SUPPLEMENTARY INFORMATION:

The Government Accountability Office Personnel Appeals Board is authorized by Congress, pursuant to 31 U.S.C. 751-755, to hear and decide cases brought by GAO employees concerning various personnel matters including adverse or performance-based actions, claims of discrimination, alleged prohibited personnel practices, and labor-management relations. The Board also exercises oversight authority over equal employment opportunity at the agency. The Board's procedural regulations applicable to GAO appear at 4 CFR parts 27 and 28. The Board is revising one section of these regulations to ensure consistency with current law.

The Board published section 28.2(c)(2) on November 23, 1993, effective January 1, 1994 (58 FR 61998, Nov. 23, 1993). The Board's regulation mirrored that of the Merit Systems Protection Board (MSPB) and conformed with 5 U.S.C. 7121. The regulations provided that bargaining unit employees could pursue prohibited personnel practice (PPP) claims at the Board or the MSPB, respectively, only if those claims involved discrimination, performance-based reduction in grade or removal, or an adverse action as defined in 5 U.S.C. 7512; an employee could choose either the administrative appeal route or the negotiated grievance procedure but not both. An individual with PPP claims beyond those specified in the PAB regulation or the earlier MSPB regulation did not have a choice of forum.

In 1994, Congress amended 5 U.S.C. 7121 by requiring that bargaining unit employees could elect to raise any PPP claim within the MSPB's jurisdiction either to the MSPB or through the parties' negotiated grievance procedures. Public Law 103-424, sec. 9(b), 108 Stat. 4361, 4365 (Oct. 29, 1994). The PAB now amends its regulations to ensure that GAO employees' rights are consistent with the statute. The amendment provides that a GAO employee who seeks to bring a PPP claim that is covered by a negotiated grievance procedure may elect either the negotiated grievance procedure or the procedure under PAB regulations. The special rule for such claims that involve allegations of discrimination remains unchanged.

The Board is making this amendment effective immediately upon publication, on an interim basis, to conform the regulation with the statutory requirement of 5 U.S.C. 7121. See GAO Employee Organization, IFPTE Local 1921 v. GAO, PAB Docket No. LMR 2001-02 (Aug. 24, 2011). At the same time, however, the Board is soliciting comments on the amendment. These comments will be considered fully before the final regulation is adopted.

On September 19, 2011, GAO issued revised Order 2351.1 regarding “Reduction in Force Procedures for the Government Accountability Office.” This Order was previously titled “Workforce Restructuring Procedures for the Government Accountability Office.” However, as stated in the revised Order, instead of “GAO-specific terms,” the Order is now adopting “governmentwide reduction-in-force terminology— i.e., reduction in force (RIF) is used rather than workforce restructuring.” In order to conform with GAO's revised Order, the Board is substituting “Reduction in Force” for the term “Workforce Restructuring Action,” in the definition section 28.3. It also is substituting Reduction in Force throughout part 28.

The Board is also making two additional nonsubstantive corrections to the regulations in the Table of Contents for part 28 and in section 28.113.

For the reasons set forth in the preamble, 4 CFR part 28 is amended as follows:

1. The authority citation for part 28 continues to read as follows:

Authority: 31 U.S.C. 753.

2. In part 28, revise all references to “Workforce Restructuring Action” to read “Reduction in Force”, and revise all references to “WRA” to read “RIF”.

3. Amend § 28.2 by revising paragraph (c)(2), redesignating paragraph (c)(3) as paragraph (c)(4), adding new paragraphs (c)(3) and (d) to read as follows:

4. In § 28.12, revise the section heading to read as follows:

5. In § 28.113, revise paragraph (a)(5) to read as follows: