§ 4136. — Foreign Service Grievance Board procedures.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 22USC4136]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 52--FOREIGN SERVICE
SUBCHAPTER XI--GRIEVANCES
Sec. 4136. Foreign Service Grievance 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 4007 or 4008 of this title, 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 cross-examine
witnesses at the hearing or by deposition and to serve
interrogatories upon another party and have such interrogatories
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.
(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. References in this
subchapter to the Board shall be considered to be references to a
panel or member of the Board where appropriate. All members of the
Board shall act as impartial individuals in considering grievances.
(8) If the Board determines that the Department is considering
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 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. 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.
(9) The Board may reconsider any decision upon presentation of
newly discovered or previously unavailable material evidence.
(Pub. L. 96-465, title I, Sec. 1106, Oct. 17, 1980, 94 Stat. 2145; Pub.
L. 101-167, title V, Sec. 586(a), Nov. 21, 1989, 103 Stat. 1252; Pub. L.
102-138, title I, Sec. 143(b), Oct. 28, 1991, 105 Stat. 668; Pub. L.
103-236, title I, Secs. 177(a), 181(a)(4)(B), Apr. 30, 1994, 108 Stat.
414, 417; Pub. L. 107-228, div. A, title III, Sec. 314(b), Sept. 30,
2002, 116 Stat. 1379.)
Amendments
2002--Par. (8). Pub. L. 107-228, in first sentence, struck out ``the
involuntary separation of the grievant,'' before ``disciplinary action''
and substituted ``grievant or'' for ``grievant, or'', and struck out
last sentence which read as follows: ``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 4010 of this
title or with respect to any action which would delay the separation of
an employee pursuant to a reduction in force conducted under section
4010a of this title.''
1994--Par. (8). Pub. L. 103-236, Sec. 181(a)(4)(B), inserted before
period at end ``or with respect to any action which would delay the
separation of an employee pursuant to a reduction in force conducted
under section 4010a of this title''.
Pub. L. 103-236, Sec. 177(a), substituted ``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 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.'' for ``until the Board has ruled upon the
grievance.''
1991--Par. (8). Pub. L. 102-138 substituted ``exercised his
authority under subsection (a)(3) of section 4010 of this title'' for
``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''.
1989--Par. (8). Pub. L. 101-167 inserted at end ``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 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.''
Section Referred to in Other Sections
This section is referred to in section 4010 of this title.
