PERSONNEL APPEALS BOARD i GM ' Iij;J , 2: ANNUAL REPORT 1989 .M'mJ.· ANNUAL REPORT 1989 PERSONNEL APPEALS BOARD jessie james, jr. Chair jonathan E. Kaufmann Vice Chair Isabelle R. Cappello Roger P. Kaplan Paul A. Weinstein Members R E-t= c,f\O \-\-:5 q~02... ",51 2- ' \q'6~\X'~ Biographicallnformation jessie james, Jr. , was appointed to the Board in 1985 and became Chair in 1987. A former Merit Systems Protection Board, Office of Special Counsel, and Department of Justice attorney, Mr. james is in private practice in Virginia. In addition to hi s practice, which includes emp loyment cases, he is owner and president of a company that conducts EEO in vestigations. Mr. James also teaches courses on EEO law for the government. Jessie James. Jr. jonathan E. Kaufmann is a partner in the law firm of Kaufmann and Brick. In private practice since 1981, Mr. Kaufma nn specializes in labor arbitration and mediation as well as aD mediation and decision writi ng. He has been a member of the Personnel Appeals Board since 1985 . Mr. Kaufmann was the Chair from 1986-1987 and the Vice Chair from 1987-1989. Jonathan E. Kaufmann Isabelle R. Cappello was appointed to the Board in 1986. She is retired after 30 years of federal service, wh ich included service as an officer in the U.S. Navy; an attorney at the U.S. Departments of Justice and Labor; an assistant genera l cou nsel at the Equal Employment Opportu nity Comm iss ion; and an administrative law judge at the Interstate Commerce Commission and the Federal Labor Rela tions Authority. Isabelle R. Cappello Page I Biographical Information Appointed to the Board in 1986, Roger P. Kaplan is a labor arb itrator from Washington , D .C. A graduate of the University of Maryland, College Park, Mr. Kaplan received his juris doctor degree from the George Washington University Law Center in 1968. He is on the National Labor Pane ls of the American Arbitration Association , the Federal Mediation and Conciliation Service, and the National Mediation Board. Mr. Kaplan serves on numerous permanent arbitration panel between unions and employers. Roger P. Kaplan Appointed to the Board in 1987, Professor Paul A. Weinstein directs the Industria l Relations and Labor Studies Center and is a member of the De- partment of Economics at the University of Maryland, College Park. An arbitrator I isted by the American Arbitration Association and the Federal Medi ation and Conciliation Service, he specializes in public-sector issues. He chairs the Statistics Comm ittee of the Industrial Relations Research Association and the Public Sector Labor Relations Conference Board. His research focuses on the public sector and Spanish industrial relations. Paul A. Weinstein Page 2 Contents Chapter 1 Protection of Employees in the Executi ve Branch 5 Introduction GAO Personnel Appea ls Board and its Office of Genera.! Cou nsel 6 Chapter 2 Personnel Appeals Boa rd 8 Office of Genera l Counse l 8 Organization and Office of EEO Oversight 8 Functions Chapter 3 The Appeals Process 12 Indi v id ual A ppea ls 12 Appeals to and Indi vidual Cases Filed 17 Adjudication by the EEO Class Action Appea ls 17 Personnel Appeals Appea ls to the Federal Courts 17 Significa nt Boa rd Decisions 19 Board Chapter 4 Revised Board Regulations 20 Meetings W ith GAO Offices 23 Personnel Appeals Publica tion of Board Dec isions Board Administrative and Dec ision Summaries 23 Activities Chapter 5 Stay Proceedings 25 Information Correcti ve Actio n Proceedings 25 Disciplinary Proceedings 26 Investigation by the PAB Office of General Counsel Chapter 6 Oversight Study of Career Ladder Promotion Processes 27 EEO Oversight New Direct ions for Oversight 27 Activities Study of Equal Employment Opportunity for Disabled Employees 27 Page 3 Contents Abbreviations EEO equa l employment opportunity EEOC Equal Employment Opportunity Com mi ssion Fl RA Federal Labor Relations Authority GAO General Accounting Office MSPB Merit Systems Protect ion Board OGrjPAB Office of General Counsel of the Personnel Appea ls Board Figures Fi gure 2.1 : Organizati o n of the Perso nnel Appeals Board 10 Figure 3.1 : Process of Case Fro m Petition for Review to Termination of Appeal 14 Figure 3 .2: Process of Case From Petition for Review to Final Board M ember' s Deci sion With No Appeal 15 Fi gure 3.3: Process of Case From Petition for Rev iew to Judicial Rev iew 16 Fi gure 3.4 Disposition of Cases Filed With OGC/PAB 18 FY 198 1-FY 1989 Page 4 Chapter 1 Introduction The Personnel Appea ls Board of the Genera l Accounting Office is an independent agency estab li shed under the 1980 GAO Personnel Act (P.L. 96- 1911 to ensure that GAO employees received the same protection as the ir executive-branch counterparts. Pursuant to this statute, GAU was allowed to create its own personnel system, independent of admin istrative, adjudicatory, and oversight agencies, to afford GAO employees the same rights as their counterparts in the executive branch (who are covered by the Civil Service Reform Act). Protection of Employees in the Executive Branch In the executive branch of government. several agencies are responsible for