[House Report 106-994]
[From the U.S. Government Publishing Office]
106th Congress Rept. 106-994
HOUSE OF REPRESENTATIVES
2d Session Part 1
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MERIT SYSTEMS PROTECTION BOARD ADMINISTRATIVE DISPUTE RESOLUTION ACT OF
2000
_______
October 23, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Gekas, from the Committee on the Judiciary, submitted the following
R E P O R T
[To accompany H.R. 3312]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 3312) to clarify the Administrative Dispute Resolution
Act of 1996 to authorize the Merit Systems Protection Board to
establish under such act a 3-year pilot program that will
provide a voluntary early intervention alternative dispute
resolution process to assist Federal agencies and employees in
resolving certain personnel actions and disputes in
administrative programs, having considered the same, report
favorably thereon with amendment and recommends that the bill
as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 4
Background and Need for the Legislation.......................... 4
Committee Consideration.......................................... 7
Committee Oversight Findings..................................... 7
Committee on Government Reform Findings.......................... 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Cost Estimate........................ 8
Constitutional Authority Statement............................... 9
Section-by-Section Analysis and Discussion....................... 9
Agency Views..................................................... 11
Changes in Existing Law Made by the Bill, as Reported............ 14
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Merit Systems Protection Board
Administrative Dispute Resolution Act of 2000''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Workplace disputes waste resources of the Federal
Government, take up too much time, and deflect managers and
employees from their primary job functions.
(2) The Merit Systems Protection Board (hereafter in this Act
referred to as the ``Board'') has already taken steps to
encourage agency use of ADR before appeals are filed with the
Board, including extending the regulatory time limit for filing
appeals when the parties agree to try ADR, but high levels of
litigation continue.
(3) The Board's administrative judges, who decide appeals
from personnel actions by Federal agencies, find that by the
time cases are formally filed with the Board, the positions of
the parties have hardened, communication between the parties is
difficult and often antagonistic, and the parties are not
amenable to open discussion of alternatives to litigation.
(4) Early intervention by an outside neutral, after the first
notice of a proposed action by an agency but before an appeal
is filed with the Board, will allow the parties to explore
settlement outside the adversarial context. However, without
the encouragement of a neutral provided without cost, agencies
are reluctant to support an early intervention ADR program.
(5) A short-term pilot program allowing the Board, upon the
joint request of the parties, to intervene early in a personnel
dispute is an effective means to test whether ADR at that stage
can resolve disputes, limit appeals to the Board, and reduce
time and money expended in such matters.
(6) The Board is well equipped to conduct a voluntary early
intervention pilot program testing the efficacy of ADR at the
initial stages of a personnel dispute. The Board can provide
neutrals who are already well versed in both ADR techniques and
personnel law. The Board handles a diverse workload including
removals, suspensions for more than 14 days, and other adverse
actions, the resolution of which entails complex legal and
factual questions.
SEC. 3. MERIT SYSTEMS PROTECTION BOARD ALTERNATIVE DISPUTE RESOLUTION
PILOT PROGRAM.
(a) Amendment to Chapter 5 of Title 5.--Chapter 5 of title 5, United
States Code, is amended by adding immediately after section 584 the
following:
``Sec. 585. Establishment of voluntary early intervention alternative
dispute resolution pilot program for Federal
personnel disputes
``(a) In General.--
``(1) The Board is authorized under section 572 to establish
a 3-year pilot program to provide Federal employees and
agencies with voluntary early intervention alternative dispute
resolution (in this section referred to as `ADR') processes to
apply to certain personnel disputes. The Board shall provide
ADR services, upon joint request of the parties, in matters
involving removals, suspensions for more than 14 days, other
adverse actions under section 7512, and removals and other
actions based on unacceptable performance under section 4303.
``(2) The Board shall test and evaluate a variety of ADR
techniques, which may include--
``(A) mediation conducted by private neutrals, Board
staff, or neutrals from appropriate Federal agencies
other than the Board;
``(B) mediation through use of neutrals agreed upon
by the parties and credentialed under subsection
(c)(5); and
``(C) non-binding arbitration.
``(b) Early Intervention ADR.--
``(1) Authority.--The Board is authorized to establish an
early intervention ADR process, which the agency involved and
employee may jointly request, after an agency has issued a
notice letter of a proposed action to an employee under section
4303 or 7513 but before an appeal is filed with the Board.
``(2) Notice in personnel disputes.--During the term of the
pilot program, an agency shall, in the notice letter of a
proposed personnel action under section 4303 or 7513--
``(A) advise the employee that early intervention ADR
is available from the neutral Board, subject to the
standards developed pursuant to subsection (c)(1)(A),
and that the agency and employee may jointly request
it; and
``(B) provide a description of the program, including
the standards developed pursuant to subsection
(c)(1)(A).
