B-222926.4 July 6, 1992

B-222926.4 July 6, 1992

CIVILIAN PERSONNEL Compensation Arbitration decisions GAO review Based on Cecil E. Riggs, et al., B-222926.3, April 23, 1992, 71 Comp.Gen. ____, which in turn was based on Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990), cert. denied, 111 S. Ct. 46 (1990), GAO has repealed 4 C.F.R. Part 22, Procedures for Decisions on Appropriated Fund Expenditures Which Are of Mutual Concern to Agencies and Labor Organizations. Any claims involving labor unions and agencies that arise outside of negotiated grievance procedures may be processed under 4 C.F.R. Part 31. GAO will continue to issue decisions to accountable officers and agency heads under 31 U.S.C. Sec. 3529 (1988) on matters outside the scope of negotiated grievance procedures. CIVILIAN PERSONNEL Compensation Arbitration decisions GAO review GAO has amended its claims regulations at 4 C.F.R. Part 30 to provide that it will not take jurisdiction over claims that are subject to negotiated grievance procedures contained in collective bargaining agreements entered into pursuant to the Civil Service Reform Act, 5 U.S.C. Sec. 7121(a)(1) (1988). The Act provides that these procedures shall be the exclusive means of resolving grievances falling within their coverage.

Billing Code

GENERAL ACCOUNTING OFFICE

4 CFR Parts 22 and 30

Procedures for Decisions on Appropriated Fund Expenditures Which Are of Mutual Concern to Agencies and Labor Organizations; Claims, General

AGENCY: General Accounting Office.

ACTION: Final Rule.

SUMMARY: The General Accounting Office is amending its regulations to provide that it will no longer issue decisions on federal employees claims concerning matters which are subject to negotiated grievance procedures under collective bargaining agreements. We believe that this action is required by recent judicial decisions interpreting the Civil Service Reform Act.

EFFECTIVE DATE: The amendments are effective as of (insert date of publication in the FEDERAL REGISTER), except with respect to cases now pending before GAO. Comments must be received by (insert date 60 days after effective date).

FOR FURTHER INFORMATION CONTACT: Robert L. Higgins, Associate General Counsel, U.S. General Accounting Office, Room 1830, 441 G Street, N.W., Washington, D.C. 20548, (202) 275-6410.

SUPPLEMENTARY INFORMATION: Judicial decisions have held that, under the comprehensive scheme created by Congress in the Civil Service Reform Act of 1978, matters which can be resolved through the negotiated grievance procedures should not be heard in another forum, except for matters specifically excluded from such procedures by the collective bargaining agreement or matters otherwise provided for by the Act. See Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir.), cert. denied, 111 S.Ct. 46 (1990); Harris v. United States, 841 F.2d 1097 (Fed. Cir. 1988); Adams v. United States, 20 Cl.Ct. 542 (1990); Adkins v. United States, 16 Cl.Ct. 294 (1989). These judicial decisions rely on the so-called "exclusivity" provision of the Civil Service Reform Act, 5 U.S.C. 7121(a)(1) (1988), which provides that collective bargaining agreements shall include procedures for the settlement of grievances, and, with certain exceptions, these procedures shall be the exclusive procedures for resolving grievances which fall within their coverage.

GAO decisions and our regulations in 4 CFR Part 22, which pre-dated the judicial decisions cited above, identified circumstances in which we would exercise jurisdiction over claims involving matters subject to negotiated grievance procedures, pursuant to our authority in 31 U.S.C. 3529 to issue decisions to federal agency heads and accountable officers and our general claims settlement authority in 31 U.S.C. 3702. However, in our recent decision Cecil E. Riggs, et al., B-222926.3, we held that the reasoning of the judicial decisions cited above applies equally with respect to GAO's authority under 31 U.S.C. 3702 and 3529. Therefore, Riggs overruled our prior decisions and recognized that changes also were required in our regulations.

Accordingly, GAO's regulations at 4 CFR Part 22, which provided procedures governing GAO decisions on matters of mutual concern to agencies and labor organizations, are being repealed. We are also amending our regulations at 4 CFR Part 30 to expressly provide that we will not take jurisdiction over claims that are subject to negotiated grievance procedures. We will continue to take jurisdiction over federal employee claims which are not subject to negotiated grievance procedures.

List of Subjects in 4 CFR Part 22

Purpose and scope, Who may request a decision, Contents of a request for a decision, Service, Request for an advisory opinion, Time for issuance of decisions and advisory opinions, Deference to grievance and arbitration procedures established pursuant to 5 U.S.C. Chapter 71, Discretion to decline issuance of a decision, Distribution of decisions.

List of Subjects in 4 CFR Part 30

Coverage of regulations in Subchapter C.

For the reasons stated above, 4 CFR Part 22 is repealed.

4 CFR Part 30 is amended as follows:

PART 30--SCOPE OF SUBCHAPTER

Section 30.1 is amended by changing subsection (b) to subsection (c), and adding a new subsection (b) as follows:

(b) Claims concerning matters which are subject to negotiated grievance procedures under collective bargaining agreements entered into pursuant to 5 U.S.C. 7121(a);