3.2 Objective. The objectives of this chapter are to resolve employee concerns in an equitable and timely fashion at the lowest possible supervisory level and to promote sound and positive supervisor/employee relations and understanding.

3.3 Scope.

A. Employee Coverage. All nonbargaining unit employees of the Service are covered by the grievance procedures regardless of type or tenure of appointment. A former employee of the Service is covered provided the grievance is timely filed prior to separation from the Service and concerns matters appropriate for review under these procedures.

Bargaining unit employees are covered by the Service grievance procedures to the extent that a particular matter is excluded from coverage under a negotiated grievance procedure.

B. Matters Covered. Except as provided in section 3.3C, the grievance procedures are used to review matters of employee concern or dissatisfaction that are subject to the control of management and for which the employee seeks personal relief, including any matter in which the employee alleges that coercion, reprisal, or retaliation has been practiced against him or her for exercising or attempting to exercise rights provided by this chapter.

C. Matters not Covered. The grievance procedures do not apply to the following:

(1) The content of published regulations and policy. As an alternative, an employee's allegation that established policy is in conflict with law or regulation of a higher authority may be submitted in writing through his or her servicing personnel office to the office with primary responsibility for the policy at the Service or Department level for consideration and response.

(2) A decision that is appealable to the Merit Systems Protection Board, the Office of Personnel Management, or the Equal Employment Opportunity Commission under law or regulation.

(3) Nonselection for promotion from a group of properly ranked and certified candidates or failure to receive a noncompetitive promotion.

(4) A preliminary warning notice of an action which, if effected, would be covered under the Service grievance procedures (e.g., a suspension for 14 days or less) or appealable to the Merit Systems Protection Board (e.g., a removal).

(5) The return of a Senior Executive Service (SES) career appointee to the General Schedule or another pay system during the 1-year probationary period or for less than fully successful executive performance, or the reassignment of a SES appointee following his/her receipt of an unsatisfactory rating.

(6) An action that terminates a temporary promotion within a maximum period of 2 years and returns the employee to the position from which temporarily promoted, or assigns the employee to a different position that is not at a lower grade or pay than the position from which temporarily promoted.

(7) An action that terminates a term promotion at the completion of the project or specified period, or at the end of a rotational assignment 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.

(8) A separation action (other than those affecting certain excepted service employees) or expiration of a term or temporary appointment.

(9) The granting of, failure to grant, or the amount of a cash award based upon an employee's overall annual performance, a special act or service, or the adoption of an employee suggestion or invention; the failure to adopt an employee suggestion or invention; the receipt of or failure to receive a quality step increase; or the receipt of or failure to receive an honorary award or any other type of discretionary award, including awards of rank of meritorious or distinguished service for members of the SES.

(10) A decision to grant or not to grant a general increase, merit increase, or performance award under the Performance Management and Recognition System (PMRS).

(11) The substance of performance elements and standards contained in an employee's performance plan or a summary performance rating assigned under the performance appraisal system.

(12) The termination of an employee serving a probationary or trial period after initial appointment for unsatisfactory performance or conduct.

(13) The 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.

(14) An audit or investigation being made of any employee by the Office of Inspector General, the Attorney General, Department of Justice, or the Office of Special Counsel.

(15) A grievance presented by a bargaining unit employee the subject matter of which is covered by negotiated grievance procedures or applicants for employment from outside the Department.

(16) Any employee complaint alleging discrimination on the basis of race, color, religion, sex, physical handicap, mental handicap, national origin, or age.

(17) Employee concerns covered by other Service or Departmental review methods specifically designed to address those issues (e.g., performance appraisal, divestiture orders, coverage under PMRS, separation of probationers).

(18) Matters subject to final adjudication by the General Accounting Office governing statutory entitlements in the areas of compensation, leave, travel, and relocation. Employees questioning the legality of an action involving pay, leave, or allowances should present their concerns in writing to the appropriate servicing personnel office or finance office. The servicing personnel office or finance office, in consultation with the Division of Personnel Management and/or the Division of Finance, will determine from what office or level of management a written determination will be obtained.

3.4 Authorities. This chapter is promulgated under the authority of 5 CFR 771, FPM Chapter 771, and 370 DM 771.3.

3.5 Responsibilities.

A. The Director is responsible for Servicewide administration and direction of the employee grievance procedures. The Director reserves the right to assume jurisdiction of a grievance at any stage of the grievance proceedings.

B. The Chief, Division of Personnel Management is responsible for the development, implementation, and management of the employee grievance procedures.