protecting employee rights: the Merit Systems Protection Board (M;PB), the Federal Labor Relations Authority (FlRA), the Equal Employment Opportunity Commission (EEOC), the Office of Special Counse l, and the flRA General Counsel. Three of these agencies (MSPB, flRA, and ~W() adjudica te employ- ment disputes, and the other two agencies (the Spec ial ounse l and the flRA Genera l Counsel) investigate and prosecute all eged violations of the law. The MSPll adjudicates appeals involving personnel acti ons including • termination of employment, • reduction-in-grade, • reduction-in-force, • suspension of more than 14 days, and • denial of within-grade salary increases. The flRA is responsible for resolvin g a wide range of issues involved in the labor-management relations program in the executive branch, including • unfair labor practices, • negotiabi lity determinations, • appropriate bargaining unit determinations, • representative labor organization elections, • arbitration award reviews, and • impasse resolution negotiations. The EEOC is responsible for adjudicating agency decisions on £EO (equal employment opportunity) complaints and for overseeing [fO programs. The Special Counsel litigates cases before the MSPB. The primary responsibilities of the Special Counse l include investigating and prosecuting prohibited Page 5 Chapter 1 Introdu Clion personnel pra ctices and prohibited po li tical acti vity (often referred to as Hatch Act vio lations). The fLRA General Counsel in vest igates and prosecutes unfa ir labor practices before the FLRA. GAO Personnel Appeals Board and its Office of General Counsel The GAO Personnel Act has consolidated the above-mentioned functions into the GAO Personnel Appeals Board and its Office of Genera l Counse l. The Board has substantia ll y the same authority at GAO as that of the MSPB, the FLRA, and the EEOC, comb ined, to adjudicate disputes concerning personnel actions, unfair labor practices, and discrimination matters. It also has HO oversigh t authority over GAO . The PAB General Counse l has authority to investigate and prosecute alleged vio lations of the law for w hi ch the Board has jurisdiction. Just before fisca l year 1989 began, President Reagan signed into law a bill amend in g the GAO Personnel Act.' The amendments made four importa nt changes in the law: • The term of Board members: During the years, a consensus developed th at the Board members' 3-yea r terms were too short, disrupting the contin uity of the Board's membership. In most years, two members left the Board and two new members joined. Because they served part time, members found that assuming full membership respons ibilities took ma ny months. And, si nce cases may take more th an a yea r from the time of the appea l to a decision, members had to decline to hear new cases during most of thei r last yea r on the Board to ensure case continuity. Therefore, a member's effective time on the Board was less than 2 years. Fin all y, having to replace two members 2 out of every 3 years diminished the supp ly of qualified potential members. To addr('ss these problems, the amendments en larged members' terms from 3 to 5 yea rs and provided that on ly one member was to leave the Board each year . • Board members ' experience req uirements: The original law required that nominees have 3 years of experience in adjud icating or arbitrati ng person- nel matters and that they be nominated by organizations com posed prima- rily of individuals with such experience. In the past, most of the Board nominees were private arbitrators. Arbitrators, however, trad itionally deal w ith labor relations issues other than discrimination and frequently have little or no discrimination law experience. The majority of the Board's work 'General Accounting OliKe Personnel Amendments ACI of 1988 W.l. 100-42&. 102 Stat. 1598 (1988)). Page 6 Chapter 1 Int roduction load, however, has involved complex [EO cases. To allow the Board to tap into the supply of EEO lawyers and specialists, the amendments delete the requirement for 3 years of experience in adjudicating or arbitrating person- ne l matters. Therefore, app licants not nominated by neutra l organ izations may now be considered . • The right of GAO employees to recover attorney fees for successful EEO litigation in federal cou rt: A principal purpose of the original GAO Personne l Act of 1980, as explained by then Comptroller General Staats, was to make sure that GAO employees had the same rights and protection as other federal employees under the fed era l antidiscrimination statutes. It was assumed that the Act accomplished this purpose unti l 1987, when a federal court of appeals decided that the Act did not incorporate all of the rights and rem- edies oj those statutes. ' Specifically, it ruled that GAO employees could not recover attorney fees for successfu l Ero litigation in federal court, as cou ld executive-branch employees. The 1988 amendments to the CAO Personnel Appeals Act reversed that decision . • Judic ia l review of Board decisions: The original law provided for appea l of Board decisions to the appropriate federa l court of appeals' In practice, almost all appeals of Board decisions went to the U.S. Court of Appeals for the District of Columbia. When the origina l law was passed, MSPB decisions were handled in the same manner. In 1982, however, the Congress created the U.S. Court of Appeals for the Federal Circuit and gave it exclus ive jurisdiction over certain federa l government subjects. Appeals from MSPB decisions go to the Federal Circuit. The amendments to the Act require that appea ls of Board dec isions also go to the U .S. Court oj Appeals for the Federa l Circuit. lGent.