45 C.F.R. PART 1211—VOLUNTEER GRIEVANCE PROCEDURES
Title 45 - Public Welfare
Authority: Secs. 104(d), 402(14), 420, Pub. L. 93–113, 87 Stat. 398, 407, and 414.
Source: 45 FR 39271, June 10, 1980, unless otherwise noted.
This part establishes procedures under which certain volunteers enrolled under Pub. L. 93–113 may present and obtain resolution of grievances. This part applies to all volunteers enrolled under part A of title I of the Domestic Volunteer Service Act of 1973, as amended, Pub. L. 93–113, (42 U.S.C. 4951 et seq.). (a) Volunteer means a person enrolled and currently serving as a full-time volunteer under part A of title I of the Domestic Volunteer Service Act of 1973. For the purpose of this part, a volunteer whose service has terminated shall be deemed to be a volunteer for a period of 90 days thereafter. (b) Grievance means a matter arising out of, and directly affecting, the volunteer's work situation, or a violation of those regulations governing the terms and conditions of service resulting in the denial or infringement of a right or benefit to the grieving volunteer. Terms and conditions of service refer to those rights and privileges accorded the volunteer either through statute, Agency regulation, or Agency policy. (1) The relief requested must be directed toward the correction of the matter involving the affected individual volunteer or the affected group of volunteers and may request the revision of existing policies and procedures to ensure against similar occurrences in the future. Requests for relief by more than one volunteer arising from a common cause within one region may be treated as a single grievance. The following are examples of grievable matters: (i) A volunteer is assigned to an area of harsh climate where special clothing is necessary and not already possessed by the volunteer. A request for a special allowance for such clothing is arbitrarily refused. (ii) A volunteer submits a request for reimbursement for transportation costs incurred while on authorized emergency leave which is denied. (iii) The project sponsor fails to provide adequate support to the volunteer necessary for that volunteer to perform the assigned work, such as the sponsor's failure to provide materials to the volunteer which is necessary for the performance of the volunteer's work. (c) State Program Officer means that ACTION official who is directly responsible at the first level for the project in which the volunteer is serving. (d) Sponsor means a public or private nonprofit agency to which ACTION has assigned volunteers. (e) Grievance Examiner or Examiner means a person having the qualifications described in Appendix A who is appointed to conduct an inquiry or hearing with respect to a grievance. (f) National VISTA Grants Program means a program operated under part A, title I of the Domestic Volunteer Service Act in which ACTION awards a grant to a national grantee to operate a VISTA Volunteer program on a national or multi-regional basis. (g) Local component means a local office or project affiliate of a national grantee which has VISTA Volunteers assigned to it under the National VISTA Grants Program. (h) The Act means the Domestic Volunteer Service Act of 1973, Pub. L. 93–113, (42 U.S.C. 4951 et seq.), as amended. It is ACTION's policy to provide volunteers the widest latitude to present their grievances and concerns to appropriate officials of ACTION and of sponsoring organizations. This regulation is designed to assure that the rights of individual volunteers are recognized and to provide formal ways for them to seek redress with confidence that they will obtain just treatment. Matters not within the definition of a grievance as defined in §1211.1–3(b) are not eligible for processing under this procedure. The following are specific examples of excluded areas and are not intended as a complete listing of the matters excluded by this part: (a) The establishment of a volunteer project, its continuance or discontinuance, the number of volunteers assigned to it, increases or decreases in the level of support provided to a project, suspension or termination of a project, or selection and retention of project staff. (b) Matters for which a separate administrative procedure is provided. (c) The content of any law, published rule, regulation, policy or procedure. (d) Matters which are, by law, subject to final administrative review outside ACTION. (e) Actions taken in compliance with the terms of a contract, grant, or other agreement. (f) The internal management of the ACTION Agency unless such management is specifically shown to individually and directly affect the volunteer's work situation or the terms and conditions of service as defined in §1211.1–3(b). The initiation of a grievance shall not be construed as reflecting on a volunteer's standing, performance or desirability as a volunteer. ACTION intends that each supervisor and sponsor, as well as ACTION and its employees, maintain