C. Regional Directors are responsible for the operation of the Service grievance procedures within the Region.

D. Regional Personnel Officers and Chief, Branch of Headquarters Operations are responsible for carrying out the provisions of the Service grievance procedures throughout the Regions and in the Washington Office.

E. Supervisors are responsible for prompt, objective consideration of employee grievances and concerns. Supervisors will make a maximum effort to achieve resolution of grievances at the informal stage and will comply with the time limits outlined in Exhibit 1 of this chapter.

F. Employees are responsible for making reasonable efforts to achieve resolution of grievances at the lowest possible supervisory level. Employees will comply with timeframes contained in Exhibit 1 and furnish information in sufficient detail to identify clearly the matter being grieved and the personal relief being sought.

G. Director of Personnel, Department of the Interior. The Director of Personnel reserves the right to assume jurisdiction of a grievance at any stage of the proceedings.

3.6 Definitions.

A. Adverse Action. A personnel action requiring the use of adverse action procedures contained in 5 CFR 752 (e.g., a suspension).

B. Bargaining Unit Employee. An employee included in an appropriate unit as determined by the Federal Labor Relations Authority for which a labor organization has been accorded exclusive recognition.

C. Days. Calendar days.

D. Deciding Official. The official designated to receive and decide formal grievances. The deciding official must be at a higher administrative level than any official involved in the informal grievance.

E. Employee. A current employee or former employee of the Service for whom a specific remedy can still be appropriately provided.

F. Grievance. A request for personal relief made by an employee or a group of employees acting as individuals on a matter of concern or dissatisfaction relating to conditions of employment that are subject to the control of management. Grievances cover such matters as working conditions and environment, relationships with supervisors and other employees, and disciplinary matters such as letters of reprimand and suspensions of 14 days or less.

G. Grievance File. A separate file subject to the Privacy Act that contains all documents relating to a formal grievance, including but not limited to any statements made by witnesses, the reports of the hearing (when one is held), statements made by the parties to the grievance, and the decision.

H. Personal Relief. A request for a specific remedy made by and directly benefitting the employee, but may not include a request for disciplinary action against another employee.

I. Personnel Appeals Examiner. An examiner in the Office of Hearings and Appeals, Department of the Interior, designated to conduct appropriate inquiries on grievances and make formal recommendations for resolution to the deciding official.

J. Servicing Personnel Office. The personnel office that maintains the Official Personnel Folder of the employee and which provides personnel assistance to the employee and to the management officials involved in a grievance.

3.7 Employee Rights.

A. Representation. An employee is entitled to be accompanied and advised by a representative of his or her choice at any stage of the grievance proceedings. Designation or change of a representative must be made in writing to the official to whom the grievance is being presented to authorize the representative to have access to the employee's records. If the employee chooses another employee of the Service as a representative, that employee will be allowed to serve unless such representation would conflict with the priority needs of the Service by contributing appreciably to the neglect of the representative's duties, constitute a clear conflict of position (e.g., the representative is a supervisor, personnel or equal employment opportunity specialist, attorney of the Federal Government) or conflict of interest, or cause unreasonable cost to the Government.

If an employee's representative is disallowed for reasons described above, the employee may request reconsideration of the decision by the Director of Personnel, Department of the Interior. The request must be filed within 10 days of receipt of notification that the representative has been disallowed. (See Appendix 1 for appropriate address.)

The Director of Personnel will make a final decision regarding the disallowance no later than 10 days after receipt of the employee's request and pertinent materials from the Service. The employee is entitled to receive a decision on the request for reconsideration before proceeding with the grievance.

B. Freedom from Reprisal. No employee will interfere with or attempt to interfere with another employee's exercise of rights provided by this chapter. Furthermore, an employee and his or her representative will be assured freedom from restraint, interference, coercion, discrimination, or reprisal in exercising or attempting to exercise rights provided by this chapter.

C. Official Time. Employees and their Service-employed representatives will have a reasonable amount of official time to present grievances if otherwise in an active duty status. Presentation of a grievance includes discussions with supervisors in the informal grievance stage and attendance at any inquiry or meeting at the formal grievance stage. Employees must seek prior approval from their immediate supervisor for the use of official time to present a grievance. In its discretion, management may determine other grievance activities for which some amount of official time may be appropriate. Official time will not be granted for the preparation of a grievance.

D. Consultation in Presenting a Grievance. In presenting a grievance, an employee may communicate with and seek advice and assistance from the servicing personnel office and/or other personnel designated as counselors of the Service (e.g., equal employment opportunity counselors, ethics counselors). These sources provide procedural advice and factual information, but do not address the merits of a grievance.

