piration of the Volunteer's time to answer.) (2) If the decision is to terminate the Volunteer, the Notice will set forth the reasons for the decision, the effective date of termination (which, if the Volunteer has filed an answer, may not be earlier than 10 days after the date of the Notice of Decision), and the fact that the Volunteer has 10 days in which to submit a written appeal to the Regional Director. (3) A Volunteer who has not filed an answer pursuant to the procedures outlined above is not entitled to appeal the decision or request a hearing and may be terminated on the date of the Notice. (d) Allowances and Project Activities. (1) A Volunteer who files an answer within the 10 days allowed by § 1210.3-4(b) with the State Director or designee following receipt of the notice of proposed termination, will be placed in Administrative Hold status, and may continue to receive regular allowances, but no stipend, in accordance with ACTION policy, until the appeal is finally decided. The Volunteer may not engage in any project related activities during this time. (2) If the proposed termination is reversed, the Volunteer's stipend and any other allowances lost during the period of review will be reinstated retroactively. § 1210.3-5 Preparation for appeal. (a) Entitlement to Representation. A Volunteer may be accompanied, represented and advised by a representative of the Volunteer's own choice at any stage of the appeal. A person chosen by the Volunteer must be willing to act as representative and not be disqualified because of conflict of position. (b) Time for Preparation and Presentation. (1) A Volunteer's representative, if a Volunteer or an employee of ACTION, must be given a reasonable amount of time off from assignment to present the appeal. (2) ACTION will not pay travel expenses or per diem travel allowances for either a Volunteer or the Volunteer's representative in connection with the preparation of the appeal, except to attend the hearing as provided in § 1210.3-7(c)(5). (c) Access to Agency Records. (1) 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 Privacy Act and the Freedom of Information Act, (5 U.S.C. 552a; 5 U.S.C. 552). 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 memoranda. (2) A Volunteer may review relevant documents in the possession of a sponsor to the same extent ACTION would be entitled to review them. § 1210.3-6 Appeal of termination. (a) Appeal to Regional Director. A Volunteer has 10 days from the Notice of Decision issued by the State Director or designee in which to appeal to the Regional Director. The appeal must be in writing and specify the reasons for the Volunteer's disagreement with the decision. The Regional Director has 10 days in which to render a written decision on the Volunteer's appeal, indicating the reason for the decision. In notifying the Volunteer of the decision, the Regional Director must also inform the Volunteer of his or her opportunity to request the appointment of a Hearing Examiner and the procedure to be followed. (b) Referral to Hearing Examiner. If the Volunteer is dissatisfied with the decision of the Regional Director, the Volunteer has 5 days in which to request the appointment of a Hearing Examiner. The Regional Director must act on that request within 5 days. The Hearing Examiner must possess the qualifications specified in Appendix A to this Part, and may not be an employee of ACTION unless his or her principal duties are those of Hearing Examiner. § 1210.3-7 Inquiry by Hearing Examiner. (a) Scope of Inquiry. (1) The Examiner shall conduct an inquiry of a nature and scope appropriate to the issues involved in the termination. If the Examiner determines that the ter mination involves relevant disputed issues of fact, the Examiner must hold a hearing unless it is waived by the Volunteer. If the Examiner determines that the termination does not involve relevant disputed issues of facts, the Examiner need not hold a hearing, but must provide the parties an opportunity for oral presentation of their respective positions. At the Examiner's discretion, the inquiry may include: (i) The securing of documentary evidence; (ii) Personal interviews, including telephone interviews; (iii) Group meetings; or (iv) Affidavits, written interrogatories or depositions. (2) The Examiner's inquiry shall commence within 7 days after referral by the Regional Director. The Examiner shall issue a report as soon as possible, but within 30 days after referral, except when a hearing is held. If hearing is held, the Examiner shall issue a report within 45 days after the referral. (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 the decision. (2) Ordinarily, attendance at the hearing will be limited to persons determined by the Examiner to have a direct connection with it. 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) 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 appear to 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 own 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 10 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 wit nesses. (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 expense and per diem at standard Government rates for the Volunteer and a representative to attend the hearing. (6) The Examiner may authorize payment of travel expense and per diem at standard Government rates for other necessary witnesses to attend the hearing if he or she determines that the required testimony cannot be satisfactorily obtained by affidavit, written interrogatories or deposition at less cost. (d) Report of Hearing. (1) The Examiner shall determine how any hearing shall be reported and shall have either a verbatim transcript or written summary of the