``(3) Request.--Any agency and employee may seek early
intervention ADR from the Board by filing a joint request with
the Board pursuant to the program standards adopted under
subsection (c)(1)(A). All personnel dispute matters appealable
to the Board under section 4303 or 7513 shall be eligible for
early intervention ADR, upon joint request of the parties,
unless the Board determines that the matter is not appropriate
for the program subject to any applicable collective bargaining
agreement established under chapter 71.
``(4) Confidentiality and withdrawal.--The consent of an
agency or an employee with respect to an early intervention ADR
process is confidential and shall not be disclosed in any
subsequent proceeding. Either party may withdraw from the ADR
process at any time.
``(5) Ancillary matter.--In any personnel dispute accepted by
the Board for the ADR pilot program authorized by this section,
the Board may attempt to resolve any ancillary matter which the
Board would be authorized to decide if the personnel action
were effected under section 4303 or 7513, including--
``(A) a claim of discrimination as described in
section 7702(a)(1)(B);
``(B) a prohibited personnel practice claim as
described in section 2302(b); or
``(C) a claim that the agency's action is or would
be, if effected, not in accordance with law.
``(c) Implementation.--
``(1) Program duties.--In carrying out the program under this
section, the Board shall--
``(A) develop and prescribe standards for selecting
and handling cases in which ADR has been requested and
is to be used;
``(B) take such actions as may be necessary upon
joint request of the parties, including waiver of all
statutory, regulatory, or Board imposed adjudicatory
time frames; and
``(C) establish a time target within which it intends
to complete the ADR process.
``(2) Extension.--The Board, upon the joint request of the
parties, may extend the time period as it finds appropriate.
``(3) Advocacy and outreach.--The Board shall conduct
briefings and other outreach, on a non-reimbursable basis,
aimed at increasing awareness and understanding of the ADR
program on the part of the Federal workforce--including
executives, managers, and other employees.
``(4) Recruitment.--The Chairman of the Board may contract on
a reimbursable basis with officials from other Federal agencies
and contract with other contractors or temporary staff to carry
out the provisions of this section.
``(5) Training and credentialling of neutrals.--The Board
shall develop a training and credentialing program to ensure
that all individuals selected by the Board to serve as program
neutrals have a sufficient understanding of the issues that
arise before the Board and are sufficiently skilled in the
practice of meditation or any other relevant form of ADR.
``(6) Regulations.--The Board is authorized to prescribe such
regulations as may be necessary to implement the ADR program
established by this section.
``(d) Evaluation.--
``(1) Criteria.--The Board's Office of Policy and Evaluation
shall establish criteria for evaluating the ADR pilot program
and prepare a report containing findings and recommendations as
to whether voluntary early intervention ADR is desirable,
effective, and appropriate for cases subject to section 4303 or
7513.
``(2) Report content.--The report, subject to subsection
(b)(4) and section 574, shall include--
``(A) the number of cases subject to the ADR program,
the agencies involved, the results, and the resources
expended;
``(B) a comprehensive analysis of the effectiveness
of the program, including associated resource and time
savings (if any), and the effect on the Board's
caseload and average case processing time;
``(C) a survey of customer satisfaction; and
``(D) a recommendation regarding the desirability of
extending the ADR program beyond the prescribed
expiration date and any recommended changes.
The recommendation under subparagraph (D) shall discuss the
relationship between the Board's pilot ADR program and those
workplace ADR programs conducted by other Federal agencies.
``(3) Report date.--The report shall be submitted to the
President and the Congress 180 days before the close of the ADR
pilot program.''.
(b) Appropriations.--
(1) In general.--For the purpose of carrying out the ADR
pilot program established by this section, there are authorized
to be appropriated such sums as may be necessary for each of
the 3 fiscal years beginning after the date of enactment of
this Act.
(2) No reductions.--The authorization of appropriations by
paragraph (1) shall not have the effect of reducing any funds
appropriated for the Board for the purpose of carrying out its
statutory mission under section 1204.
(c) Effective Date.--The amendment made by subsection (a) shall take
effect no later than the close of the 60th day after the enactment of
appropriations authorized by subsection (b)(1) and shall remain in
effect for 3 years from the effective date.
(d) Conforming Amendment.--The table of sections for subchapter IV of
chapter 5 of title 5, United States Code, is amended by adding after
the item relating to section 584 the following new item:
``585. Establishment of voluntary early intervention alternative
dispute resolution pilot program for Federal personnel disputes.''.
Amend the title so as to read:
A bill to clarify the Administrative Dispute Resolution Act
of 1996 to authorize the Merit Systems Protection Board to
establish under such Act a 3-year pilot program that will
provide a voluntary early intervention alternative dispute
resolution process to assist Federal agencies and employees in
resolving certain personnel actions.
Purpose and Summary
H.R. 3312, the ``Merit Systems Protection Board Alternative
Dispute Resolution Act of 2000,'' is designed to further
encourage the use of alternative dispute resolution within the
Federal Government. H.R. 3312 clarifies the Administrative
Dispute Resolution Act of 1996 to authorize the Merit Systems
Protection Board (MSPB or the Board) to establish a 3-year
pilot program to provide Federal agencies and employees the
opportunity to seek early intervention alternative dispute
resolution \1\ (ADR) to resolve certain types of workplace
disputes before they escalate into formal litigation before the
Board. The act also requires the MSPB to evaluate different ADR
techniques and to submit a report to Congress and the President
detailing the effectiveness of the pilot program within 6
months of its expiration. Finally, H.R. 3312 authorizes the
appropriation of sums necessary to implement the pilot program
during each year of the program's 3-year duration.
