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action sha grievance penden expenses, or allove grievant of al

priate. All members of the Board shall act as impartial individuals in considering grievances.

(8) If the Board determines that the Department is considering the involuntary separation of the grievant, disciplinary action against the grievant, or recovery from the grievant of alleged overpayment of salary, expenses, or allowances, which is related to a grievance pending before the Board and that such action should be suspended, the Department shall suspend such action until the date which is one year after such determination or until the Board has ruled upon the grievance, whichever comes first. The Board shall extend the one-year limitation under the preceding sentence and the Department shall continue to suspend such action, if the Board determines that the agency or the Board is responsible for the delay in the resolution of the grievance. The Board may also extend the 1year limit if it determines that the delay is due to the complexity of the case, the unavailability of witnesses or to circumstances beyond the control of the agency, the Board or the grievant. 309 Notwithstanding such suspension of action, the head of the agency concerned or a chief of mission or principal officer may exclude the grievant from official premises or from the performance of specified functions when such exclusion is determined in writing to be essential to the functioning of the post or office to which the grievant is assigned. Notwithstanding the first sentence of this paragraph, the Board's authority to suspend such action shall not extend to instances where the Secretary, or his designee, has exercised his authority under subsection (a)(3) of section 610 310 or with respect to any action which would delay the separation of an employee pursuant to a reduction in force conducted under section 611.311

(9) The Board may reconsider any decision upon presentation of newly discovered or previously unavailable material evi

dence. Sec. 1107.312 BOARD DECISIONS.—a) Upon completion of its proceedings, the Board shall expeditiously decide the grievance on the basis of the record of proceedings. In each case the decision of the

11

300 Sec. 177(a) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103–236; 108 Stat. 414), struck out "until the Board has ruled upon the grievance.", and inserted in lieu thereof "until the date which is one year afer such determination or until the Board has ruled upon the grievance, whichever comes first. The Board shall extend the oneyear limitation under the preceding sentence and the Department shall continue to suspend such action, if the Board determines that the agency or the Board is responsible for the delay in the resolution of the grievance. The Board may also extend the 1-year limit if it determines that the delay is due to the complexity of the case, the unavailability of witnesses or to circumstances beyond the control of the agency, the Board or the grievant.".

310 Sec. 143(b) of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Public Law 102–138; 105 Stal 668), struck out "determined that there is reasonable cause to believe that a grievant has committed a job-related crime for which a sentence of imprisonment may be imposed and has taken action to suspend the grievant without pay pending a final resolution of the underlying matter.", and inserted in lieu thereof "exercised his authority under subsection (aX3) of section 610.". This last sentence had originally been added by sec. 586(a) of the Foreign Relations, Export Financing, and Related Programs Appropriations Act, 1990 (Public Law 101167; 103 Stat. 1252).

311 Sec. 181(aX4XB) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103–236; 108 Stat. 417), inserted "or with respect to any action which would delay the separation of an employee pursuant to a reduction in force conducted under section 611" at the end of para. (8).

31222 U.S.C. 4137.

SEC. 1106.308 BOARD PROCEDURES.—The Board may adopt regulations concerning its organization and procedures. Such regulations shall include provision for the following:

(1) The Board shall conduct a hearing at the request of a grievant in any case which involves

(A) disciplinary action or the retirement of a grievant from the Service under section 607 or 608, or

(B) issues which, in the judgment of the Board, can best be resolved by a hearing or presentation of oral argument. (2) The grievant, the representatives of the grievant, the exclusive representative (if the grievant is a member of the bargaining unit represented by the exclusive representative), and the representatives of the Department are entitled to be present at the hearing. The Board may, after considering the views of the parties and any other individuals connected with the grievance, decide that a hearing should be open to others. Testimony at a hearing shall be given under oath, which any Board member or individual designated by the Board shall have authority to administer.

(3) Each party (including an exclusive representative appearing in the proceedings) shall be entitled to examine and crossexamine witnesses at the hearing or by deposition and to serve interrogatories upon another party and have such interrog. atories answered by the other party unless the Board finds such interrogatory irrelevant, immaterial, or unduly repetitive. Upon request of the Board, or upon a request of the grievant deemed relevant and material by the Board, an agency shall promptly make available at the hearing or by deposition any witness under its control, supervision, or responsibility, except that if the Board determines that the presence of such witness at the hearing is required for just resolution of the grievance, then the witness shall be made available at the hearing, with necessary costs and travel expenses paid by the Department.

(4) During any hearing held by the Board, any oral or documentary evidence may be received, but the Board shall exclude any irrelevant, immaterial, or unduly repetitious evidence, as determined under section 556 of title 5, United States Code.

(5) A verbatim transcript shall be made of any hearing and shall be part of the record of proceedings.