hearing prepared, which shall include all pertinent documents and exhibits submitted and accepted. If the hearing is reported verbatim, the Examiner shall make the transcript a part of the record of the proceedings. (2) 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. When agreed to in writing, the summary constitutes the report of the hearing. If the Examiner and the parties fail to agree on the hearing summary, the parties are entitled to submit written exceptions to any part of the summary, and these written exceptions and the summary will constitute the report of the hearing and shall be made part of the record of proceedings. (3) The Volunteer may make a recording of the hearing at the Volunteer's own expense if no verbatim transcript is made. § 1210.3-8 Termination file and Examiner's report. (a) Preparation and Content. The Examiner shall establish a termination file containing documents related to the termination, including statements of witnesses, records or copies thereof, and the report of the hearing when a hearing was held. The Examiner shall also prepare a report of findings and recommendations which shall be made part of the termination file. (b) Review by Volunteer. On completion of the termination file, the Examiner shall make it available to the Volunteer and representative for review and comment before submission to the Director of VISTA. Any comments by the Volunteer or representative should be submitted to the Hearing Examiner for inclusion in the termination file not later than 5 days after the file is made available to them. The comments should identify those parts of the Examiner's report which support the appeal. (c) Submission of termination file. Immediately upon receiving the comments from the Volunteer the Hearing Examiner shall submit the termination file to the Director of VISTA. § 1210.3-9 Decision by Director of VISTA. The Director of VISTA shall issue a written decision, including a statement of the basis for the decision, within 10 days after receipt of the termination file. The decision of the Director of VISTA is the final Agency decision. 8 1210.3-10 Reinstatement of Volunteer. (a) If the Regional Director or Director of VISTA reinstates the Volunteer, the Regional Director may at his or her discretion reassign the Volunteer to the Volunteer's previous project or to another project. The Regional Director, in making such a decision, must request the Volunteer's views, but has the final decision on the Volunteer's placement. (b) If the Volunteer's termination is reversed, stipend and other allowances lost during the appeal period will be paid retroactively. 8 1210.3-11 Disposition of termination and appeal files. All termination and appeal files shall be forwarded to the Director of VISTA after a final decision has been made and are subject to the provisions of the Privacy Act and Freedom of Information Act. No part of any successful termination appeal may be made part of, or included in, a Volunteer's official folder. Subpart D-National Grant Trainees and Volunteers § 1210.4 Early termination procedures for National Grant Trainees and Volunteers. Trainees and Volunteers serving in the National Grant Program as defined in § 1210.1-3(e) will be subject to the same termination procedure as standard VISTA Trainees and Volunteers with the following exceptions: (a) For Trainees, the deselection procedure, [See § 1210.2-2] will be handled by the Project Manager in ACTION/Headquarters. (b) The Initiation of termination, [See 1210.3-4 (a) and (b)] will be handled by the VISTA Project Manager in ACTION/Headquarters, with the concurrence of the appropriate State Director. The Review and Notice of Decision, [See § 1210.3-4(c)] will be handled by the VISTA Project Manager in ACTION/Headquarters. (c) The Appeal of termination, [See § 1210.3-6(a)] will be handled by the Chief of VISTA Branch and not the Regional Director. (d) The final decision on a Volunteer appeal will be made by the Director of VISTA as provided in § 1210.3. APPENDIX A-STANDARD FOR EXAMINERS (a) An Examiner must meet the requirements specified in either paragraph (1), (2), (3), or (4) of this appendix: (1)(a) Current employment in Grades GS12 or equivalent, or above; (b) Satisfactory completion of a specialized course of training prescribed by the Office of Personnel Management for Examiners; (c) At least four 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 determination of the pertinent facts; evaluate the facts; and develop practical 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's register for Hearing Examiner, GS-935-0. (4) Membership in good standing in the National Academy of Arbitrators. (b) A former Federal employee who, at the time of leaving the Federal service, was in Grade GS-12 or equivalent, or above, and who meets all the requirements specified for an Examiner except completion of the prescribed training course, may be used as an Examiner upon satisfactory completion of the training course. PART 1211-VOLUNTEER GRIEVANCE PROCEDURES Sec. 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-STANDARDS FOR EXAMINERS 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. § 1211.1-1 Purpose. This Part establishes procedures under which certain volunteers enrolled under Pub. L. 93-113 may present and obtain resolution of griev ances. § 1211.1-2 Applicability. 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.). § 1211.1-3 Definitions. (a) "Volunteer" means a person enrolled and currently serving as a fulltime 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. 81211.1-4 Policy. 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. 81211.1-5 Matters not covered. 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. |