a healthy atmosphere in which a volunteer can speak freely and have frank discussions of problems. A volunteer who initiates a grievance shall not as a result of such an action be subjected to restraint, interference, coercion, discrimination or reprisal. A volunteer may be accompanied, represented, and advised by a representative of the volunteer's own choice at any stage of the proceeding. The volunteer shall designate his or her representative in writing. A person chosen by the volunteer must be willing to act as representative and have no conflict between his or her position and the subject matter of the grievance. (a) Both a volunteer and a volunteer's representative, if another volunteer or an employee of ACTION, must be given a reasonable amount of administrative leave from their assignments to present a grievance or appeal. (b) ACTION will not pay travel expense or per diem travel allowances for either a volunteer or his or her representative in connection with the preparation of a grievance or appeal, except in connection with a hearing and the examination of the grievant file as provided in §1211.1–12(c). (a) A volunteer is entitled to review any material in his or her official volunteer folder and any relevant Agency documents to the extent permitted by the Freedom of Information Act and the Privacy Act, as amended, 5 U.S.C. 552, U.S.C. 552a. Examples of documents which may be withheld from volunteers include references obtained under a pledge of confidentiality, official volunteer folders of other volunteers, and privileged intra-agency documents. (b) A volunteer may review relevant documents in the possession of a sponsor to the extent such documents are disclosable under the Freedom of Information Act and Privacy Act. (a) Initiation of grievance. A volunteer may initiate a grievance within 15 calendar days after the event giving rise to the grievance occurs, or within 15 calendar days after becoming aware of the event. A grievance arising out of a continuing condition or practice that individually affects the volunteer may be brought at any time. A volunteer initiates a grievance by presenting it in writing to the chief executive officer of the sponsor, or the representative designated to receive grievances from volunteers. The designated representative may not be the immediate supervisor of volunteers assigned to the sponsor. The chief executive officer of the sponsor or the designated representative shall respond in writing to the grievance within five (5) working days after receipt. The chief executive officer or designee may not refuse to respond to a complaint on the basis that it is not a grievance as defined in §1211.1–3(b), or that it is excluded from coverage under §1211.1–5, but may, in the written response, refuse to grant the relief requested on either of these grounds. If the grievance involves a matter over which the sponsor has no control, or if the chief executive officer is the immediate supervisor of the volunteer, the procedures described in this section may be omitted, and the volunteer may present the grievance in writing directly to the State Director or designee as described in paragraph (b) of this section within the time limits specified in this paragraph (a). (b) Consideration by ACTION State Director or designee. If the matter is not resolved to the volunteer's satisfaction by the sponsor's chief executive officer, the volunteer may submit the grievance in writing to the ACTION State Director or designee within five (5) working days after receipt of the decision of the sponsor's chief executive officer. The State Director or designee may not refuse to receive a complaint, even if he or she believes it does not constitute a grievance, and shall respond to it in writing within five (5) working days after receipt. The response may indicate that the matter is not grievable. If the State Director or designee fails to meet the time limit for response, the volunteer may initiate a formal grievance. (c) Discussion. All parties to the informal grievance procedure must be prepared to participate in full discussion of the grievance, and to permit the participation of others who may have knowledge of the circumstances of the grievance in the discussion. State Program Officers and other ACTION employees may participate in discussions and provide guidance with respect to ACTION policies and procedures, at the request of any party, even prior to submission of a grievance to them. (d) Sponsor grievance procedure. A sponsor may substitute its own grievance procedure for the procedure described in paragraph (a) of this section. Any such procedure must provide the volunteer with an opportunity to present a grievance at least as comprehensive as that contained in this section, must meet the time limits of this section, and must be provided in writing to all volunteers. In order to utilize its own grievance procedures, the sponsor must obtain approval of