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\1\ ADR refers to procedures for settling disputes by means other
than litigation; e.g. by arbitration, mediation, mini-trials or a
hybrid of each. Usually less costly and more expeditious, ADR is
increasingly used in commercial and labor disputes and in other
disputes that would likely otherwise involve court litigation. Black's
Law Dictionary 78 (6th ed. 1990).
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Background and Need for the Legislation
Alternative Dispute Resolution
Over the last few decades, as litigation costs have risen
and court dockets have become increasingly congested, parties
have come to rely on various forms of ADR to resolve their
contractual disputes in a timely and cost-effective manner. The
use of ADR has been encouraged by Congress and the Federal
courts, which have enunciated a strong national policy in favor
of it.
Congress' first expression of Federal support for ADR came
in 1925 with passage of the Federal Arbitration Act (FAA).\2\
The act reversed judicial hostility toward arbitration, a
common form of ADR, by making agreements to arbitrate
enforceable ``save upon such grounds as exist in law or in
equity for the revocation of any contract.'' \3\ At the same
time, the Federal courts have advanced ADR by liberally
construing arbitration clauses in contracts and by invalidating
State efforts to limit the enforcement of these agreements. For
example, the Supreme Court has held that ``doubts concerning
the scope of arbitrable issues should be resolved in favor of
arbitration.'' \4\ The Court has also held that congressional
passage of the FAA ``declared a national policy favoring
arbitration and withdrew the power of the States to require a
judicial forum for the resolution of claims which the
contracting parties agreed to resolve by arbitration.'' \5\
Finally, the Court has unequivocally rejected State efforts to
limit the enforcement of arbitration agreements by ruling that
the FAA preempts all State laws that subject arbitration
agreements to heightened levels of contractual scrutiny.\6\
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\2\ United States Arbitration Act, ch. 213, 43 Stat. 883 (1925)
(codified as amended at 9 U.S.C. Sec. Sec. 1-14 (2000)).
\3\ See id. Sec. 2.
\4\ Moses Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
24 (1983).
\5\ Southland Corp. v. Keating, 465 U.S. 1, 18 (1984).
\6\ Allied-Bruce Terminix v. Cos. v. Dobson, 513 U.S. 265 (1995).
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Prevalence of ADR in the Federal Government
In response to spiraling litigation costs faced by the
Federal Government, Congress has sought to extend the benefits
of ADR to Federal agencies. Finding that the ``availability of
a wide range of dispute resolution procedures * * * will
enhance the operation of the Government and better serve the
public,'' Congress passed the Administrative Dispute Resolution
Act \7\ (ADRA) in 1990. The ADRA required Federal agencies to:
adopt a policy favoring ADR; designate a senior official as the
agency responsible for ADR; provide training on ADR methods;
and review agency contracts and agreements for possible
implementation of ADR techniques. A year later, President Bush
issued a corresponding executive order affirming the benefits
of ADR and encouraging its continued implementation throughout
the Federal Government.\8\
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\7\ Pub. L. No. 101-552, 104 Stat. 2736 (codified as amended at 5
U.S.C. Sec. Sec. 581-593 (2000)).
\8\ Exec. Order No. 12,778, 56 Fed. Reg. 55,195 (1991) (codified at
5 U.S.C. Sec. Sec. 581-593 (2000)).
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Encouraged by the success of ADR programs at Federal
agencies, Congress permanently reauthorized the ADRA, with
amendments, in 1996.\9\ The 1996 amendments extended the scope
of the ADRA by authorizing Federal agencies to establish ADR
programs employing binding arbitration \10\ and by prohibiting
the disclosure of confidential material obtained in the course
of ADR settlement under the Freedom of Information Act.\11\
These amendments have served to further enhance the use of ADR
at Federal agencies. Congress has also encouraged the judicial
branch to implement ADR programs. In 1990, Congress authorized
Federal district courts to implement pilot ADR programs to
facilitate settlement outside of the formal litigation
process.\12\ In 1998, Congress greatly expanded government
support of ADR by passing legislation requiring every Federal
district court to provide litigants at least one ADR
alternative during the Federal civil litigation process.\13\
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\9\ Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-
320, 110 Stat. 38709.
\10\ See id. Sec. 590.
\11\ See id. Sec. 584.
\12\ Civil Justice Reform Act of 1990, Pub. L. No. 101-650, 104
Stat 5089 (codified at 28 U.S.C. Sec. Sec. 471-82 (2000)).
\13\ Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-
315, 112 Stat. 2993 (codified at 28 U.S.C. Sec. Sec. 651-658 2000)).
