), Bureau Heads, or their designated representatives, are responsible for issuing implementing instructions in conformance with this chapter. The types of items mentioned by the commenter would be appropriate for discussion in an implementing instruction issued by a Bureau Head. A bureau suggested that the procedure be modified so that components are granted "the flexibility to delegate the authority to serve as grievance official to appropriate levels of management." We see no need to modify the procedure as suggested because paragraph B.9 already allows management sole discretion to determine the level of the grievance official. A bureau suggested that bureaus be given the flexibility to adopt grievance procedures that are "consistent with the substance of the [Department's] procedure without dictating how grievances are accomplished." Although this suggested change is somewhat unclear, we interpret it as meaning that bureaus should be allowed to implement grievance procedures which differ from the one described in the Order. As noted above, we believe that consistent treatment of Department employees is preferable and, therefore, we have not adopted this suggestion. The same bureau has suggested that bureaus be allowed to use their existing mediation procedures. In this regard, the bureau has described an existing mediation program which requires managers to participate in mediation whenever it is requested by a grievant. In our opinion, the bureau's objective – to require managers to participate in mediation – can be accomplished without changing the language of paragraph B.7. This objective could be accomplished through the issuance of an implementing instruction by the Bureau Head, pursuant to paragraph B.1.b.(1), which instructs managers as to their obligations regarding mediation. Because this comment does not require any modification of paragraph B.7, no change has been made. One office advised that it plans to assign to its Personnel Officer responsibility for managing the optional mediation process. Under this approach, the Personnel Officer would "designate the mediator recommended by the parties" or identify, from an appropriate source, a mediator to work with the parties. Although this comment does not require any revision to the language of the Order, we note that for mediation to be viable, both parties must agree on the selection of a mediator. We would urge bureaus to keep this principle in mind when administering this paragraph of the Order. One bureau suggested that paragraph B.5. be amended to require approval of official time prior to its use. We agree with this suggestion and have adopted the wording proposed by the bureau. One bureau suggested that the time limit for issuing a final decision on a grievance be changed to 120 days following the date on which the grievance is filed, or the date of mediation, whichever is later. The current language requires that a grievance official issue his or her decision "normally within 30 days" after the date of filing or mediation, whichever is later, and allows the grievance official to extend this deadline "if necessary." We believe that the existing time limits for issuing a decision are reasonable and, therefore, this proposed change has not been adopted. One bureau has suggested limiting grievances to 25 pages, excluding attachments. We see no reason to impose this limitation and, therefore, have not adopted this suggestion. One commenter has suggested eliminating the statutory citation in paragraph A. We agree with this suggestion and have modified the document accordingly. One office has suggested that the definition of the term "Bureau Head" be clarified to mean "the head of each OBD component." The Human Resources Dictionary currently defines the term "Bureau Head" as "the head of a bureau, except that the Assistant Attorney General for Administration is the bureau head for the offices, boards, and divisions." Because adoption of this suggestion would be contrary to the existing definition, we decline to accept it. One division has suggested that the order contain an explanation of the term "good cause" as used in paragraph B.10.a. Without specifying where in the order it might be added, the division suggested the inclusion of the following sentence: "Good cause was included in paragraph 10.a. to communicate the grievance official's authority to accept grievances past the filing deadline if the grievance official has determined that the employee has a valid explanation such as exigencies of the work, official travel, or approved leave." We believe that this suggestion is helpful and have included a definition of "good cause" in the Human Resources Dictionary. This same division has suggested that the Human Resources Dictionary include the following citation after the definition of the word "day": "HRO Part 3, Chapter 2, Agency Grievance Procedure." We have adopted this suggestion. One division has suggested that paragraph B.6.b.(4) be modified by deleting the words "or the grievant's representative." The division maintains that this change is necessary to avoid a situation where a grievance, in which a representative is designated, is signed only by the representative. The division opines that this could result in a circumstance where the representative is, in essence, designating himself. We agree with this suggestion and have modified paragraph B.6.b.(4) accordingly. One office questioned the applicability of section B.1.a.(2) to the Office of Inspector General (OIG). That office believes that allowing the Assistant Attorney General for Administration to correct any personnel action in OIG would conflict with existing provisions of the Inspector General Act of 1978. After further review, we agree that this is a legitimate concern, and we have excepted OIG from the provisions of section B.1.a.(2). The prior Order had provisions stating both that matters appealable to the Equal Employment Opportunity Commission would not be grievable and that allegations of discrimination would not be processed under the grievance procedure. While we have retained the former provision in paragraph B.3.b, we have omitted the latter because it is redundant. |
Last Updated September 25, 2001
usdoj/jmd/ps/MacD