·r.l1 Accollntin~ Office v. GAO Personnel Appt~als Board, Civ. No. 86-1443 lD.C. Ci r. lune 29. 19B7) (u npublished); (Reh. denif.!d. Sept. 1D. 1987) (unpublished). IThi-:. provision applies to cases that do not raist' ,m HO issue. Such cases may not be heard by a district cou rt ; they may be Jppc;·alcd only to the appropri.lIC federcll court of appeal.; Jft~'r J iinal Board decision. For EEO ca<;es. the employee or dpp li canl for employment mJY file in federal dj~lricl court for tria l before a feder.ll judge. Page 7 Chapter 2 Organization and Functions Personnel Appeals Board The PAB is composed of five members with experti se in the fields of EEO, labor law, arbitration, medi ation, and adjud ication. The Board mem bers select their own Chair and Vice Chair for 1-ye"ar renewable terms. The Board hears appeals from GAO employees arising from (1) a removal , a suspension for more than 14 days, a reduction in grade or pay, or a fur- lough of not more than 30 days; (2) a prohibited personnel practice; (3) an un fa ir labor practice or other labor relations issue; and (4) an act ion involv- ing prohibited discrimination. It also hears EEO class act ion appeals and is responsible for EEO oversight of c"o. As shown in figure 2.1, the Boa rd 's Office of General Counse l, the Office of EEO Oversight, and the foll owing staff positions assist Board members: • The Executive Director manages the Board's staff an d dai ly office opera - tions. • The Solicitor is the principal aide to the Chai r and to members concernin g lega l matters. • Two sec retaries/reception ists/pa ralega ls provide clerical and admin istrative support to th e Executive Director, Solicitor, and Director of EEO Overs ight. • A law clerk (or law clerks, as necessa ry) assist the staif w ith legal research and drafting and w ith adm inistrative matters. Office of General Counsel The Board Chair appo ints the General Counsel, w ho serves at the pleasure of the Chair. The General Counsel represents the interests of GAO employees in litigation before the Board and in court. The Office also cond ucts self- initiated investigations. A Deputy General Cou nse l ass ists the Genera l Co un sel and, when necessa ry, acts for the Genera l Counsel. A para legal! secreta ry also assists the General Counse l. In add ition, OGe/PAB uses contrac- tors to help with statistical analyses and investigations. Office of EEO Oversigh t The position of Director of the Office of lEO Oversight was created in 1988. The D irector is responsib le for propos in g areas for review as well as con- ducting stud ies approved by the Board. Poge 8 Chapte r 2 Organizat ion and Functions The D irector is also respo nsible for overseeing and operating the Boa rd 's reportin g and retrieva l system, w hi ch receives EEo- releva nt GAO documents and repo rts. Page 9 L Chapter 2 Organization and FunClions Figure 2.1 : Organization of the Personnel Appeals Board Board Member Board Member Chair Office of General Counsel General Counsel Deputy General Counsel Paralegal/Secretary Page 10 Chapter 2 Organization and FundiQns Vice Chair Board Member Admin istrative Judge (Projected) Executive Director Director, Office of EEO Oversight Solicitor to the Board Executive Ass istant Law Clerk to the Board (Projected) Secretary! ReceptionisV Page 11 Chapter 3 Appeals to and Adjudication by the Personnel Appeals Board The Appeals Process A GAO employee, a group of emp loyees, a labor organization, or an app li - cant for GAO employment may bri ng appea ls to the Board. In addition to hea ring indi vidual complaints, the Board also has jurisdi ction to hea r EEO class actions. Individual Appeals OGe)PAB investiga tes an individual complaint. After this investigation, OGe) PAB may encourage settlemen t of the dispute. If no settlemen t occu rs, a right-lo-appeal letter notifies the emp loyee, GAO management, and the Board that the investi gative phase is completed. The employee also re- ceives, along w ith the letter, OGe)PAIl'S report and recommendations, which discuss the lega l and fa ctua l basis of the appea l. As privileged comm uni ca- tions between OGe)PAB and the emp loyee, the report and recommendations advise the employee whether OGe)PAS has found reasonable evidence to believe that the employee's rights under the GAO Personnel Act have been vio lated. If OGC/PAIl determines that such evidence exists, it offers to repre- sent the emp loyee before the Board at no expense to the emp loyee. If OGe) PAB determines th at such reasonable evidence does not ex ist, it