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Merit Systems Protection Board
The Merit Systems Protection Board (the Board) is an
independent adjudicatory agency which was established by the
Civil Service Reform Act of 1978.\14\ The Board has appellate
jurisdiction over certain types of adverse personnel actions
\15\ taken against Federal employees. Board decisions are
appealable to the U.S. Court of Appeals for the Federal
Circuit, or if the appeal concerns a discrimination claim, to
the Equal Employment Opportunity Commission.\16\ Since its
creation, the Board has heard tens of thousands of cases while
providing Federal employees with an institutionally independent
and impartial forum for resolving their employment disputes
with Federal agencies.
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\14\ Pub. L. No. 95-454, 91 Stat. 1111 (codified as amended in
scattered sections of 5 U.S.C.).
\15\ 5 U.S.C. Sec. Sec. 7512 & 4303 (2000).
\16\ See id. Sec. 1204 (codified at 5 U.S.C. Sec. Sec. 1201-22
(2000)).
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Over the last decade, Congress has steadily expanded the
jurisdiction of the Board. Examples of this expansion include
the Whistleblower Protection Act of 1989,\17\ the Civil Rights
Act of 1991,\18\ the Uniformed Services Employment and
Reemployment Rights Act of 1994,\19\ the Presidential and
Executive Office Accountability Act of 1996,\20\ and the
Veterans Employment Opportunities Act of 1998.\21\ The added
scope and complexity of the Board's jurisdiction has not been
matched by a commensurate increase in judicial resources. Since
1993, MSPB's staff has fallen nearly 25 percent, from 323 to
250 employees.\22\ In 1999, the Board and its regional and
field offices closed 9,806 cases.\23\ While the MSPB has lived
up to its promise of providing Federal employees with an
independent appellate forum to resolve employment disputes with
the Federal agencies for which they work, the volume of this
caseload has necessitated further exploration of alternatives
to formal litigation before the Board.
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\17\ Pub. L. No. 101-12, 103 Stat. 16.
\18\ Pub. L. No. 102-166, 105 Stat. 1071 (codified in scattered
sections of 42 U.S.C.)
\19\ Pub. L. No. 103-353, 108 Stat. 3149 (codified at 38 U.S.C.
Sec. Sec. 4301-4333 (2000)).
\20\ Pub. L. No. 104-331, 110 Stat. 4054 (codified at 3 U.S.C.
Sec. 401 (2000)).
\21\ Pub. L. No. 105-339, 112 Stat. 3182 (codified in scattered
sections of 8 U.S.C.).
\22\ 1999 MSPB. Ann. Rep. 6.
\23\ Id. at 11.
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H.R. 3312, MSPB Alternative Dispute Resolution Act of 2000
H.R. 3312 would clarify the Administrative Dispute
Resolution Act of 1996 to authorize a 3-year, early
intervention pilot ADR program at the Board to assist Federal
agencies and employees in resolving personnel actions and
disputes within the MSPB's jurisdiction. The pilot program is
designed to assist the Board's judges in managing an increasing
caseload while reducing litigation expenses faced by Federal
agencies and employees who might have otherwise sought formal
litigation before the Board.
A key feature of the pilot program permits Federal agencies
and employees to seek early intervention ADR from a neutral
after the first notice of planned agency action but before an
appeal is formally filed with the Board. This provision for
early intervention outside the adversarial context helps to
maximize the chances of settlement before the positions of the
parties harden and become so antagonistic that settlement is
unlikely. Since a fully litigated Board appeal can be as costly
as private litigation, the administrative savings from
effective early settlement can be substantial. The program is
also notable for its voluntariness, since either party may
withdraw from ADR at any stage of the process. Establishment of
this program will in no way affect the collective bargaining
rights of covered personnel.
Another important provision of H.R. 3312 requires that the
Board evaluate the efficacy of a variety of ADR techniques.
H.R. 3312 authorizes such sums as may be necessary to fund the
pilot program. The provision of funds will ensure that MSPB has
the resources necessary to fully implement the pilot program
while encouraging the participation of other agencies in the
program. Finally, the bill requires the Board's Office of
Policy and Evaluation to submit a comprehensive report
detailing the effectiveness of the pilot program within 6
months of the program's termination. This information, to be
drawn from empirical evidence based upon actual settlements,
will allow Congress to more fully ascertain the fiscal prudence
of extending the program beyond the 3-year period of the pilot
program.
Committee Consideration
On June 20, 2000, the Subcommittee on Commercial and
Administrative Law met in open session and ordered favorably
reported the bill H.R. 3312, as amended, unanimously by voice
vote, a quorum being present. On September 19, 2000, the
committee met in open session and ordered favorably reported
the bill H.R. 3312, with a single amendment in the nature of a
substitute unanimously by voice vote, a quorum being present.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is applicable because
this legislation provides new budgetary authority or increased
tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the committee sets forth, with
respect to H.R.3312, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under Section 402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 22, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3312, a bill to
clarify the Administrative Dispute Resolution Act of 1996 to
authorize the Merit Systems Protection Board to establish under
such act a 3-year pilot program that will provide a voluntary
early intervention alternative dispute resolution process to
assist federal agencies and employees in resolving certain
personnel actions.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is John R.
