[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1965 Introduced in House (IH)]
107th CONGRESS
1st Session
H. R. 1965
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 for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 23, 2001
Mr. Gekas introduced the following bill; which was referred to the
Committee on Government Reform, and in addition to the Committee on the
Judiciary, for a period to be subsequently determined by the Speaker,
in each case for consideration of such provisions as fall witin the
jurisdiction of the committee concerned
_______________________________________________________________________
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, and for
other purposes.
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 2001''.
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) Modified Pay System for Administrative Judges.--
(1) In general.--Subchapter VII of chapter 53 of title 5,
United States Code, is amended by inserting after section 5372b
the following:
``Sec. 5372c. Administrative judges of the Merit Systems Protection
Board
``(a) Definitions.--For purposes of this section--
``(1) the term `Board' means the Merit Systems Protection
Board;
``(2) the term `administrative judge' means an employee of
the Board who is authorized by the Board to hold a hearing or
to decide a case without a hearing, but does not include--
``(A) an administrative law judge appointed under
section 3105;
``(B) a member of the Board under section 1201; or
``(C) an individual appointed on other than a
permanent basis;
``(3) the term `Chairman' means the Chairman of the Board
(as described in section 1203(a)); and
``(4) the terms `pay locality' and `comparability payment'
have the meanings given them by section 5302.
``(b) Pay Schedule for Administrative Judges.--
``(1) In general.--There shall be 4 rates of basic pay
(designated as AJ-1, 2, 3, and 4, respectively) for
administrative judges, and each administrative judge shall be
paid at 1 of those rates in accordance with the provisions of
this section.
``(2) Rates.--
``(A) In general.--The 4 rates of basic pay
referred to in paragraph (1) shall be as follows:
The rate is equal to the
``For:
following percentage of the
rate described in subparagraph (B):
AJ-1............................................... 70.
AJ-2............................................... 80.
AJ-3............................................... 90.
AJ-4............................................... 92.
``(B) Rate described.--The rate described in this
subparagraph is the rate of basic pay (including any
comparability payment) payable to a member of the
Senior Executive Service who--
``(i) is being paid at the second highest
rate of basic pay established under section
5382; and
``(ii) holds a position, in or under the
Board, within the pay locality of the
administrative judge involved.
``(c) Initial Appointment and Advancement.--
``(1) Initial appointment.--A new appointment to an
administrative judge position shall be made at the AJ-1 rate.
However, under regulations prescribed by the Chairman which
provide for such considerations as the existing pay or
unusually high or unique qualifications of an individual, or a
special need of the Board for an individual's services, the
Chairman may (instead of the rate that would otherwise apply
under the preceding sentence) fix that individual's pay at such
higher rate (under subsection (b)) as the Chairman considers
appropriate.
``(2) Advancement.--An administrative judge who has not
reached the highest rate under subsection (b) shall be advanced
in pay successively to the next higher rate following the
completion of--
``(A) 104 weeks of service at the AJ-1 rate,
``(B) 104 weeks of service at the AJ-2 rate, and
``(C) 52 weeks of service at the AJ-3 rate,
subject to the condition that the work of the judge exceeds the
fully successful level throughout the period involved (as
determined based on the judge's performance appraisals of
record over such period).
``(3) Review board.--If paragraph (2) cannot be applied,
due to the adoption of a pass-fail standard or any other
modification in a performance appraisal system, advancement to
the next higher level shall instead occur following--
``(A) completion of the requisite number of weeks
under subparagraph (A), (B), or (C) of paragraph (2)
(as appropriate), subject to the condition that the
work of the judge is of an acceptable level of
competence throughout the period involved (as
determined based on the judge's performance appraisals
of record over such period); and
``(B) approval of such advancement by a review
board (appointed by the Chairman from among senior
employees of the Board), in accordance with such
regulations as the Chairman shall prescribe consistent
with the purposes of this paragraph.
``(d) Regulations.--Any regulations necessary to carry out this
section shall be prescribed by the Chairman.''.
(2) Clerical amendment.--The table of sections for chapter
53 of title 5, United States Code, is amended by inserting
after the item relating to section 5372b the following:
``5372c. Administrative judges of the Merit Systems Protection
Board.''.
(3) Effective date.--Except as provided in a succeeding
provision of this section, the amendments made by this
subsection shall apply only in the case of an individual first
appointed (as an administrative judge) on or after the first
day of the first pay period of the first calendar year
beginning at least 3 months after the date of the enactment of
this Act.
(b) Provisions Relating to Administrative Judges First Appointed
Before Effective Date.--
(1) In general.--An administrative judge who is serving on
the effective date described in subsection (a)(3) (other than a
judge described in subsection (a)(3)) shall remain subject to
the pay provisions that (but for this section) would otherwise
apply, unless and until converted to the pay system established
by section 5372c of title 5, United States Code (as added by
subsection (a)) in accordance with the following:
(A) If, as of such effective date--
(i) the administrative judge would
(disregarding this section) be entitled to be
paid at a rate of pay for grade GS-15 of the
General Schedule, and
(ii) the judge's last 3 performance
appraisals of record (as such a judge) exceed
the fully successful level,
such judge shall, effective as of such date, become
subject to such section 5372c, at the rate that would
then apply if--
(I) such section had been in effect since
the time of such judge's original appointment,
and
(II) advancements had been made (since that
time) in accordance with subsection (c)(2) of
such section (disregarding the matter after
subparagraph (C) thereof).