advises the employee that he or she may personal ly present a petition to the Board or arrange for representation in further processing the appeal. Regardless of OGC/PAS'S fi ndings, the employee may elect representation by private counselor represent him or herself. When an emp loyee accepts OGC/PAB'S offer of representation , however, OGC/PAB must be the lead counse l on the case. If an employee chooses to pu rsue an appea l, he or she must file a petition for rev iew with the Board with in 20 ca lenda r days after rece iving the ri ght- to-appeal letter. After receiv ing a petition, the Chair appo ints a Board member to hear and dec ide the case. The Board member's decision be- comes final unless the PAB or ei ther party requests that the full Board recon- sider the decision. Almost all fina l decisions are appealable to the federal cou rts. Certa in labor-related cases are not. OGe)PAB may also be involved in an employee's appeal in another circum- stance; it may intervene in an employee's case before the Board to repre- sent the public interest. Ordina ril y, this woul d occur when the interpreta- tion of a civi l service law, rule, or regu lation is at issue. Page 12 Cha pter 3 Appea ls to and Adjudication by the Personnel Appea ls Board The following lists the steps followed by OGc/PAB to process charges leading to filing petitions for review with the Board. 1. Charge received. 2. Charge acknowledged. 3. Charge entered in case tracking system . 4. Case file requested from (;AO. 5. Charge assigned for investigation . 6. Agency response and case file rece ived. 7. Agency response and case fil e reviewed. 8. Charging party's claim investigated. 9. Relevant legal issues researched. 10. Other relevant witnesses intervi ewed. 11. Results of investigation discussed with charging party. 12 . Report and recommendations prepared for charging party . 13. Report and recommendations delivered to charging party. 14. Petition for review filed with Board. The following lists the steps involved to process petitions for review and cases at the Boa rd level. 1. Notice of petition for review sent out (with serv ice list). 2. GAO responds to the petition for review. 3. Administrative judge assigned. 4. Discovery. 5. Prehearing matters and motion practice. 6. Administrative judge responds to motions by orders served on the parties. 7. Fina l prehea ring briefs filed . 8. Final prehearing conference (status conference) he ld. 9. Hearing held. 10. Transcript of hearing received and distributed by PAR. 11 . Posthearing briefs fi led 30 days after transcript received by PAB. 12. Parties may request an opportunity to respond to posthearing briefs. 13. Deci sion issued by Administrative judge. 14. Motions to reopen and reconsider made. 15. Final decision issued by the full Board. 16. All cases, except those involving d iscrimination, are appealab le to the U.s. Court of Appe~ls for the Federal Circu it. 17. In discrimination cases, petitioner may fi le de novo in U.S. District Court (w here petitioner resides) or in the u.s. Court of Appeals for the Federa l Circuit. Page 13 Chapter 3 Appeals to .1 nd Adjudication by the Personnel Appeals Board Fi gures 3.1 to 3.3 illustrate the poss ible directions that an appea l to the Board ma y follow. Figure 3.1: Process of Case From Petition for Review to Termination of Appeal Petition for Review From Right to Appeal Letter Investigation by Office of Pe@oner to Office General Counsel Office of General of General Counsel Counsel to Petttioner Page 14 Chapter 3 Appeals 10 and Adjudication by (he Personnel Appeals Board Figure 3.2: Process of Case From Petition for Review to Final Board Member's Decision With No Appeal Petition for Review Right to Appeal From Investigation by Letter From PeMioner to Office Office of General Office of General General Counsel Counsel Counsel to Petitioner Petition for Review From Motions, Prehearing Presiding Petitioner to Responses. and Hearing the Board (Wrthin Conferenee(s) Member Decision Orders 20 days) Decision Becomes Final Page 15 Chapter 3 Appeals to and Adjudication by the Personnel Appeals Board Figure 3.3: Process of Case From Petition for Review to Judicial Review Right to Appeal Petition for Review Investigation by Letter From From Office of General Office of General Petitioner to Office Counsel Counsel of General Counsel to Petitioner Peti1ion for Review From Motions, Presiding Prehearing Petitioner to Responses, and Hearing Conterence(s) Member Decision the Board (Whhin Orders 20 days) Decision Becomes Final Motion to Response to Reopen and Full Board Motion for Reconsider to Decision Reconsideration Full Board EEO Appeals to • Other Appeals Federal District to the U.S. Court or U.S. Court or Court ot Appeals tor the Foderal Circuit Page 16 Chapter 3 Appeals to and Adiudication by the Personnel Appeals Board Individual Cases Filed The Board has jurisdiction of personnel appeals from the approximately 5,000 GAO employees and from applicants for GAO employment. From fiscal year 198 1 (the Board's first year in existen ce) through fiscal year 1989, a total of 93 individual cases were