Righter.
Sincerely,
Dan L. Crippen, Director.
Enclosure.
H.R. 3312--A bill to clarify the Administrative Dispute Resolution Act
of 1996 to authorize the Merit Systems Protection Board to
establish under such act a 3-year pilot program that will
provide a voluntary early intervention alternative dispute
resolution process to assist federal agencies and employees in
resolving certain personnel actions
H.R. 3312 would authorize the Merit Systems Protection
Board (MSPB) to establish a three-year pilot program to
encourage agencies and employees to use alternative dispute
resolution (ADR) procedures to settle disputes before they
escalate into formal actions before the MSPB. The bill would
require that the MSPB evaluate and report on the pilot program
within six months of its expiration. H.R. 3312 would authorize
the appropriation of such sums as are necessary each year to
implement the program.
Based on information from the MSPB, CBO estimates that
implementing H.R. 3312 would cost around $2 million in each of
fiscal years 2001 through 2003. (The MSPB received an
appropriation of $27.6 million for fiscal year 2000.) That
estimate would allow the MSPB to develop and advertise the
program to federal agencies, to both hire new employees and
contract with nonfederal professionals, to train and certify
individuals in the practice of ADR techniques, and to report on
the program's effectiveness. Because the bill would not affect
direct spending or receipts, pay-as-you-go procedures would not
apply. H.R. 3312 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
and would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is John R. Righter,
who can be reached at 226-2860. This estimate was approved by
Robert A. Sunshine, Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in article I, section 8 of the Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short title
This section entitles the bill the ``Merit Systems
Protection Board Administrative Dispute Resolution Act of
2000.''
Section 2. Findings
Section 2 consists of a congressional statement of
findings. The findings reflect Congress' recognition of the
cost, time and expense of Federal workplace disputes and the
persistence of high levels of litigation at the MSPB. The
statement stresses the importance of early intervention ADR to
help resolve disputes while parties are more amenable to formal
litigation, and notes that Federal agencies are more inclined
to support alternatives to formal litigation if neutrals are
provided to them without expense. The findings state that a
pilot program that permits Federal agencies and employees to
request early intervention ADR at the Board would effectively
test the efficacy of ADR in this context. Finally, the
statement stresses that the Board is well-equipped to implement
the pilot program since Board judges are well-versed in both
ADR techniques and in the substance of employment law.
Section 3. Merit Systems Protection Board Alternative Dispute
Resolution Pilot Program
Section 3(a) amends chapter 5 of title 5 of the United
States Code by adding section 585, which authorizes the
establishment of a voluntary early intervention ADR pilot
program at the Board. Subsection (a) specifies the types of
personnel and administrative disputes that may be resolved by
the program and requires the Board to evaluate a variety of ADR
techniques, including mediation conducted by Board staff,
private neutrals, or neutrals from appropriate Federal agencies
other than the Board.
Subsection (b) stresses that Federal agencies and employees
may jointly request to participate in the program at any time
if the dispute is one under a Board administrative program. In
the case of personnel disputes, parties may jointly request ADR
under the program after an agency has issued a notice letter of
proposed action under section 4303 or 7513 of title 5. This
subsection requires that the notice letter of proposed agency
action under sections 4303 and 7513 describe the Board's early
intervention ADR program and inform employees of their option
to participate in the program. Section 585(b) further provides
that agencies and employees may seek early intervention ADR
under the program by filing a joint request with the Board and
states that all personnel disputes under sections 4303 and 7513
are eligible for early intervention ADR unless the Board
determines that the matter is not appropriate for the program.
Finally, section (b) provides that an agency or employee
decision to participate in the Board's early intervention ADR
program shall not be disclosed in any subsequent proceeding and
states that either party may withdraw from the ADR program
throughout the process.
Section 585(c) specifies how the Board should implement the
ADR program. It requires the Board to develop and prescribe
standards for selecting and handling cases in which ADR has
been requested and enables the Board to take actions that might
be necessary, including waiver or extension of all statutory,
regulatory or Board-imposed time frames, to facilitate the
success of the program. This subsection also requires the Board
or other contractors hired by the Board Chairman to conduct
advocacy and outreach to increase awareness of the program
within the Federal workforce. Section 585(c) further requires
the Board to develop a training and credentialing program to
ensure that all individuals selected by the Board to serve as
program neutrals possess sufficient understanding of ADR
process and of the issues that arise before the Board. Finally,
section 585(c) authorizes the Board to prescribe such
regulations as may be necessary to implement the ADR program.