3.8 Informal Grievance Procedures. Except as provided in section 3.9A(1), an employee desiring consideration of a grievance must first seek informal resolution of the matter through supervisory channels. A request for informal resolution of a grievance should be made as promptly as possible, but not later than 15 days after the date of the incident or action upon which the grievance is based, or 15 days from the date the employee became aware of or should have become aware of the incident or action upon which the grievance is based. The time limit may be extended by management when the employee shows good cause. A grievance regarding a continuing practice or condition may be presented at any time. The initial presentation of a grievance may be oral or written and will normally be made to the immediate supervisor; however, any subsequent presentations regarding the grievance must be made in writing. When the grievance concerns relationships with, or actions taken by the immediate supervisor, the grievance may be presented to the next higher level of supervision. Whether a grievance is presented orally or in writing, the employee must make clear that he or she is filing a grievance under this chapter and must specify the personal relief being sought.

B. Decision on Informal Grievance. The employee must be given a written decision by the management official to whom the grievance was presented within 7 days after the date of the presentation of the grievance. Officials who receive oral grievances must prepare a written summary of the oral presentation and present such to the employee, along with a decision on the grievance. If the matter or concern requires consultation with other supervisors or staff officials, the employee will be advised of their participation in the decision. The written decision will contain the reasons and rationale on which the decision is based, and will inform the employee of the right to present the grievance under the formal procedure if dissatisfied with the decision under the informal process. The employee will also be referred to the servicing personnel office for technical assistance concerning the formal grievance procedures.

C. Rejection of Grievance Under the Informal Procedures. A grievance cannot be rejected for any reason under the informal process. If the supervisor believes that the grievance is not timely or consists of a matter not covered under the grievance procedures, the supervisor must advise the employee in writing of the reason(s) therefor within the 7-day time period, and inform the employee that he/she may present the grievance under the formal procedure for a final determination.

3.9 Formal Grievance Procedures.

A. Presenting a Formal Grievance. An employee may file a formal grievance under the following conditions:

(1) To contest a written reprimand or a suspension of 14 days or less;

(2) To contest the written decision under the informal procedures; or

(3) If no decision is rendered within the 7-day time period by the supervisor to whom the grievance was presented at the informal stage.

An employee's formal grievance will be filed with the servicing personnel office within 5 days of the date the employee is informed in writing of a decision under the informal procedure, or within 5 days after failure to receive a decision under the informal procedure. An employee contesting a written reprimand or suspension of 14 days or less has 15 days from the date on which the reprimand or suspension decision was received to file a formal grievance with the servicing personnel office.

B. Contents of Formal Grievance. The formal grievance must be in writing and contain sufficient detail to identify and clarify the basis for the grievance. Specifically, the grievance must state:

(1) The particular action or incident on which the grievance is based;

(2) The date the action or incident occurred, if known;

(3) The date the employee first learned of the action, if applicable;

(4) The reasons the employee believes the action to be unjustified or that he or she was treated unfairly; and

(5) The personal relief sought by the employee.

Documentation resulting from the informal grievance process, if applicable, must be included with the formal grievance. If the employee has a representative, that individual's name, office address and telephone number must also accompany the grievance.

C. Action by Servicing Personnel Office. Upon receipt of a formal grievance, the servicing personnel office will make a thorough technical review of the grievance and, within 7 days, will take action to accept or reject the grievance.

If the grievance is accepted, a grievance file is established in accordance with the procedures set forth in section 3.14 and forwarded to the deciding official for consideration via a memorandum outlining the responsibilities of a deciding official as referenced in section 3.9E. A memorandum shall also be sent to the employee or the employee's representative informing that the grievance has been accepted for processing at the formal stage and advising of the designated deciding official in the matter and his/her timeframe for rendering a decision. Notification to the employee or the employee's representative shall also state that a copy of the grievance file will be made available to the employee or his/her representative upon request to the servicing personnel office.

The grievance will be rejected with a written explanation of the reason(s) for the denial and returned if any of the following apply.

(1) The grievance consists wholly of matters excluded from coverage under the grievance procedures;

(2) The grievance was not filed timely and the employee does not show good cause for the delay; or

(3) The grievance is incomplete and does not contain the information specified in section 3.9B. (See section 3.16 concerning reconsideration of a rejected grievance.)