filed with OGC/PAB. Table 3.4 shows the disposition of these cases as of the end of fiscal year 1989. The distribution of matters at issue in these cases follows, although the total number of cases shown exceeds 93 because some cases are based on more than one issue: • EFO issues (52 cases), • rem ova I or suspension of 14 days or more (23 cases), • prohib ited personnel practices (3 cases), and • denial of within-grade increases (9 cases) . EEO Class Action Appeals Un like individual [EO cases, fEO class action appeals go through an adminis- trative hearing in the GAO complaints process. One requirement of that process is that legal counsel represent the class. Thus, when an EEO class appeals to the Board, the case does not go through OC.dPAB'S investigative process. Instead, it goes directly to the Board for review. The first two class act ion cases to be appealed to the Board both arose in fiscal year 1987. In each case, the class challenged GAO'S refusal to certify the class. In one case, the Board sustained GAO'S action during fiscal year 1987. No suit was filed in federal court to challenge that decision. In the second case, a Board decision durin g fisca l year 1988 sustained GAO'S rejec ti on of the class act ion. The class representative filed suit in federa l district court, where the matter was pending at the close of the fiscal year 1988-1989. Appeals to Federal Courts As already noted, an employee may lile a case that raises [[0 issues in a federal district court for tri al before a federal judge. In one case alleging age discrimination, the Board found no discrimination. Subsequently, the case was filed in district court, which also found no discrimination . The case was appealed to the court 01 appeals, where it was pending at the close of the fiscal year. Page 17 Chapter 3 Appeal s 10 and Adjudicalion by Ihe Personnel Appeals Board Figure 3.4: Disposition of Cases Flied With OCG/PAB FY 1981-FY 1989 EEO 93 Total Number 01 Cases Filed Class Action Appeals 80 70 60 50 40 30 20 I 50 10 o ~! /6"r;- ~ ~b ~ 0<: ~ I~ -.;8'I,J IJ:;;;g of- s I,§'> q: 'I"~ o ~ . .$ <fit J; q: ~ .;:j Page 18 Cha pter J Appeals to and Adjudicat ion by the Personnel Appeals Board Since PAB'S inception, seven of its decisions have been appealed to federa l courts of appeals.' Two of these appea ls were initiated by GAO and five by GAO employees. The courts have sustained Board decisions in five cases and reversed the Board in one case. Another appeal was withdrawn from the court before consideration. Significant Board Decisions During fisca l yea r 1989, the Board adjudicated significant cases involving attorneys' fees and age discrimination . The Board ruled that attorneys' fees may be awarded under the Federal Back Pay Act for the work of an employee's attorney in the GAO internal administrative grievance proced ure. The Board decided that, for the pur- poses of the Back Pay Act, GAO is an appropriate authority for the awa rding of attorneys' fees, and the Agency's denial of the emp loyee's within-grade salary increase is a personnel action as defined by the Back Pay Act, 5 U.s.c. sec. 5596 (Case No. 104-AF-17-88, June 21, 1989). The Board held that the Agency's closing an audit site and transferring an employee to a regional office did not constitute age discrimination nor was there sufficient ev idence to support the employee's allegations that GAO had transferred him to force his resignation (Case No.1 01-74-12-88, September 26, 1989). ~The Iwo most r(,Cl'nl c,)~(->S wNe ,1ffirmNl on appeal. Chenn<Jreddy v. GAO. No. a8-'1076 (O.c. Cir . Oec . 30. 1988) and CJrbOflf' v. GAO. No. 88·1 548 (lSI Cir. Mar. 20. 1989). Page 19 --- -------------------------------------------------------- Chapter 4 Personnel Appeals Board Administrative Activities During fiscal year 1989, the Board continued its activities designed to increase GAO employees' awareness of their employment rights and the Board's role in protecting those rights. Revised Board Regulations On June 6, 1989, the Federal Register published the PAS'S revised regula- tions. The major substantive and adm in istrative changes are summarized as follows: jurisdiction (sec. 28.2) ew Sec. 28.2 defines, in one place, Board jurisdiction over subject matter and parties. This new section does not change the scope of jurisdiction but merely consolidates in one place what had been found throughout various sections of the previous rules. General Definitions (sec. 28.3) New definitions were added in this section. The new terms are se lf-expla na- tory, except for the term "adm ini strat ive j udge," which is now substituted for the previous terms " presiding member" and "hearing officer" to refer to individua ls who conduct hearings for the Board. This term was adopted because of its familiarity to practitioners. Notice of Appeal Rights (sec. 28 .1O(a)) The former rule required GAO to advise employees regularly of their appeal rights to the Board to ensu re th at an emp loyee's procedu ral interests were not prejudiced by inadequacy oj notice. Section 28. 