Section 585(d) sets standards for evaluating the Board's
ADR pilot program. It requires the Board to establish criteria
for evaluating the program and to prepare a report detailing
finding and recommendations as to whether voluntary early
intervention ADR is a desirable, effective, and appropriate
means of resolving disputes before the Board. Section 585(d)
requires the report to identify the number of cases subject to
the ADR program, the agencies involved, the results of the
program, and the resources expended. The report must include a
detailed analysis of the effectiveness of the program,
including any resource and time savings, and the program's
impact on the Board's caseload and case processing time. The
report must also include a customer service survey, a
recommendation as to whether to extend the program beyond its
expiration date, any suggested improvements to the program, and
a discussion of the relationship between the Board's pilot ADR
program and workplace ADR programs conducted by other Federal
agencies. Section 585(d) requires that the report be submitted
to the President and Congress 180 days before the close of the
ADR pilot program.
Section 3(b) authorizes the appropriation of sums necessary
to implement the pilot ADR program for each of the 3 years
following the enactment of the act. This subsection also
requires that the authorization of funds shall not reduce the
funds appropriated to the Board to carry out its statutory
mission under section 1204.
Section 3(c) states that the program shall take effect no
later than 60 days after the enactment of appropriations
authorized under subsection (b)(1) and remain in effect for 3
years from the effective date.
Section 3(d) amends subchapter IV of chapter 5 of title 5
of the United States Code by adding section 584,
``Establishment of voluntary early intervention ADR pilot
program for Federal personnel disputes.''
Agency Views
Federal Mediation and
Conciliation Service,
Washington, DC, May 15, 2000.
Hon. George W. Gekas,
Chairman, Subcommittee on Commercial & Administrative Law, Committee on
the Judiciary, House of Representatives, Washington, DC.
Dear Congressman Gekas: Please consider this letter to be
the official submission of commentary by the Federal Mediation
& Conciliation Service (FMCS) on HR 3312, which seeks to
clarify the Administrative Dispute Resolution Act of 1996 to
authorize the Merit Systems Protection Board (``MSPB'' or ``the
Board'') to establish a 3-year pilot program to provide a
voluntary early intervention Alternative Dispute Resolution
(ADR) process. The purpose of this commentary is to explain to
the Subcommittee why FMCS believes HR 3312, modified as
recommended by the Department of Justice, to be a worthy and
important bill that it should recommend for passage to the
Judiciary Committee.
I. ABOUT FMCS
Employing over 200 full time mediators, the largest cadre
of full time mediators in the world, FMCS is a unique federal
agency with over fifty years of experience in the resolution of
labor-management disputes. FMCS is only one of two agencies in
the federal government that has conflict resolution as its
primary mission. (The other is the National Mediation Board,
which resolves disputes in the air and railway transportation
industries.) In recent decades, FMCS' mandate has expanded
significantly in response to the changing needs of the U.S.
economy and the growing awareness that FMCS' dispute resolution
techniques can be successfully applied to many situations
beyond the labor-management context. In particular, through
congressional legislation, federal agency regulations,
executive orders, and agreements with other federal agencies,
FMCS has for many years provided expert services as outside
third party neutrals, ADR systems designers, and ADR trainers
throughout the federal government.
II. WHY THIS SUBCOMMITTEE SHOULD RECOMMEND HR 3312 FOR PASSAGE TO THE
JUDICIARY COMMITTEE
It is FMCS' position that HR 3312, modified as recommended
by the Department of Justice, is a good bill which, if enacted,
would save a significant amount of time and money in the form
of reduced litigation costs and increased productivity for
employees, agencies and taxpayers alike. Resolving disputes at
the lowest possible level and in the most expeditious manner
avoids significant resource expenditures to resolve them more
formally later on. Early resolution of disputes often better
preserves workplace relationships because the parties tend to
become less entrenched in their respective positions.
Relationships can also improve from the joint exercise of
working cooperatively toward a resolution in an ADR setting. In
addition, early and lasting resolution of workplace disputes
enhances productivity because it keeps employees away from
their jobs for shorter periods of time and reduces the amount
of time they are mentally distracted by workplace conflict. In
the long run, ADR can also contribute to the development of a
culture of conflict resolution that keeps disputes from
escalating in the first place.
HR 3312 provides an important mandate as well a legal and
economic framework in which the above positive outcomes can
occur. It provides built-in flexibility for the MSPB to
experiment with different systems and approaches for resolving
disputes in the most expeditious manner and at the lowest
possible level. It wisely provides for the continuous learning
that is necessary when an organization adopts any significant
change in its operating procedures. These are significant
strengths that reflect a most enlightened approach to
legislation. For these reasons this Subcommittee should
strongly recommend passage of HR 3312.
1. HR 3312 is also laudable for its emphasis on a systems approach to
ADR
It is FMCS' view that passage of HR 3312 would be extremely
beneficial not only because of its economic and social impact,
but also because of its value as Congress' continuing
recognition of the importance of ADR and the elements that
comprise a coherent and successful ADR system. As ADR
professionals, we at FMCS always advise our clients to think in
terms of a systems approach. This advice recognizes that an ADR
system is, in reality, the interdependence of several
indispensable elements.