(6) In those grievances in which the Board does not hold a hearing, the Board shall afford to each party the opportunity to review and to supplement, by written submissions, the record of proceedings prior to the decision by the Board. The decision of the Board shall be based exclusively on the record of proceedings.

(7) The Board may act by or through panels or individual members designated by the Chairperson, except that hearings within the continental United States shall be held by panels of at least three members unless the parties agree otherwise. Ref. erences in this chapter to the Board shall be considered to be references to a panel or member of the Board where appro

208 22 U.S.C. 4136.

priate. All members of the Board shall act as impartial individuals in considering grievances.

(8) If the Board determines that the Department is considering the involuntary separation of the grievant, disciplinary action against the grievant, or recovery from the grievant of alleged overpayment of salary, expenses, or allowances, which is related to a grievance pending before the Board and that such action should be suspended, the Department shall suspend such action until the date which is one year after such determination or until the Board has ruled upon the grievance, whichever comes first. The Board shall extend the one-year limitation under the preceding sentence and the Department shall continue to suspend such action, if the Board determines that the agency or the Board is responsible for the delay in the resolution of the grievance. The Board may also extend the 1year limit if it determines that the delay is due to the complexity of the case, the unavailability of witnesses or to circumstances beyond the control of the agency, the Board or the grievant.309 Notwithstanding such suspension of action, the head of the agency concerned or a chief of mission or principal officer may exclude the grievant from official premises or from the performance of specified functions when such exclusion is determined in writing to be essential to the functioning of the post or office to which the grievant is assigned. Notwithstanding the first sentence of this paragraph, the Board's authority to suspend such action shall not extend to instances where the Secretary, or his designee, has exercised his authority under subsection (a)(3) of section 610 310 or with respect to any action which would delay the separation of an employee pursuant to a reduction in force conducted under section 611.311

(9) The Board may reconsider any decision upon presentation of newly discovered or previously unavailable material evi

dence. SEC. 1107.312 BOARD DECISIONS.—a) Upon completion of its proceedings, the Board shall expeditiously decide the grievance on the basis of the record of proceedings. In each case the decision of the

300 Sec. 177(a) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103–236; 108 Stat. 414), struck out "until the Board has ruled upon the grievance.”, and inserted in lieu thereof "until the date which is one year aller such determination or until the Board has ruled upon the grievance, whichever comes first. The Board shall extend the oneyear limitation under the preceding sentence and the Department shall continue to suspend such action, if the Board determines that the agency or the Board is responsible for the delay in the resolution of the grievance. The Board may also extend the 1-year limit if it determines that the delay is due to the complexity of the case, the unavailability of witnesses or to circumstances beyond the control of the agency, the Board or the grievant.".

310 Sec. 143(b) of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Public Law 102-138; 105 Stal. 668), struck out "determined that there is reasonable cause to believe that a grievant has committed a job-related crime for which a sentence of imprisonment may be imposed and has taken action to suspend the grievant without pay pending a final resolution of the underlying matter.", and inserted in lieu thereof "exercised his authority under subsection (aX3) of section 610.". This last sentence had originally been added by sec. 586(a) of the Foreign Relations, Export Financing, and Related Programs Appropriations Act, 1990 (Public Law 101167; 103 Śtat. 1252).

311 Sec. 181(aX4XB) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103-236: 108 Slat. 417), inserted "or with respect to any action which would delay the separation of an employee pursuant to a reduction in force conducted under section 611" at the end of para. (8).

31322 U.S.C. 4137.

(7)315 Tholation of a law much), apply the suportunity C

(f) 315 The Board shall, with respect to any grievance based on an alleged violation of a law, rule, regulation, or policy directive referred to in section 1101(aX1)(H), apply the substantive law that would be applied by the Equal Employment Opportunity Commission if a charge or claim alleging discrimination under such law, rule, regulation, or policy directive had been filed with the commission.

SEC. 1108.316 ACCESS TO RECORDS.-(a) If a grievant is denied access to any agency record prior to or during the consideration of the grievance by the Department, the grievant may raise such denial before the Board in connection with the grievance.

(b) In considering a grievance, the Board shall have access to any agency record as follows:

(1)(A) The Board shall request access to any agency record which the grievant requested to substantiate the grievance if the Board determines that such record may be relevant and material to the grievance.

(B) The Board may request access to any other agency record which the Board determines may be relevant and material to the grievance.

(2) Any agency shall make available to the Board any agency record requested under paragraph (1) unless the head or deputy head of such agency personally certifies in writing to the Board that disclosure of the record to the Board and the grievant would adversely affect the foreign policy or national security of the United States or that such disclosure is prohibited by law. If such a certification is made with respect to any record, the agency shall supply to the Board a summary or extract of such record unless the reasons specified in the preced

ing sentence preclude such a summary or extract. (c) If the Board determines that an agency record, or a summary or extract of a record, made available to the Board under subsection (b) is relevant and material to the grievance, the agency concerned shall make such record, summary, or extract, as the case may be, available to the grievant.