10(a) added a further requirement of proof of service in instances of adverse and performance- based actions to fu rther protect an employee's procedural interests. How- ever, no specific form of serv ice is spec ified. The onl y req uisite is that there be some form of service veri fyi ng that an emp loyee has been properly notified of his or her appeal rights to the Board. Filing a Charge With the General Counsel and Individual Charges in EED Cases (sec. 28. 11 (b)( 1) and sec. 29.98(b)(2)) The amendment to this sedion extends the required waiting period from the previous 80 days to 120 days. Thus, to file an EW comp laint with the General Counsel, an employee must first file a formal complaint of discrimi- nation with GAO. If GAO does not issue a final agency decision w ithin 120 days, the employee may then proceed to file an EEO complaint w ith the Office of the General Cou nsel. Page 20 Chapter 4 Personnel Appeals Board Administrative Activities Revocation, Amendment, or Waiver of Rules (sec. 28.16) In the past, the Board has followed a particular process for formulating, amending, or repealing a rule. Section 28.16 was created to clarify the Board's rule-making procedure . Internal Appeals ot" Board Employees (sec. 28.1 7(a )) This section out lines the grievance procedure for employees of the Board. Now, Board employees are to receive the same right to neutra l review in their adverse action, performance-based action, or EEO complaint as GAO employees receive when appealing to the Board. Filing a Petition for Review and Request tor Hearing With the Board (sec. 28.18(f) and sec. 28.21 (c)) Sections 28.18(0 and 28.2 1(c) changed the previous rule all owing either party to a proceeding a "right" to a hearing before the Board. Now, only employees (or appli ca nts in EEO cases) have a "right" to a hearing, whereas a request for a hearing by GAO is a matter of "privilege," and therefore within the discretionary powers of the administrative judge. However, anytime a request for a hearing by GAO is denied, there must be a statement of the basis for the denial. The purpose of this change was to make the right to a hearing consistent with the practice used in the executive branch. Hearings are held in unfair labor practice cases. Class Actions in E10 and Non-fEO Cases (sec. 28 .1 8(g) and sec. 28.97(e)) The language in these sections was changed to reflect the Board 's intention that the requirements oj the Federal Rules of Civil Procedure be used as a guide in both rFO and non-EEO class actions. Filing Time Limits (sec. 28.20(c), sec. 28.58(b), and sec. 28.82(J)) The time limit for responses to all pleadings has been extended from 10 to 20 days. The time limit for filing motions to correct a transcript has been extended from t 5 to 30 days of receipt oj the transcript. The time limit for filing an interlocutory appeal has been extended from 5 to 10 days. Prehearing Procedures and Motions Practice (sec. 28.21 (a)) Language was added to provide standards for the Board's use of its discre- tionary power to allow amendmen ts to a petition for review. Additionally, sec. 28.21 (d) makes it clear that the PAB General Counsel is not required to seek Board approval of a settlement reached during the investigative stage, thus making the sett lement agreement dispositive of the case. Page 21 Chapler 4 Personnel Appeals Board Administrative Activities Public Hearings (sec. 28.57(b)) This section was added to provide an exception to the rule that allows adm in istra tive judges, within their discretionary powers, to decide who shal l be excluded from a hearing. Now four individuals, as a matter of right, can attend all sessions of a hearing: (1) the GAO technical representative, (2) the GAO representative, (3) the petitioner, and (4) the petitioner's representa- tive. All other persons attending a hearing do so at the discretion of the administrative judge. Intervenor (sec. 28 .27) The language in former section 28.27, which allowed the PAS Office of General Counsel to intervene in a hearing as a matter of right, has been deleted. Instead, sections 28.12(1) and 28.27(f) provide for permissive intervention of the OCdPAB in appropriate circumstances in that office may need to participate in a case in which it is not already participating. Transcripts (sec. 28.53) Transcripts of the hearing are now available free of cost to the parties. However, a party requesting additional cop ies of the transcript will have to pay the additional cost for them. Scheduling the Hearing (sec. 28.55) This section has been changed to allow motions to postpone a hearing to be made orally when the parties agree on the need for a postponement. When the parties do not agree on the need for it. the motion for postpone- ment must be in writing and accompanied by an affidavit setting forth the reasons for the request. In both cases, postponement shall be granted only upon a showing of good cause. Public Hearings (sec. 28.57) This section reverses the prior rule that made Board hea rings closed to the public. Now, hearings are open unless there is an interest to be served by clo ing them to the public. Board Procedures for Non-Board Members to Conduct Hearings (sec. 28 .86) This section further refines the process by which a final Board decision would be produced when a non-Board member originally hears the case. However, this provision clearly does not delegate the Board 's decision- making authority, and cases heard by non-Board members result only in recommended decisions to the Board. Page 22 Chapter 4 Personnel Appeals Board Administrati ve Activities Board Procedures in Initial Decisions (sec. 28.87) This section expands the scope of the Board 's review power, allowing the Board to conduct a de novo rev iew of the law and facts for each in itia l decision that the Board is called upon to reconsider. Board Procedures-Judicial Review (sec. 28.90) This new section expands the Board's right to have lega l representation in any judicial proceeding that involves a Board decision or the interpretation of a Board ru le or of the GAO Personne l Act. Meetings With GAO Offices The Board continued its practice of meetings with GAO offices. During fiscal year 1989, the Board held meetings in Chicago, Dallas, Los Angeles, and Seattle. The Board's meeting format foll ows: 1. Employees initial ly view a videotape describing the Board 's fun ctions and procedures. 2. Board members make a presentation to the office staff on PAB'S organi- zation and functions and answer questions about its mission . 3. Board members meet with the management team . 4. Board members meet with employee group representatives. Publication of Boa rd Decisions and Decison Summaries During 1988 the Board initiated a project designed to give its decisions the widest possible circu lation. The project called for two publications. The first is a book of case summaries in alphabetica l order of every decision issued by the Board to date. Each summary identifies the part ies to the decision, the most significant legal issues involved in the case, the holding in the case, and the facts upon which the holding is based. This format was developed to allow readers who are not attorneys to easily understand the Board's decisions. At the end of the book is a topical index, also arranged alphabetically. The soft-cover book is printed in a format similar to that of the monthly index of the Comptroller General's decisions. The summaries book was completed in April 1989. Page 23 Chapter 4 Personnel Appeals Board Administrative Activities The companion publication is a hard-cover volume of the full text of all decisions issued by the Board since its inception. This publication is sim ilar to the standard case reports found in law libraries. A topic digest at the end of the book provides reference to the volume. This publication is expected to be in print during fiscal yea r 1990 or early 199 1. Page 24 Chapter 5 Information Investigations by the Office of General Counsel As discussed in chapter 3, OGCjPAB investigates almost all employee cases before they are appealed to the Board. In addition , OGC/PAS conducts se lf- init iated information investigations. When information comes to OGe/PAS'S attenti on suggesting that a prohibited personne l practice has occurred, is occurring, or will occur, it may investi- gate the matter regardless of whether an emp loyee appeal or complaint is fil ed. In most cases in which an individua l raises the allegation , such individual may remain anonymous. If OGC/PAS finds insufficien t ev idence of a prohibited personnel practice, it prepares a report to close the investiga- tion. The report is sent to the individual who brought the issue to OGe/PAS'S attention and to GAO management. If OGe/PAS finds ev idence of a prohibited personnel practice, three courses of act ion or a comb ination thereof are avai lable: seeking a stay of the personnel action, proposing corrective action, and/or proposing disciplinary action. Stay Proceedings When an employee requests that OGe/PAIl seek a stay of a personnel action, OGC/PAll conducts an investigation into the al legations. If it finds reasonable grounds to believe that the personnel action was taken, or will be taken, as a result of a prohibited personnel practice, OGe/PAB may request that the Board stay the personnel action. If a stay is granted, it may remain in effect pending further investigation by OGe/PAS or unti l the matter is litigated before the Board. If OGe/PAs finds no reasonable grounds to believe that a prohibited personnel practice is involved in the personnel action , the Board may not entertain a stay request. However, the employee may pursue an appeal to the Board, as described in chapter 3. Du ri ng fisca l year 1989, two employees req uested that OGC/PAS seek a stay of a personnel action. In both instances, OGe/PAB found insuffi cient evidence to support a sta y. Corrective Action Proceedings When OGC/PAS finds reasonable evidence to believe that a prohibited per- son nel practice exists, it may prepare a report for GAO management recom- mending corrective action. If GAO does not take the recommended correc- ti ve action, OGe/PAS may pet iti on the Board to order corrective actio n. A corrective action request that was filed in fiscal year 1988 was completed Page 2S Chapter 5 