[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3312 Engrossed in House (EH)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
106th CONGRESS
  2d Session
                                H. R. 3312

_______________________________________________________________________

                                 AN ACT


 
    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.

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

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.''.

SEC. 4. MERIT SYSTEMS PROTECTION BOARD ADMINISTRATIVE JUDGES.

    (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, AJ-2, AJ-3, and AJ-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 
        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 
        (5), an initial appointment of an administrative judge (AJ) to 
        the AJ pay schedule shall be at the AJ-1 level.
            ``(2) Conversion to mspb administrative judge pay 
        schedule.--An administrative judge (GS) who is serving as of 
        the effective date of this section shall be eligible for 
        conversion to the MSPB Administrative Judge Pay Schedule and 
        appointment as an administrative judge (AJ) in accordance with 
        subparagraph (A), (B), or (C) below:
                    ``(A) If the administrative judge (GS) occupies a 
                position at the grade 15 level of the General Schedule 
                and has served for 3 or more years as of the effective 
                date of this section, the judge shall be converted to 
                the MSPB Administrative Judge Pay Schedule and 
                appointed as an administrative judge (AJ) on the 
                effective date of this section so long as the judge's 
                last 3 performance appraisals of record are at the 
                `exceeds fully successful' level or higher. An 
                administrative judge (AJ) so converted shall be placed 
                in the appropriate pay level prescribed in paragraph 
                (3), based on the amount of time the administrative 
                judge (AJ) has served as an administrative judge (GS).
                    ``(B) If the administrative judge (GS) occupies a 
                position at the grade 15 level of the General Schedule 
                and has served for less than 3 years as of the 
                effective date of this section, the judge shall be 
                converted to the MSPB Administrative Judge Pay Schedule 
                and appointed as an administrative judge (AJ) on the 
                date the judge completes 3 years of service at the 
                grade 15 level so long as the judge's overall 
                performance appraisal ratings for the 3-year period are 
                at the `exceeds fully successful' level or higher.
                    ``(C) If the administrative judge (GS) occupies a 
                position at a level below grade 15 of the General 
                Schedule on the effective date of this section and is 
                subsequently advanced to grade 15 of the General 
                Schedule, the judge shall, after serving for 3 years at 
                the grade 15 level, be converted to the MSPB 
                Administrative Judge Pay Schedule and appointed as an 
                administrative judge (AJ) so long as the judge's 
                overall performance appraisal ratings for the 3-year 
                period at the grade 15 level are at the `exceeds fully 
                successful' level or higher.
            ``(3) Advancement.--An administrative judge (AJ) shall be 
        advanced to the AJ-2 pay level upon completion of 104 weeks of 
        service with an appraisal rating for such weeks at the `exceeds 
        fully successful' level or higher, to the AJ-3 pay level upon 
        completion of 104 weeks of service at the next lower level with 
        an appraisal rating for such weeks at the `exceeds fully 
        successful' level or higher, and to the AJ-4 pay level upon 
        completion of 52 weeks of service at the next lower level so 
        long as the judge's overall performance appraisal ratings for 
        the period are at the `exceeds fully successful' level or 
        higher.
            ``(4) Review board.--If at any time the MSPB establishes a 
        pass-fail or other performance appraisal system that does not 
        include an overall performance appraisal rating of `exceeds 
        fully successful', upon completion of the applicable qualifying 
        time-in-service requirement and receipt of a `pass' or 
        equivalent performance appraisal rating for the 3 most recent 
        rating periods, an administrative judge (AJ) shall be eligible 
        for consideration to advancement to the next pay level subject 
        to the approval of a review board made up of senior MSPB 
        officials, as designated by the Chairman.
            ``(5) Exceptions.--
                    ``(A) 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.
                    ``(B) Notwithstanding paragraph (2), the Chairman 
                of the Merit Systems Protection Board may, in 
                exceptional cases, provide for the conversion of an 
                administrative judge (GS) to the MSPB Administrative 
                Judge Pay Schedule under such circumstances as the 
                Chairman may determine appropriate.''.
    (b) Transition Provisions.--
            (1) Limitation on pay increases.--Notwithstanding the rates 
        of basic pay prescribed under section 5372b(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.
            (2) Pay in relation to grade 15 of the general schedule.--
        In no case shall an administrative judge (AJ) who is converted 
        in accordance with section 5372b(d)(2) of title 5, United 
        States Code, or whose pay increase in any year is limited under 
        paragraph (1), be paid after the effective date of this section 
        at a rate that is less than the administrative 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.
            (3) 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 Pay 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 
                title 5, United States Code.
    (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.''.

            Passed the House of Representatives October 24, 2000.

            Attest:

                                                                 Clerk.
106th CONGRESS

  2d Session

                               H. R. 3312

_______________________________________________________________________

                                 AN ACT

    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.