the procedure from the ACTION State Director and file a copy of this approved procedure with the State Office. (a) Submission of grievance to Regional Director. If a volunteer is dissatisfied with the response of the State Director or designee required by §1211.1–10(b), he or she may present the grievance in writing to the Regional Director. To be eligible for the formal grievance procedure, the volunteer must have completed action under the informal procedure contained in §1211.1–10 or have alleged that the State Director or designee exceeded the time specified for response. (b) Contents of grievance. The volunteer's grievance must be in writing, contain sufficient detail to identify the subject matter of the grievance, specify the relief requested, and be signed by the volunteer or a person designated in writing by the volunteer to be the representative for the purpose of the grievance. (c) Time limit. The volunteer must submit the grievance to the Regional Director or designee no later than 15 calendar days after receipt of the informal response by the State Director or designee. If no response is received by the volunteer 15 calendar days after the grievance is received by the State Director or designee, the volunteer may submit the grievance directly to the Regional Director or designee for consideration. (d) Within ten (10) working days of the receipt of the grievance, the Regional Director or designee shall, in whole or in part, either decide it on its merits or reject the grievance. A grievance may be rejected, in whole or in part, for the following reasons: (1) It was not filed within the time limit specified in paragraph (c) of this section, or (2) The grievance consists of matters not contained within the definition of a grievance. (e) Rejection of a grievance by the Regional Director or designee may be appealed by the volunteer within ten (10) days of receipt of the notice to the Office of General Counsel. The Office shall immediately request the grievance file from the Regional Director and, within five (5) working days of receipt of it, determine the appropriateness of the rejection. If the grievance was properly rejected by the Regional Director, the Office shall so notify the volunteer of its opinion and the reasons supporting it, and that such rejection is the final Agency decision in the matter. If the Office determines that the grievance was improperly rejected, it shall return the grievance to the Regional Director for a determination on its merits by the Regional Director. Within ten (10) working days of such notification and receipt of the grievance file, the Regional Director or designee shall notify the volunteer in writing of the decision on the merits and specify the grounds for the decision and of the volunteer's right to appeal. (f) Time Limit. If a volunteer is dissatisfied with the decision of the Regional Director or designee on the merits of the grievance, he or she shall notify the Regional Director within five (5) calendar days from receipt of the decision and request the appointment of an Examiner. If the volunteer receives no response from the Regional Director or Office of General Counsel as required by paragraphs (d) and (e) of this section within five (5) calendar days after the prescribed time limits, the volunteer may request in writing that the Regional Director appoint a Grievance Examiner. Upon receipt of this request, the Regional Director or designee shall appoint within five (5) calendar days an Examiner who shall possess the qualifications specified in Appendix A to this part. (a) Scope of investigation. The Examiner shall conduct an investigation of a nature and scope appropriate to the issues involved in the grievance. Unless waived by the volunteer, a hearing must be held if the Examiner finds that the grievance involves disputed questions of fact that go to the heart of the agency determination. Only those facts found necessary by the Examiner on which to base his or her findings go to the heart of the Agency determination. If the grievance does not involve such disputed questions of fact, or if the volunteer waives a hearing, the Examiner need not hold a hearing but must provide the parties an opportunity for presentation of their respective positions. At the Examiner's discretion, the investigation may include: (1) The securing of documentary evidence, (2) Personal interviews, including telephone interviews, (3) Group meetings, (4) Affidavits, written interrogatories or depositions. (b) Conduct of Hearing. If a hearing is held, the conduct of the hearing and production of witnesses shall conform with the following requirements: (1) The hearing shall be held at a time and place determined by the Examiner who shall consider the convenience of parties and witnesses and expense to the Government in making his or her decision. (2) Attendance at the hearing will be limited to persons determined by the Examiner to have a direct connection