[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>