D. Designation of Deciding Official. The servicing personnel office will determine the appropriate deciding official on a grievance. Deciding officials are, in most cases, the next higher supervisor in the chain of command over the supervisor who made the grievance decision at the informal stage. The deciding official will be an individual who has not previously been directly involved in any part of the informal procedure or taken an action or made a decision which is at issue in the grievance (excluding authorization action without regard to the merits of the issue). If after receipt of the grievance file the deciding official becomes aware that he or she has had prior involvement in the matter, the deciding official will disqualify himself or herself and forward the grievance file to the next higher supervisory level. The servicing personnel office will be advised in writing of the disqualification and forwarding.

E. Action by the Deciding Official. Upon receipt of the grievance file, the deciding official will review the file and determine if:

(1) All or part of the relief requested by the employee should be granted, or if there is an alternative remedy which might be acceptable to the employee; or

(2) No decision acceptable to the employee can be made.

In either case, the deciding official must issue a written decision to the employee or the employee's representative within 20 days after receipt of the grievance file. The written decision will contain the reasons and rationale upon which it is based and will advise of others' involvement if the matter required consultation with other supervisory/managerial officials or employees. Additionally, the decision must inform the employee of the right to have the grievance reviewed by a personnel appeals examiner in the Office of Hearings and Appeals (OHA) if the employee is not satisfied with the decision. The decision must clearly state that any request for review by an examiner in OHA must be made in writing to the deciding official within 7 days after receipt of the written decision, and that failure to make such a request within the 7-day time limit will result in termination of the grievance for failure to prosecute unless the employee shows good cause. The deciding official shall submit a draft of the formal grievance decision to the employee's servicing personnel office for a technical compliance review prior to issuance, and will also provide a copy of the final decision notice to the personnel office following issuance to the employee or his/her representative.

3.10 Request for Review by a Personnel Appeals Examiner. Upon receipt of a request for review by an OHA personnel appeals examiner, the deciding official will notify the servicing personnel office which will, within 7 days, notify OHA of the request for an examination. Notification is by memorandum to the Chief Personnel Appeals Examiner, OHA, stating the name, title, location, and telephone number of the employee and the employee's representative, if any, as well as the name, title, address, and telephone number of the official with whom the examiner will communicate directly regarding the arrangements for a hearing or inquiry.

The memorandum will transmit the grievance file to OHA and identify the deciding official by name, title, and office address (including telephone number) so that the complete grievance file can be transmitted by OHA to the deciding official upon completion of the findings and recommendations.

The Chief, Division of Personnel Management, the deciding official, and the employee or the employee's representative will be furnished copies of all information submitted to OHA at the time the information is sent to OHA requesting a review by an examiner. If a copy of the grievance file has previously been provided to any of these individuals under section 3.9C, the servicing personnel office need only provide the individual(s) with that information not originally included in the grievance file. (See Appendix 2 for OHA grievance examination process.)

3.11 Direct Referral to the Office of Hearings and Appeals. An employee can also request review by a personnel appeals examiner in OHA if, within 20 days after receipt of the grievance file, the deciding official has not rendered a decision. In this instance, a request for review by an examiner will be made directly to the Chief Personnel Appeals Examiner, OHA, by the employee. (See Appendix 1 for appropriate address.)

3.12 Expenses of Examination. When a personnel appeals examiner is assigned by OHA, the salary of the examiner will be paid by OHA. Except for such expenses incurred by the employee in presenting his or her case, such as attorney's fees, stenographic fees, salaries of witnesses other than Departmental employees, etc., all expenses incurred in the conduct of a hearing or inquiry, including transcript costs, salary and travel expenses of the employee and other Government employees called as witnesses, and the travel expenses of the examiner will be borne by the employee's (grievant) office.

3.13 Grievance Decision After OHA Inquiry.

A. The OHA examiner submits a report of findings and recommendations to the deciding official and to the employee or the employee's representative within 30 days after conclusion of the inquiry or after receipt of a hearing transcript, if required. The official who issued the decision at the formal grievance stage remains the deciding official.

B. Within 10 days after receipt of the OHA examiner's report, the deciding official must take one of the following actions:

(1) Accept the examiner's recommendation and issue the decision on the grievance;

(2) Grant the remedy sought by the employee without regard to the examiner's recommendation and inform the employee or the employee's representative in writing of the decision; or

(3) Determine that the examiner's recommendation is unacceptable and request the employee's servicing personnel office to submit the case for final decision by the Director of Personnel, Department of the Interior. Submission of the grievance file to the Director of Personnel for a decision shall be via a memorandum from the servicing personnel officer through the Chief, Division of Personnel Management. The memorandum shall state the reason(s) why the deciding official believes the examiner's recommendation is unacceptable, and a copy will be provided to the employee or the employee's representative, the OHA examiner, and the Chief Personnel Appeals Examiner. The deciding official must inform the employee or the employee's representative in writing of his/her determination to submit the grievance to a higher authority for decision.