with the grievance. If requested by the volunteer, the Examiner must open the hearing to the public. (3) The hearing shall be conducted so as to bring out pertinent facts, including the production of pertinent records. (4) Formal rules of evidence shall not be applied strictly, but the Examiner may exclude irrelevant or unduly repetitious testimony or evidence. (5) Decisions on the admissibility of evidence or testimony shall be made by the Examiner. (6) Testimony shall be under oath or affirmation, administered by the Examiner. (7) The Examiner shall give the parties an opportunity to present oral and written testimony that is relevant and material, and to cross-examine witnesses who testify. (8) The Examiner may exclude any person from the hearing for conduct that obstructs the hearing. (c) Witnesses. (1) All parties are entitled to produce witnesses. (2) Volunteers, employees of a sponsor, and employees of ACTION shall be made available as witnesses when requested by the Examiner. The Examiner may request witnesses on his or her initiative. Parties shall furnish to the Examiner and to opposing parties a list of proposed witnesses, and an explanation of what the testimony of each is expected to show, at least ten (10) calendar days before the date of the hearing. The Examiner may waive the time limit in appropriate circumstances. (3) Employees of ACTION shall remain in a duty status during the time they are made available as witnesses. (4) Volunteers, employees and any other persons who serve as witnesses shall be free from coercion, discrimination or reprisal for presenting their testimony. (5) The Examiner must authorize payment of travel expenses and per diem at standard Government rates for the volunteer and the representative to attend the hearing. Payment of travel expenses and per diem at standard Government rates for other witnesses to attend the hearing are authorized only after the Examiner determines that the required testimony cannot be satisfactorily obtained by affidavit, written interrogatories, or deposition, at a lesser cost. (d) Recording of Hearing. A grievant may make a recording of the hearing at his or her own expense if no verbatim transcript is made. Such a recording is in no way to be treated as the official transcript of the hearing. (e) Report of Hearing. The Examiner shall normally prepare a written summary of the hearing which shall include all documents and exhibits submitted to and accepted by the Examiner during the course of the grievance. An Examiner may require a verbatim transcript if he or she determines that the grievance is so complex as to require such a transcript. If the hearing is reported verbatim, the Examiner shall make the transcript a part of the record of the proceedings. If the hearing is not reported verbatim, a suitable summary of pertinent portions of the testimony shall be made part of the record of proceedings. In such cases, the summary together with exhibits shall constitute the report of the hearing. The parties are entitled to submit written exceptions to any part of the summary, and these written exceptions shall be made part of the record of proceedings. (a) Preparation and content. The Examiner shall establish a grievance file containing all documents related to the grievance, including statements of witnesses, records or copies thereof, and the report of the hearing when a hearing was held. The file shall also contain the Examiner's report of findings and recommendations. (b) Review by volunteer. On completion of the inquiry, the Examiner shall make the grievance file available to the volunteer and the representative, if any, for review and comment. Their coments, if any, shall be submitted to the Examiner within five (5) calendar days after the file is made available and shall be included in the file. (c) Examiner's report. After the volunteer has been given an opportunity to review the grievance file, the Examiner shall submit the complete grievance file to the Director of VISTA. The Director of VISTA or designee shall issue a written decision on the appeal to the volunteer within ten (10) working days after receipt of the appeal file. The decision shall include a statement of the basis for the determination, and shall be the final Agency decision. All grievance appeal files shall be retained by the Director of VISTA after the grievance has been settled, or a final decision has been made and implemented. No part of a grievance or appeal file may be made part of, or included in, a volunteer's official folder. The grievance procedure for National VISTA Grant Volunteers shall be the same as that provided in this part with the following substitutions of officials: (a) Informal grievance procedure: (1) The initiation of an informal grievance for a National Grant VISTA, see §1211.1–10, shall normally be to the sponsor of the local component. If the grievance involves a matter solely within the control of the ACTION State