[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2946 Introduced in House (IH)]







106th CONGRESS
  1st Session
                                H. R. 2946

 To amend title 5, United States Code, to authorize the Merit Systems 
  Protection Board to conduct an alternative dispute resolution pilot 
  program to assist Federal Government agencies in resolving serious 
   workplace disputes, and to establish an administrative judge pay 
   schedule for administrative judges employed by the Merit Systems 
                           Protection Board.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 24, 1999

  Mr. Gekas introduced the following bill; which was referred to the 
                     Committee on Government Reform

_______________________________________________________________________

                                 A BILL


 
 To amend title 5, United States Code, to authorize the Merit Systems 
  Protection Board to conduct an alternative dispute resolution pilot 
  program to assist Federal Government agencies in resolving serious 
   workplace disputes, and to establish an administrative judge pay 
   schedule for administrative judges employed by the Merit Systems 
                           Protection Board.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. POLICY, FINDINGS, AND PURPOSES.

    (a) Policy.--Chapter 12 of title 5, United States Code, is amended 
to authorize the United States Merit Systems Protection Board to test 
and evaluate a variety of alternative dispute resolution techniques in 
workplace disputes involving Federal administrative agencies and 
proceedings governed by chapters 5 and 7 of title 5, United States 
Code. The statement of purpose and policy is a reaffirmation of the 
encouragement to Federal agencies to use alternative dispute 
resolution, enunciated in the Administrative Dispute Resolution Act of 
1996. (Public Law 104-320).
    (b) Findings.--The Congress finds that--
            (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) In the past, the Federal Government has relied heavily 
        upon traditional, adversarial processes.
            (3) Alternative dispute resolution has been useful in 
        resolving a variety of matters in controversy without 
        litigation, providing quick resolution, open communications, 
        improved working relationships and avoidance of costly and 
        lengthy litigation, and use of alternative dispute resolution 
        should be promoted.
            (4) It is important to determine whether mandatory 
        alternative dispute resolution is desirable, appropriate, or 
        effective for certain workplace disputes.
            (5) The Merit Systems Protection Board is well suited to 
        conduct a 3-year alternative dispute resolution program 
        focusing on workplace disputes in the Federal sector because it 
        is an independent adjudicative agency that decides 
        approximately 10,000 cases involving Federal workplace disputes 
        each year, has a long history of using alternative dispute 
        resolution to settle cases filed with the Board, and has as one 
        of its missions the responsibility to study and report on 
        issues of importance to the civil service system. The Board's 
        workload is diverse and includes a sufficient variety of both 
        highly complex cases and high-volume less complex cases to 
        adequately test and evaluate broader use of alternative dispute 
        resolution techniques. It has an experienced corps of 
        administrative judges who are already familiar with traditional 
        settlement techniques.
    (c) Purposes.--The Board shall evaluate the alternative dispute 
resolution pilot program and, after the completion of the 3-year 
program, shall file a comprehensive report with the President and 
Congress.

SEC. 2. MERIT SYSTEMS PROTECTION BOARD ALTERNATIVE DISPUTE RESOLUTION 
              PILOT PROGRAM.