C. The decision on a grievance must be in writing and contain the following information: (Decisions must be reviewed by the employee's servicing personnel office prior to issuance.)

(1) Findings on all issues covered by the examiner's inquiry;

(2) A statement as to whether the grievance is found to be justified and the specific corrective action to be taken, if any; and

(3) The employee's further review rights, if applicable (see section 3.15).

D. A copy of the deciding official's decision must be sent to the examiner, the Chief Personnel Appeals Examiner, the employee's servicing personnel office, and the Chief, Division of Personnel Management. (See Appendix 1 for appropriate addresses.)

3.14 Grievance File. A grievance file is established for each formal grievance. All documents contained in the grievance file must be independently indexed with adhesive tabs, listed in a table of contents, and secured and bound in an appropriate file folder, preferably with a paper fastener. The documents are to be placed in the folder in descending chronological order. The grievance file will not contain any document that is not made available to the employee. The file will be disclosed and maintained in accordance with the Privacy Act and the Freedom of Information Act. The complete grievance file will consist of the following, as developed:

A. The written complaint;

B. A written summary of action and results during both the informal and formal proceedings;

C. Copies of the advance notice, replies, and final decision where an adverse action is involved;

D. Copies of letters of reprimand, warning, or similar documents where such matters are at issue;

E. Copies of personnel action documents, where appropriate;

F. The complete hearing record, if one is conducted by the personnel appeals examiner;

G. The examiner's summary of an inquiry, if one is held;

H. The examiner's findings and recommendations; and

I. The written decision of the deciding official or a statement of reasons for referring the grievance to a higher authority for decision.

3.15 Review of Grievance Decisions. Notwithstanding section 3.13B(3), there is no right to further review of a deciding official's final decision on a grievance by the Department or the Merit Systems Protection Board. However, employees may request a review by the Director of Personnel, Department of the Interior, when the grievance involved a loss of pay (e.g., a suspension, AWOL charges, etc.), and the final decision of the deciding official does not grant backpay if part of the personal remedy sought. Requests for such review by the Director of Personnel must be submitted within 15 days after receipt of the deciding official's final written decision.

3.16 Review of Rejected, Canceled, or Terminated Grievances. When a grievance is rejected, canceled for failure to prosecute, or otherwise terminated without a determination on its merits, employees may request review of the rejection, cancellation, or termination on procedural grounds by the Chief, Division of Personnel Management. Requests for review by the Chief, Division of Personnel Management, must be submitted within 15 days after receipt of a rejection, cancellation, or termination decision.

The Chief, Division of Personnel Management, will issue a written decision to the employee or the employee's representative on his or her request for review. If the Chief, Division of Personnel Management, was involved in the rejection, cancellation, or termination of the grievance, the employee's request for review will be forwarded to the Director of Personnel, Department of the Interior, for a determination.

3.17 Cancellation of Grievance. A grievance may be canceled under the following conditions:

A. At the employee's written request;

B. Upon termination of the employee's employment with the Department unless the personal relief sought may be granted after termination;

C. Upon the death of the employee unless the grievance involved a question of pay; or

D. For failure to prosecute if the employee does not furnish required information or fails to proceed with the advancement of the grievance in accordance with this chapter.

3.18 Special Considerations.

A. Allegations of Unfair Labor Practice. An allegation that management has engaged in an unfair labor practice made in connection with a grievance may, if otherwise grievable, be incorporated into a grievance and processed under negotiated grievance procedures or, at the discretion of the employee, be processed under 5 USC 7116, but not both.

B. Allegations of Discrimination. Whenever an employee makes an allegation of discrimination in connection with a grievance, the official considering the grievance will promptly terminate processing the grievance and refer it to the Equal Employment Opportunity Officer for processing under 370 DM 713 or negotiated grievance procedures, if applicable.

C. Dual Processing. Initiation of a complaint under negotiated grievance procedures or other intra-Departmental complaint systems supersedes and forecloses advancement of the same matters under this chapter.

D. Negotiated Grievance System. Grievance procedures negotiated under collective bargaining agreements provide for processing grievances filed by a labor organization, members of the bargaining unit, or their representatives. Where such procedures exist, they will be used rather than the grievance procedures contained in this chapter.

E. Complaints of Prohibited Personnel Practices. A complaint of a prohibited personnel practice filed with the Office of Special Counsel will necessitate cancellation of a grievance of the same matter filed under this chapter.