Information In\lest igations by the Office of General Cou nsel in fiscal year 1989. The investigation addressed allegations that attacked the legal va lidity and implementation of the performance appra isal system for eva luator and evaluator-related positions. In March 1989, the investigati on was closed. The investigation concluded that the appraisal system's implementation frequent ly resulted in performance appraisa ls that constituted prohibited personnel practices. While GAO disagreed with th at conclusion, it agreed to take most of the corrective actions recommended by OGe/PAB. Therefore, no further action was pursued by OGC/PAB. During fiscal year 1989, three corrective action requests were filed with OGe/PAB. One case alleged discrimination based on race in a series of promotions in certain staff offices. Two cases alleged that certai n promo- tions were made in vio lation of the regulations regarding competitive promotion. All three cases were closed due to insufficient evidence. Also during fiscal year 1989, a case was filed with aGe/PAS by two emp loyee counci ls. Though not technica ll y a correct ive action investiga tion , it re- sembled a corrective acti on proceeding. The case cha ll enged certain restrictions imposed by GAO on the formation of co ll ect ive bargaining units by GAO emp loyees. OGC/PAB found evidence to support the allegation, and the case was filed with the Board a few days after fisca l yea'r 1989 ended. Disciplinary Proceedings When OGC/PAB finds reasonab le evidence to believe that a prohibited per- sonnel practice exists, it may propose disciplinary action aga inst the em- ployee responsible for th e practice. Also, it may propose discipline for any GAO emp loyee engaging in prohib ited political activi ty. In either case, aGe/ PAB'S proposa l for discipline is presented to the Board and to the employee. After hea rin g the case, the Board decides whether discipline is warranted and what discipline is appropriate. No disciplinary proceedings were instituted during fisca l year 1989. Page 26 Chapter 6 EEO Oversight Activities The GAO Personnel Act gives the Board oversight responsibi lities for GAO'S equa l emp loyment opportu nity program. Oversight Study of Career Ladder Promotion Processes Based on an OGC/PAB study, the Board issued a report at the end of fisca l year 1987 on GAO'S career ladder promotion processes from 1980 through 1985. In reviewi ng the sta ti stics by gender and race in the five major ca reer ladders, the study identified statistical di sparities associated with race in eva luator ca reer ladder promotions, particularly in comparisons between black and white eva lu ators . In response to the draft report, GAO described positive actio ns it was pursu- ing regarding the caree r ladder promotion process. GAO stated that there was some evi dence to suggest that the conditions noted in the report might ha ve changed in recent yea rs. GAO was planning to make its own analysis to determine whether the dispariti es still ex isted. In May 1989, GAO deli vered its report on the 1986 and 1987 ca reer ladder promotion process. The data was eva luated, and the Board considered the report and all fo ll ow-up reviews. In Febru ary 1990, it notified GAO that it was termin ating a further analysis of th e ca reer ladder process because of GAO'S replacemen t of the ca reer ladder with pay for performa nce. The Board was shifting its focus to the latter. New Directions for Oversight During fiscal year 1988, the Boa rd reviewed its oversight mission and decided to put greater emphasis on this program. It shifted admin istrative respons ibili ty for this function from its OGdPAB to the new ly created Office of FFO Oversight, freeing up the OGC/PAB to perform other duties. At the same time, it crea ted an office whose sole function was oversight. The Oversight Office was charged with developing a program that would include rev iews of GAO'S EEO processes as well as a reporti ng system. Study of Equal Employment Opportunity for Disabled Employees In late fisca l year 1988, the Board notified GAO that its next HO overs ight review would be a functional, in-depth study of GAO'S equa l employment opportu nity for disabled applicants and employees. The study loo ks at what the law req uires concerning the di sabled and whether GAO has met the legal Page 27 Chaptet 6 EEO Oversight Activities requiremen ts. The study covers recruitment and hiring practices, an assess- ment of building accessibility, accommodation afforded the disabled, and affirmative action programs. During fiscal year 1989, investigative activity and evaluation was undertaken by the PAB Oversight Offi ce. The Oversight study , which is expected to be comp leted in fiscal year 1990, involves a review of GAO records; interviews with and/or questionnaires to employees and managers; on-site viewing of buildings and facilities; and, as necessary, out ide consultation . Page 28
Personnel Appeals Board: Annual Report, 1989
Published by the Government Accountability Office on 1990-01-02.
Below is a raw (and likely hideous) rendition of the original report. (PDF)