oversight

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)

                 PERSONNEL   APPEALS   BOARD




                                          i




GM           '
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                 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
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   ",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.




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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.




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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