(B) If, as of such effective date, the
administrative judge--
(i) is entitled to be paid at a rate of pay
for grade GS-15 of the General Schedule, but
(ii) does not satisfy the requirement under
subparagraph (A)(ii),
such judge shall, upon satisfying such requirement
(including, to the extent appropriate, by taking into
account up to the judge's last two performance
appraisals of record), become subject to such section
5372c, effective as of the first day of the first
applicable pay period beginning after the date as of
which such judge satisfies such requirement, at the
same rate as if first appointed on such first day.
(C) If, as of such effective date, the
administrative judge is entitled to be paid at a rate
of pay for a grade below grade GS-15 of the General
Schedule, such judge shall--
(i) upon satisfying the requirement under
subparagraph (A)(ii),
(ii) taking into account only performance
appraisals for service performed, at a rate of
pay for grade GS-15 of the General Schedule, on
or after such effective date,
become subject to such section 5372c, effective as of
the first day of the first applicable pay period
beginning after the date as of which such judge so
satisfies such requirement, at the same rate as if
first appointed on such first day.
(D) If subparagraph (B) or (C) cannot be applied,
due to the adoption of a pass-fail standard or any
other modification in a performance appraisal system,
eligibility for conversion (to the rate specified in
such subparagraph (B) or (C), as appropriate) shall
instead be determined in accordance with procedures
which the Chairman shall by regulation prescribe based
on subsection (c)(3) of such section 5372c.
(2) Reemployment cases.--In the case of an individual who--
(A) is first appointed as an administrative judge
before the effective date described in subsection
(a)(3),
(B) is not serving as an administrative judge on
such effective date, and
(C) becomes reemployed as an administrative judge
after such effective date,
paragraph (1) shall be applied by substituting the date as of
which such individual becomes so reemployed for ``the effective
date described in subsection (a)(3)'' each place it (or any
other reference to such effective date) appears.
(3) Special authorities.--Notwithstanding any other
provision of this section, the Chairman may--
(A) in exceptional cases, provide for the
conversion of an administrative judge to the
appropriate rate for such judge under paragraph (1) or
(2) (as applicable), without regard to any conditions
of eligibility otherwise required for such conversion;
and
(B) in any case described in subparagraph (B) or
(C) of paragraph (1) (or the corresponding case under
paragraph (2)) or a similar case under subparagraph
(A), exercise the authority described in the second
sentence of section 5372c(c)(1) of title 5, United
States Code (as added by subsection (a)), if the
Chairman (in his or her sole discretion) determines
that the circumstances so warrant.
(c) Phase-in Authority.--
(1) In general.--Notwithstanding any other provision of
this section, if the Chairman (in his or her sole discretion)
determines that the circumstances so warrant, the rate of basic
pay payable to an administrative judge converted to the new pay
system pursuant to subsection (b) shall, during the period described in
paragraph (3), be determined in accordance with the following:
(A) Instead of the rate of pay to which otherwise
entitled under section 5372c of title 5, United States
Code (as added by subsection (a)), such individual
shall continue to be paid in accordance with the
provisions of law that would otherwise apply (if this
section had never been enacted), subject to
subparagraph (B).
(B) Instead of any adjustment in pay to which such
individual would otherwise be entitled during such
period under sections 5303 and 5304-5304a of title 5,
United States Code, such individual shall receive (as
of the date the adjustment under such section 5303
would otherwise be scheduled to become effective in the
year involved)--
(i) a percentage adjustment under such
section 5303 equal to the same percentage
adjustment taking effect in such year under
section 5382(c) of such title in the case of a
member of the Senior Executive Service
described in section 5372c(b)(2)(B) of such
title,
(ii) the same comparability payment
(expressed as a percentage) as the percentage
taking effect in such year under sections 5303-
5304a of such title in the case of a member of
the Senior Executive Service described in
section 5372c(b)(2)(B) of such title, and
(iii) an additional $3,000,
not to exceed the limitation under paragraph (4)(B).
(C) The provisions of this subsection shall
continue to apply (in the case of each administrative
judge described in the matter before subparagraph (A))
until such time as--
(i) this subsection terminates in
accordance with paragraph (3); or
(ii) if earlier, the pay for such judge
equals the rate that would then (but for this
subsection) otherwise be payable to such judge
under such section 5372c.
(2) Condition for applicability.--This subsection shall
apply only if the Chairman, not later than 1 month before the
effective date described in subsection (a)(3), determines (by
order published in the Federal Register) that the phase-in
authority under this subsection is necessary.
(3) Duration.--If the Chairman makes a determination under
paragraph (2), this subsection shall apply for the period--
(A) beginning on the effective date described in
subsection (a)(3), and
(B) ending--
(i) at the close of the year in which the
Chairman determines (by order published in the
Federal Register) that the phase-in authority
under this subsection is no longer necessary;
but
(ii) in no event later than at the close of
the 7-year period beginning on the effective
date described in subsection (a)(3).
(4) Limitations.--In no event may the rate of pay of an
administrative judge (described in paragraph (1) in the matter
before subparagraph (A) thereof)--
(A) at any time while this subsection remains in
effect, be less than the rate that would then otherwise
apply if this section had never been enacted; or
(B) be increased, as a result of this subsection,
to a rate higher than would then otherwise apply
pursuant to this section, absent this subsection.
(5) Exception.--The Chairman may at any time provide that
an administrative judge serving as a chief administrative
judge--
(A) be excluded from the application of this
subsection; and
(B) instead be treated as if this subsection had
never been enacted.
(6) Irrevocability.--A determination under paragraph (2),
(3)(B)(i), or (5) shall be irrevocable.
(d) Definitions.--For purposes of this section, the terms
``administrative judge'' and ``Chairman'' have the meanings given them
by section 5372c of title 5, United States Code (as added by subsection
(a)).
<all>