The draft text of HR 3312 submitted by the Justice
Department (``Draft Text'') recognizes the importance of these
elements in several ways. First, it explicitly provides for the
training and credentialing of the program's neutrals. This is a
very attractive feature of the legislation: without a system in
place to train the program's neutrals to ensure that they are
sufficiently skilled in the practice of mediation and also
understand the arcane and complex issues that the Board
confronts, there would be a great risk that quality would
suffer. In such a case, parties could lose faith in the system
and stop using it, thereby continuing to increase the Board's
caseload with even more deeply entrenched positions. For these
reasons, it is wise to include a provision for the training and
credentialing of the program's neutrals in HR 3312.
FMCS agrees with our colleagues at the Justice Department
that the MSPB should not require parties to use mediators who
are MSPB Administrative Judges (AJs) in order to participate in
the program. Such an arrangement risks creating a perception
that the MSPB AJ mediating the case might share information
with the MSPB AJ(s) hearing the case. Irrespective of whether
such a communication would actually take place, there might
very well be the perception that it could. That perception is
potentially very damaging to the mediation process, as candor
and openness are essential elements of any successful
mediation. Parties may not make the statement that can ``seal
the deal'' if they suspect it could prejudice them before the
AJ if the mediation ultimately does not resolve the issue. For
these reasons as well as the reasons identified by the Justice
Department, FMCS endorses subsection 585(a)(2)(A) of the HR
3312 Draft Text, requiring the Board to test and evaluate a
variety of ADR techniques, including ``mediation conducted by
private neutrals, Board staff, or neutrals from appropriate
federal agencies other than the Board.'' If MSPB AJs do end up
serving as mediators in this program, there should be
procedures in place to assure the parties that he or she will
not reveal statements made in mediation with the Judge(s) that
will hear the case.
Another attractive feature of the HR 3312 Draft Text is its
mandate for the Board to conduct appropriate advocacy and
outreach aimed at increasing awareness and understanding of the
ADR program on the part of the federal workforce. Such advocacy
and outreach is critical to ensuring that the program's
potential users are aware that it is available and, of
fundamental importance, that they are informed as to how to
recognize when ADR is appropriate and how to go about availing
themselves of the program. Appropriate advocacy and outreach
can also ensure that potential parties feel comfortable using
the program--that they understand that it is voluntary, does
not require that they forfeit any of their rights, is neutral
and confidential, and that there are great potential benefits
from participating in the process. For these reasons, the Draft
Text's provision for outreach to federal managers, supervisors
and staff is an example of very smart legislation, legislation
that takes into account how it will actually be put into
practice.
Finally, the bill wisely provides for an independent
evaluation and feedback mechanism to track not only whether the
program is meeting its objectives but also whether it is
meeting the needs of its customers. As guardians of the
public's trust and the public's money, it is important for
implementing agencies to not only publicly account for a
program's results, but also to have a feedback mechanism by
which they can continuously improve the quality of their
service delivery. FMCS has much confidence in the expertise of
the MSPB and its capacity to deliver a quality program to the
public, and trusts that as the Board designs its program it
will provide for an evaluation loop to feed back into service
delivery at several points, well before the final independent
report is due at the end of three years. As the most
experienced designers of ADR systems in the federal government,
FMCS stands prepared to advise the Board, at its request, in
how to provide for a continuously improving ADR program that
most wisely spends the taxpayers' money.
III. CONCLUSION
As I have discussed above, this Subcommittee should
recommend HR 3312, modified as recommended by the Department of
Justice, for passage because it encourages early settlement of
disputes, with all of the attendant benefits, and does so by
taking a systems approach. While the provisions that I have
discussed--training and credentialing, education and outreach,
and independent evaluation and feedback--are important
components of a coherent ADR system, the design of a truly
effective system is a complex task requiring great expertise
and experience. With FMCS' considerable expertise in the areas
of ADR training and certification, education and outreach,
program evaluation, maintenance of a panel of outside neutrals
(FMCS has over 1400 of them), and the development and
maintenance of standards of professional responsibility, we
would be happy to contract with the MSPB to coordinate with and
advise them as they implement this pilot program.
In conclusion, FMCS strongly encourages the Subcommittee to
support this commendable legislation and the good work of the
Merit Systems Protection Board by recommending it for passage
to the Judiciary Committee. I would be happy to appear before
the Subcommittee to provide further comment on how the proposed
legislation could be implemented successfully, and the role
that FMCS could play in making that happen.
Sincerely,
Richard Barnes, Director.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 5--ADMINISTRATIVE PROCEDURE
* * * * * * *
SUBCHAPTER I--GENERAL PROVISIONS
Sec.
500. Administrative practice; general provisions.
* * * * * * *
SUBCHAPTER IV--ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
* * * * * * *
585. Establishment of voluntary early intervention alternative
dispute resolution pilot program for Federal personnel
disputes.