Office, the volunteer may present the grievance to the State Director or designee in lieu of the local component sponsor. (2) If the volunteer is not satisfied with the response of the appropriate official (sponsor of local component, or State Director or designee), the volunteer may submit the grievance to the chief executive of the national grantee. (b) Formal grievance procedure: The Chief, VISTA Program Development Branch or designee shall replace the Regional Director as the official in §1211.1–11. An examiner must meet the requirements specified in either paragraph (1), (2), (3), or (4) of this appendix: (1) Current or former federal employees now or formerly in grade GS–12 or equivalent, or above who have: (a) At least four (4) years of progressively responsible experience in administrative, managerial, professional, investigative, or technical work which has demonstrated the possession of: (i) The personal attributes essential to the effective performance of the duties of an Examiner, including integrity, discretion, reliability, objectivity, impartiality, resourcefulness, and emotional stability. (ii) A high degree of ability to: Identify and select appropriate sources of information; collect, organize, analyze, and evaluate information; and arrive at sound conclusions on the basis of that information; Analyze situations; make an objective and logical determinationn of the pertinent facts; evaluate the facts; and develop practicable recommendations or decisions on the basis of facts; Recognize the causes of complex problems and apply mature judgment in assessing the practical implications of alternative solutions to those problems; Interpret and apply regulations and other complex written material; Communicate effectively, orally and in writing, including the ability to prepare clear and concise written reports; and Deal effectively with individuals and groups, including the ability to gain the cooperation and confidence of others. (iii) A good working knowledge of: The relationship between volunteer administration and overall management concerns; and The principles, systems, methods, and administrative machinery for accomplishing the work of an organization. (2) Designation as an arbitrator on a panel of arbitrators maintained by either the Federal Mediation and Conciliation Service or the American Arbitration Association. (3) Current or former employment as, or current eligibility on the Office of Personnel Management register for Examiners GS–935–0. (4) Membership in good standing in the National Academy of Arbitrators.
Title 45: Public Welfare
PART 1211—VOLUNTEER GRIEVANCE PROCEDURES
Section Contents
§ 1211.1-1 Purpose.
§ 1211.1-2 Applicability.
§ 1211.1-3 Definitions.
§ 1211.1-4 Policy.
§ 1211.1-5 Matters not covered.
§ 1211.1-6 Freedom to initiate grievances.
§ 1211.1-7 Entitlement to representation.
§ 1211.1-8 Time for preparation and presentation.
§ 1211.1-9 Access to agency records.
§ 1211.1-10 Informal grievance procedure.
§ 1211.1-11 Initiation of formal grievance procedure.
§ 1211.1-12 Investigation by Grievance Examiner.
§ 1211.1-13 Grievance file and examiner's report.
§ 1211.1-14 Final determination by Director of VISTA.
§ 1211.1-15 Disposition of grievance appeal files.
§ 1211.1-16 Grievance procedure for National VISTA Grant Volunteers.
Appendix A to Part 1211—Standards for Examiners
§ 1211.1-1 Purpose.
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§ 1211.1-2 Applicability.
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§ 1211.1-3 Definitions.
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§ 1211.1-4 Policy.
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§ 1211.1-5 Matters not covered.
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§ 1211.1-6 Freedom to initiate grievances.
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§ 1211.1-7 Entitlement to representation.
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§ 1211.1-8 Time for preparation and presentation.
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§ 1211.1-9 Access to agency records.
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§ 1211.1-10 Informal grievance procedure.
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§ 1211.1-11 Initiation of formal grievance procedure.
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§ 1211.1-12 Investigation by Grievance Examiner.
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§ 1211.1-13 Grievance file and examiner's report.
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§ 1211.1-14 Final determination by Director of VISTA.
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§ 1211.1-15 Disposition of grievance appeal files.
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§ 1211.1-16 Grievance procedure for National VISTA Grant Volunteers.
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Appendix A to Part 1211—Standards for Examiners
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