A. As soon as possible after receipt of a grievance file, the personnel appeals examiner reviews the grievance file, eliminates from consideration any matters not covered under the grievance procedures, and notifies the parties accordingly. For matters covered, the examiner conducts an inquiry of a nature and scope appropriate to the issues involved. At the examiner's discretion the inquiry may consist of:

(1) The securing of additional documentary evidence;

(2) Personal interviews;

(3) A group meeting;

(4) A hearing (when necessary to obtain the facts and when issues as described in B(5) are present); or

(5) Any combination of (1) through (4).

B. The following characteristics of the types of inquiries may be useful as a general guide to help assure that comparable inquiry is made for comparable matters.

(1) Securing of documentary evidence. Every grievance may involve the securing of some kind of documentary evidence which would be considered by an examiner. An inquiry conducted primarily on documentary evidence would involve decisions concerning which regulation is applicable and decisions where there is no real dispute of fact. Characteristics of such grievances are:

(a) Issues concerning claim of improper application or interpretation of policies and regulations established by another office at a higher level; or

(b) The application or interpretation required specialized knowledge or judgment to ensure accuracy and consistency and there is essential agreement about the facts.

(2) Personal interviews. An inquiry consisting primarily of personal interviews usually involves problems arising out of the employee's immediate work environment. The need for documentary evidence is minimal. Characteristics of such grievances are:

(a) An unfavorable work environment;

(b) Situations within the employee's work group;

(c) Impact of local policies, regulations, or directives; or

(d) Local managers have discretion and are free from specific outside requirements.

(3) Group meeting. It is rare for a group meeting to be the only method of inquiry. As a technique, it would probably be combined with personal interviews, and perhaps documentary evidence. Issues to be covered in a group meeting usually involve opinions or judgments which are subjective in nature as opposed to serious disputes of facts which are better handled at a hearing. Characteristics of such grievances are:

(a) Issues involving attitudes and opinions rather than regulatory or policy questions per se;

(b) Issues where the manager/supervisor has discretion and is free from specific outside requirements;

(c) Issues concerning less severe disciplinary actions.

(4) A combination of the above. Combinations of securing documentary evidence, personal interviews, and a group meeting usually involve complex issues. Characteristics of such grievances are:

(a) Improper application or interpretation of policy and regulation; or

(b) Improper application or interpretation of procedures in combination with subjective consideration or evaluation of employee qualifications, capabilities, potentials, or behavior.

(5) Hearing. The decision to conduct a hearing involves the determination by the grievance examiner that it is the only way to satisfactorily resolve a complex dispute with serious disagreement of facts by witnesses. The decision to schedule a hearing is not the prerogative of the grievant. Concurrence by the Chief Personnel Appeals Examiner must be secured before a hearing is scheduled. While there may be preliminary interviews, meetings, or gathering of documentary evidence, a hearing is intended to be a last resort method of developing the facts at issue. Characteristics of such grievances are:

(a) Suspensions of 14 days or less and other cases of loss of pay such as AWOL charges;

(b) Violations of employee statutory or regulatory rights; or

(c) Separations of certain excepted employees covered by the grievance procedures.

C. Management officials and employees will cooperate with the examiner in promptly providing such assistance as the examiner deems necessary for the inquiry. The examiner schedules proceedings so that, whenever possible, the inquiry is begun within 21 days after the date the grievance is assigned. Delays in the proceedings will be held to an absolute minimum.

D. In order to ensure completely fair and impartial consideration by the examiner, ex parte communications to the examiner by any parties to the grievance are prohibited.

E. The examiner is vested with delegated authority to administer an oath or affirmation, to rule on offers of proof, to receive relevant evidence, and to regulate the course and conduct of the inquiry.

F. The examiner will permit the employee to appear in person to present the grievance, if a hearing is held. However, there may be occasions by reason of unusual location or other extraordinary circumstances that a personal presentation is not administratively feasible. In such an event, the examiner should state why the employee was not present and certify that the written presentation includes all pertinent facts.

G. When the examiner holds a group meeting or hearing, a labor organization which holds exclusive recognition for the unit in which the employee works is given the opportunity to have an observer present. The observer is permitted to state the views of the union at an appropriate time as determined by the examiner. The right of the labor organization to be present must not impair the right of the employee to handle his/her own grievance and to choose his/her own representative.

H. The burden of proof will be carried by the employee unless the issue contested is a disciplinary or adverse action in which case the party who initiated the challenged action bears the burden of proof. In the latter situation, management must establish the facts it asserts by a preponderance of evidence demonstrating that its action was for such cause as would promote the efficiency of the Service, and it is the responsibility of the grievant to support any claim made in his/her defense.

I. The examiner's opinion may not be substituted for the judgment of management in initiating or choosing a disciplinary action unless there is evidence that management acted arbitrarily or capriciously.

J. In recommending any reduction of a disciplinary penalty, the examiner should find persuasive evidence that the severity of discipline imposed was not reasonable in view of (1) the gravity of the offense; (2) past practice in enforcing the rule; (3) the employee's past record and length of service; and/or (4)mitigating circumstances not previously considered by management in determining the penalty.

K. The examiner will hold the inquiry near the place where the grievance occurred, as practicable, and will conduct the inquiry expeditiously and in a manner to obtain a clear understanding of the facts. The inquiry may be conducted at another site for the convenience of the parties.

A. It a hearing is held, the examiner will determine whether the hearing will be reported by verbatim transcript or written summary. The examiner must include all pertinent documents submitted to, and accepted into the hearing record. When the hearing is reported verbatim, the examiner will make the transcript a part of the record of the proceedings.

B. When the hearing is not reported verbatim, the examiner must have a suitable summary of the pertinent testimony prepared. It the parties agree to the summary, they should sign it. If they do not agree with it, they should submit written exceptions, which together with the summary, must be made part of the hearing record.

C. The examiner must include the record of the hearing in the grievance file. The employee or representative will be given a copy of a summary of the hearing and the report of the examiner's findings and recommendations. They may also review the transcript.

Notwithstanding any other provisions of this chapter, the following expedited hearing procedure, which supersedes and substitutes the customary grievance examination process may be used with the mutual consent of both the deciding official and the grievant.

(1) The inquiry will be informal.

(2) No brief shall be filed or transcripts made.

(3) There shall be no formal evidence rules.

(4) Each party's case will be presented by a previously designated representative.

(5) The examiner will have the obligation of assuring that the necessary facts and considerations are brought before him/her by the representatives in the most expeditious manner.

(6) A single case should normally not require more than 4 hours to be heard with each party being allowed up to 2 hours to examine and shall ensure that the length of the inquiry is not unnecessarily extended because of irrelevant or repetitious testimony, etc.

(7) Either party may present "expert" witnesses to testify. The commonly accepted definition of an expert will be used to determine whether a proposed witness can be considered an expert (e.g., one who may have no firsthand knowledge of the case, but who has special skill, training, or experience in a particular field), and without whose technical assistance the examiner may be unable to understand the relationship between the facts and the conclusions to be drawn from those facts.

(8) The examiner will be urged to issue a bench decision at the inquiry but, in any event, shall render the decision within 48 hours after conclusion of the hearing. This decision shall be based on the record developed by the parties before and at the inquiry and shall include a brief written explanation of the decision.