* * * * * * *
SUBCHAPTER IV--ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS
* * * * * * *
Sec. 585. Establishment of voluntary early intervention alternative
dispute resolution pilot program for Federal
personnel disputes
(a) In General.--
(1) The Board is authorized under section 572 to
establish a 3-year pilot program to provide Federal
employees and agencies with voluntary early
intervention alternative dispute resolution (in this
section referred to as ``ADR'') processes to apply to
certain personnel disputes. The Board shall provide ADR
services, upon joint request of the parties, in matters
involving removals, suspensions for more than 14 days,
other adverse actions under section 7512, and removals
and other actions based on unacceptable performance
under section 4303.
(2) The Board shall test and evaluate a variety of
ADR techniques, which may include--
(A) mediation conducted by private neutrals,
Board staff, or neutrals from appropriate
Federal agencies other than the Board;
(B) mediation through use of neutrals agreed
upon by the parties and credentialed under
subsection (c)(5); and
(C) non-binding arbitration.
(b) Early Intervention ADR.--
(1) Authority.--The Board is authorized to establish
an early intervention ADR process, which the agency
involved and employee may jointly request, after an
agency has issued a notice letter of a proposed action
to an employee under section 4303 or 7513 but before an
appeal is filed with the Board.
(2) Notice in personnel disputes.--During the term of
the pilot program, an agency shall, in the notice
letter of a proposed personnel action under section
4303 or 7513--
(A) advise the employee that early
intervention ADR is available from the neutral
Board, subject to the standards developed
pursuant to subsection (c)(1)(A), and that the
agency and employee may jointly request it; and
(B) provide a description of the program,
including the standards developed pursuant to
subsection (c)(1)(A).
(3) Request.--Any agency and employee may seek early
intervention ADR from the Board by filing a joint
request with the Board pursuant to the program
standards adopted under subsection (c)(1)(A). All
personnel dispute matters appealable to the Board under
section 4303 or 7513 shall be eligible for early
intervention ADR, upon joint request of the parties,
unless the Board determines that the matter is not
appropriate for the program subject to any applicable
collective bargaining agreement established under
chapter 71.
(4) Confidentiality and withdrawal.--The consent of
an agency or an employee with respect to an early
intervention ADR process is confidential and shall not
be disclosed in any subsequent proceeding. Either party
may withdraw from the ADR process at any time.
(5) Ancillary matter.--In any personnel dispute
accepted by the Board for the ADR pilot program
authorized by this section, the Board may attempt to
resolve any ancillary matter which the Board would be
authorized to decide if the personnel action were
effected under section 4303 or 7513, including--
(A) a claim of discrimination as described in
section 7702(a)(1)(B);
(B) a prohibited personnel practice claim as
described in section 2302(b); or
(C) a claim that the agency's action is or
would be, if effected, not in accordance with
law.
(c) Implementation.--
(1) Program duties.--In carrying out the program
under this section, the Board shall--
(A) develop and prescribe standards for
selecting and handling cases in which ADR has
been requested and is to be used;
(B) take such actions as may be necessary
upon joint request of the parties, including
waiver of all statutory, regulatory, or Board
imposed adjudicatory time frames; and
(C) establish a time target within which it
intends to complete the ADR process.
(2) Extension.--The Board, upon the joint request of
the parties, may extend the time period as it finds
appropriate.
(3) Advocacy and outreach.--The Board shall conduct
briefings and other outreach, on a non-reimbursable
basis, aimed at increasing awareness and understanding
of the ADR program on the part of the Federal
workforce--including executives, managers, and other
employees.
(4) Recruitment.--The Chairman of the Board may
contract on a reimbursable basis with officials from
other Federal agencies and contract with other
contractors or temporary staff to carry out the
provisions of this section.
(5) Training and credentialling of neutrals.--The
Board shall develop a training and credentialing
program to ensure that all individuals selected by the
Board to serve as program neutrals have a sufficient
understanding of the issues that arise before the Board
and are sufficiently skilled in the practice of
meditation or any other relevant form of ADR.
(6) Regulations.--The Board is authorized to
prescribe such regulations as may be necessary to
implement the ADR program established by this section.
(d) Evaluation.--
(1) Criteria.--The Board's Office of Policy and
Evaluation shall establish criteria for evaluating the
ADR pilot program and prepare a report containing
findings and recommendations as to whether voluntary
early intervention ADR is desirable, effective, and
appropriate for cases subject to section 4303 or 7513.
(2) Report content.--The report, subject to
subsection (b)(4) and section 574, shall include--
(A) the number of cases subject to the ADR
program, the agencies involved, the results,
and the resources expended;
(B) a comprehensive analysis of the
effectiveness of the program, including
associated resource and time savings (if any),
and the effect on the Board's caseload and
average case processing time;
(C) a survey of customer satisfaction; and
(D) a recommendation regarding the
desirability of extending the ADR program
beyond the prescribed expiration date and any
recommended changes.
The recommendation under subparagraph (D) shall discuss
the relationship between the Board's pilot ADR program
and those workplace ADR programs conducted by other
Federal agencies.
(3) Report date.--The report shall be submitted to
the President and the Congress 180 days before the
close of the ADR pilot program.
* * * * * * *