(d) In considering a grievance, the Board may take into account the fact that the grievant or the Board was denied access to an agency record which the Board determines is or may be relevant and material to the grievance.

(e) The grievant in any case decided by the Board shall have access to the record of the proceedings and the decision of the Board.

Sec. 1109,317 RELATIONSHIP TO OTHER REMEDIES.(a)(1) 318 A grievant may not file a grievance with the Board if the grievant

318 Sec. 1510) of the Forrign Relations Authonzation Act, Fiscal Years 1992 and 1993 (Public Law 104-138 106 Stal 673) added subser in

Subsex. ( of sec. 153 further provided that the amendments made by this section shall not apply with spart to any grevance within the meaning av sertion 1101 of the Act, as amended by this section) ansing before the date of enactment of this Act. *31** VSC 4138 30172 USC 4139

31* Sa. 150idn of the Fontgn Relations Authorization Act, Fiscal Years 1992 and 1993 (Pub he Law 102-138 108 Stat 673) added per designation (1) and designated subsec. (b) as par. (24 In newly designated gr. (?! it further struck subseron (ay and inserted "paragraph (1)"; struck under this serian and inserted under this subsection, and added a new par. (3).

Subser in a se 183 norther provided that the amendments made by this section shall not apply with muspert to any onerare within the meaning of sertion 101 of the Act, as amended by this section ansa

the date of enactment of this Ack'

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has formally requested, prior to filing a grievance, that the matter or matters which are the basis of the grievance be considered or resolved and relief be provided under another provision of law, regulation, or Executive order, other than under section 1214 or 1221 319 of title 5, United States Code, and the matter has been carried to final decision under such provision on its merits or is still under consideration.

(2) If a grievant is not prohibited from filing a grievance under paragraph (1), the grievant may file with the Board a grievance which is also eligible for consideration, resolution, and relief under chapter 12 of title 5, United States Code, or a regulation or Executive order other than under this chapter. An election of remedies under this subsection shall be final upon the acceptance of jurisdiction by the Board.

(3) 318 This subsection shall not apply to any grievance with respect to which subsection (b) applies.

(b) 320 (1) With respect to a grievance based on an alleged violation of a law, rule, regulation, or policy directive referred to in section 1101(a)(1)(H), a grievant may either

(A) file a grievance under this chapter, or

(B) initiate in writing a proceeding under another provision

of law, regulation, or Executive order that authorizes relief, but not both.

(2) A grievant shall be considered to have exercised the option under paragraph (1) as soon as the grievant timely either

(A) files a grievance under this chapter, or

(B) initiates in writing a proceeding under such other provision of law, regulation, or Executive order. SEC. 1110.321 JUDICIAL REVIEW.-a) 322 Any aggrieved party may obtain judicial review of a final action of the Secretary or the Board on any grievance in the district courts of the United States in accordance with the standards set forth in chapter 7 of title 5, United States Code, if the request for judicial review is filed not later than 180 days after the final action of the Secretary or the Board (or in the case of an aggrieved party who is posted abroad at the time of the final action of the Secretary or the Board, if the request for judicial review is filed not later than 180 days after the aggrieved party's return to the United States). 323 Section 706 of title 5, Unit

319 Sec. 9 of the Whistleblower Protection Act (Public Law 101-12; 103 Stat. 35) made a conforming amendment at this point, striking reference to section 1206 and inserting reference to section 1214 or 1221.

220 Sec. 153(0X1XC) of the Foreign Relations Authorization Act, Fiscal Yeans 1992 and 1993 (Public Law 102–138; 105 Slat. 674), added subsec. (b).

Subsec. (1) of sec. 153 further provided that "The amendments made by this section shall not apply with respect to any grievance (within the meaning of section 1101 of the Act, as amended by this section) arising before the date of enactment of this Act.".

22122 U.S.C. 4140.

za Sec. 153(e) of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (Public Law 102-138; 105 Stat. 674), added subsec. designation (a); and added a new subsec. (b).

Sec. 153(eX2) of that Act also added the third sentence in subsec. (a).

Subsec. (1) of sec. 153 further provided that "The amendments made by this section shall not apply with respect to any grievance (within the meaning of section 1101 of the Act, as amended by this section) arising before the date of enactment of this Act.”.

223 Sec. 177(b) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103–236; 108 Stat. 414), inserted “, is the request for judicial review is filed not later than 180 days after the final action of the Secretary or the Board (or in the case of an aggrieved party who is posted abroad at the time of the final action of the Secretary or the Board, if the

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