    (a) Amendment to Chapter 12 of Title 5.--Chapter 12 of title 5, 
United States Code, is amended by adding immediately after section 1206 
the following:
``Sec. 1207. Establishment of alternative dispute resolution program
    ``(a) In General.--
            ``(1) The Merit Systems Protection Board is authorized to 
        establish a 3-year program to provide employees and agencies 
        with alternative dispute resolution processes to apply to 
        workplace disputes and disagreements involving removals, 
        suspensions for more than 14 days, and other adverse actions 
        under section 7512.
            ``(2) The Board shall test and evaluate a variety of 
        alternative dispute resolution techniques, which may include--
                    ``(A) settlement judges or attorneys;
                    ``(B) mediation through use of shared neutrals;
                    ``(C) mediation by Merit Systems Protection Board 
                staff or others as appointed by the Chairman;
                    ``(D) administrative arbitration; and
                    ``(E) certified alternative dispute resolution 
                counselors (agency personnel specifically trained in 
                Board law and alternative dispute resolution 
                techniques).
    ``(b) Early Intervention Alternative Dispute Resolution.--
            ``(1) Invoking resolution process.--The Board's early 
        intervention alternative dispute resolution process may be 
        invoked after an agency has issued a notice letter of a 
        proposed action to an employee but before a final decision has 
        been made under section 7513.
            ``(2) Early intervention.--Any agency or employee may seek 
        early intervention alternative dispute resolution from the 
        Board by filing a request with the Board. If the Board 
        determines that alternative dispute resolution is appropriate, 
        the parties shall participate.
            ``(3) Mandatory resolution.--The Chairman of the Merit 
        Systems Protection Board is authorized to designate up to 3 
        agencies with a substantial volume of Board appeals for 
        participation in a mandatory early intervention alternative 
        dispute resolution program. Under this alternative dispute 
        resolution process, all matters appealable under section 7512 
        shall be subject to early intervention alternative dispute 
        resolution unless the Board determines that the matter is not 
        appropriate for the program or a statute or collective 
        bargaining agreement precludes inclusion of the matter in the 
        alternative dispute resolution program.
    ``(c) Alternative Dispute Resolution After an Appeal or Petition 
for Review Is Filed.--
            ``(1) Appeal or petition for review.--Once an appeal or 
        petition for review is filed with the Board, any employee or 
        agency may request that a case be selected for alternative 
        dispute resolution. The request shall be filed with the 
        administrative judge assigned to the appeal or with the Clerk 
        of the Board if the matter is before the Board on petition for 
        review at the same time that the appeal or petition for review 
        is filed.
            ``(2) Selection of cases.--The Board shall have sole 
        authority to select cases for alternative dispute resolution 
        after an appeal or petition for review is filed. The Board may 
        also select cases for alternative dispute resolution as it 
        determines appropriate.
    ``(d) 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 alternative dispute 
                resolution is to be used;
                    ``(B) take such actions as may be necessary, 
                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 alternative dispute resolution 
                process.
            ``(2) Extension.--A party may request an extension of the 
        alternative dispute resolution period, or the Board may extend 
        the time period as it finds appropriate.
            ``(3) Recruitment.--The Chairman of the Merit Systems 
        Protection Board may recruit and hire temporary staff or 
        contractors to carry out this section.
            ``(4) Regulations.--The Board is authorized to prescribe 
        such regulations as may be necessary to implement the 
        alternative dispute resolution program.
    ``(e) Evaluation.--
            ``(1) Criteria.--The Board's Office of Policy and 
        Evaluation shall establish criteria for evaluating the 
        alternative dispute resolution program and prepare a report 
        containing findings and recommendations as to whether mandatory 
        alternative dispute resolution is desirable, effective, and 
        appropriate for cases decided by Federal administrative 
        agencies under proceedings governed by chapters 5 and 7.
            ``(2) Report content.--The report shall include--
                    ``(A) the number of cases subject to the 
                alternative dispute resolution program, the agencies 
                involved, the results, and the resources expended;
                    ``(B) a comprehensive analysis of the effectiveness 
                of the program, including whether it is cost-effective;
                    ``(C) a survey of the satisfaction of participants; 
                and
                    ``(D) a recommendation regarding the desirability 
                of extending the alternative dispute resolution program 
                beyond the prescribed expiration date and any 
                recommended changes.
            ``(3) Report date.--The report shall be submitted to the 
        President and the Congress 180 days following the close of the 
        alternative dispute resolution program.''.
    (b) Appropriations.--
            (1) In general.--For the purpose of carrying out the 
        alternative dispute resolution program established by the 
        amendment made by subsection (a), there are authorized to be 
        appropriated the following sums: $1,000,000 for fiscal year 
        2000; $1,000,000 adjusted by the most recent percentage change 
        in the employment cost index (ECI) for fiscal year 2001; and 
        $1,000,000 adjusted by the most recent percentage change in the 
        ECI for fiscal year 2002.
            (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 date of 
enactment of appropriations authorized by subsection (b)(1) for fiscal 
year 2000 and shall remain in effect for 3 years from the effective 
date.
    (d) Conforming Amendment.--The table of sections for subchapter I 
of chapter 12 of title 5, United States Code, is amended by adding 
after the item relating to section 1206 the following new item:

``1207. Establishment of alternative dispute resolution program.''.

SEC. 3. POLICY AND FINDINGS.

    (a) Policy.--Chapter 53 of title 5, United States Code, is amended 
to establish an MSPB Administrative Judge Pay Schedule and to provide 
MSPB administrative judges with pay that is comparable to that of 
immigration judges (IJs) and administrative law judges (ALJs).
    (b) Findings.--The Congress finds that--
            (1) MSPB administrative judges perform work at the same 
        level of importance and complexity as immigration judges and 
        administrative law judges. Federal employees deserve to have 
        their cases heard by judges with the same pay and status as the 
        judges who hear private sector benefits and employment law 
        cases. Veterans in the Federal workforce deserve to have their 
        cases heard by judges with the same pay and status as the 
        judges who hear cases involving illegal aliens.
            (2) MSPB administrative judges are leaving the Board for 
        positions with other adjudicatory agencies. During the past 4 
        years, the Board has lost 20 percent of its most experienced 
        judges to other adjudicatory agencies. MSPB administrative 
        judges should not have to leave the agency to achieve the pay 
        and status they deserve when they are adjudicating cases with 
        the same importance and complexity as cases heard by IJs and 
        ALJs.

SEC. 4. MERIT SYSTEMS PROTECTION BOARD ADMINISTRATIVE JUDGES AND 
              COMPENSATION.

    (a) Amendment to Chapter 53 of Title 5.--Chapter 53 of title 5, 
United States Code, is amended by adding immediately after section 
5372a the following:
``Sec. 5372b. Merit Systems Protection Board administrative judges
    ``(a) Definitions.--For the purposes of this section--
            ``(1) the term `administrative judge (AJ)' means an 
        employee of the Merit Systems Protection Board appointed to an 
        administrative judge position and paid under the MSPB 
        Administrative Judge Schedule established by subsection (b); 
        and
            ``(2) the term `administrative judge (GS)' means an 
        employee of the Merit Systems Protection Board appointed to an 
        administrative judge position and paid under the General 
        Schedule described in section 5332 of this title.
    ``(b) In General.--There is established the MSPB Administrative 
Judge Pay Schedule which shall have 4 levels of pay, designated as AJ-
1, -2, -3, and -4. Each administrative judge (AJ) shall be paid at one 
of those levels in accordance with subsection (c).
    ``(c) Rates of Pay.--
            ``(1) Basic pay.--The rates of basic pay for the levels of 
        the MSPB Administrative Judge Pay Schedule established by the 
        subsection (b) shall be as follows:
                    ``(A) AJ-1: 70 percent of the next to highest rate 
                of basic pay for the Senior Executive Service.
                    ``(B) AJ-2: 80 percent of the next to highest rate 
                of basic pay for the Senior Executive Service.
                    ``(C) AJ-3: 90 percent of the next to highest rate 
                of basic pay for the Senior Executive Service.
                    ``(D) AJ-4: 92 percent of the next to highest rate 
                of basic pay for the Senior Executive Service.
            ``(2) Locality pay.--Locality pay as provided by section 
        5304 shall be applied to the basic pay for administrative 
        judges (AJ) paid under the MSPB Administrative Judge Pay 
        Schedule.
    ``(d) Appointment and Advancement.--
            ``(1) Initial appointment.--Except as provided in paragraph 
        (3), initial appointment of an administrative judge (AJ) shall 
        be at the AJ-1 pay level. Subject to subsection (d)(2), an 
        administrative judge (AJ) shall be advanced to AJ-2 upon 
        completion of 104 weeks of service, to AJ-3 upon completion of 
        104 weeks of service at the next lower level, and to AJ-4 upon 
        completion of 52 weeks of service at the next lower level.
            ``(2) Advancement.--Advancement to the AJ-2, -3, and -4 
        levels as provided by paragraph (1) shall not be effected if 
        the Chairman of the Merit Systems Protection Board determines 
        that the work of an administrative judge (AJ) at the next lower 
        level is not of an acceptable level of competence. An 
        administrative judge (AJ) may appeal an adverse acceptable 
        level of competence determination to the Merit Systems 
        Protection Board under the same conditions by which an 
        administrative judge (GS) may appeal the denial of a periodic 
        step increase in pay under section 5335(c).
            ``(3) Exception.--Notwithstanding paragraph (1), the 
        Chairman of the Merit Systems Protection Board may provide for 
        initial appointment of an administrative judge (AJ) at a level 
        higher than AJ-1 under such circumstances as the Chairman may 
        determine appropriate.
            ``(4) Conversion.--An administrative judge (GS), who 
        occupies a level below grade 15 of the General Schedule, may, 
        when entitled by tenure and performance to be advanced to grade 
        15 of the General Schedule, be converted to the MSPB 
        Administrative Judge Pay Schedule and appointed at the AJ-1 
        level.''.
    (b) Transition Provisions.--
            (1) Conversion to mspb administrative judge pay schedule.--
        Subject to paragraphs (2) and (3), an administrative judge (GS) 
        who is serving as of the effective date of this section and who 
        occupies the grade 15 level of the General Schedule shall be 
        converted to the MSPB Administrative Judge Pay Schedule and 
        appointed as an administrative judge (AJ). Each administrative 
        judge (AJ) so converted shall be placed in the appropriate pay 
        level prescribed under section 5372(c) of title 5, United 
        States Code, as added by subsection (a), based on the amount of 
        time the administrative judge (AJ) has served as an 
        administrative judge (GS).
            (2) Limitation on conversion.--Conversion of an 
        administrative judge (GS) to administrative judge (AJ) under 
paragraph (1) shall not be effected if the Chairman of the Merit 
Systems Protection Board determines that the work of an administrative 
judge (GS) at the grade 15 level of the General Schedule is not of an 
acceptable level of competence. An administrative judge (AJ) may appeal 
an adverse acceptable level of competence determination to the Merit 
Systems Protection Board under the same conditions by which an 
administrative judge (GS) may appeal the denial of a periodic step 
increase in pay under section 5335(c).
            (3) Limitation on pay increases.--Notwithstanding the rates 
        of basic pay prescribed under section 5372(c) of title 5, 
        United States Code, as added by subsection (a), the Chairman of 
        the Merit Systems Protection Board may, on the effective date 
        of this section and each year for a period of 7 years 
        thereafter, limit the pay increase for each administrative 
        judge (AJ) to an adjustment equal to--
                    (A) the percentage pay adjustment received by 
                members of the Senior Executive Service under section 
                5382(c) of this title, if any;
                    (B) locality pay under section 5304; and
                    (C) an additional $3,000.
        The Senior Executive Service percentage pay adjustment, if any, 
        shall be included in basic pay. Annual adjustments in pay after 
        the effective date of this section will be made on the first 
        day of the first pay period of each calendar year. The 
        limitation on pay increases under this subsection may continue 
        during the time period prescribed by this subsection until such 
        time as the pay of each administrative judge (AJ) reaches the 
        appropriate rate of basic pay under section 5372b(c) of title 
        5, United States Code, as added by subsection (a). The Chairman 
        may waive any limitation on pay under this subsection in the 
        case of an administrative judge (AJ) serving as a chief 
        administrative judge.
            (4) Pay in relation to grade 15 of the general schedule.--
        In no case shall an administrative judge (AJ) who is converted 
        in accordance with paragraph (1), or whose pay increase in any 
        year is limited under paragraph (3), be paid after the 
        effective date of this section at a rate that is less than the 
        adminstrative judge's (AJ) rate of pay would have been had the 
        administrative judge (AJ) remained as an administrative judge 
        (GS) occupying the grade 15 level of the General Schedule.
            (5) Definitions.--For purposes of this subsection--
                    (A) the term ``administrative judge (AJ)'' means an 
                employee of the Merit Systems Protection Board 
                appointed to an administrative judge position and paid 
                under the MSPB Administrative Judge schedule 
                established by the amendment made by subsection (a); 
                and
                    (B) the term ``administrative judge (GS)'' means an 
                employee of the Merit Systems Protection Board 
                appointed to an administrative judge position and paid 
                under the General Schedule described in section 5332 of 
                this title.
    (c) Appropriations.--
            (1) In general.--There are authorized to be appropriated 
        such sums as are necessary for the purpose of carrying out this 
        section.
            (2) No reduction.--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 of title 5, United States 
        Code.
    (d) Effective Date.--This section shall take effect on the first 
day of the first pay period of the calendar year immediately following 
the date of enactment of appropriations authorized by subsection 
(c)(1).
    (e) Conforming Amendment.--The table of sections for subchapter VII 
of chapter 53 of title 5, United States Code, is amended by adding 
after the item relating to section 5372a the following new item:

``5372b. Merit Systems Protection Board administrative judges.''.
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