Merit Systems Protection Board: Mission Performance, Employee
Protections, and Working Environment (Letter Report, 08/15/95,
GAO/GGD-95-213).
Pursuant to a congressional request, GAO examined the Merit Systems
Protection Board's (MSPB) performance, management, and operations,
focusing on: (1) whether the MSPB appeals process is effectively
protecting federal employees against improper personnel practices; (2)
the accountability mechanisms MSPB has in place to provide its employees
with merit system protections; and (3) the actions MSPB has taken to
foster an environment of trust, respect, and fairness.
GAO found that: (1) the practitioner groups surveyed generally felt that
MSPB has been fair in processing employee appeals of agency personnel
actions and MSPB is accomplishing its statutory mission; (2) during the
4-year period ending September 1994, 91 percent of the final MSPB
decisions appealed to the U.S. Court of Appeals were upheld; (3) MSPB
regional offices met their 120-day case processing guideline 96 percent
of the time during the same period, while MSPB headquarters met its
110-day guideline 61 percent of the time; (4) the differences in the
timeliness in processing appeals has been due to the complexity of
headquarters' cases; (5) MSPB has established accountability mechanisms
and an equal employment opportunity (EEO) policy to protect its
employees against workplace discrimination, mismanagement, abuse, and
improper personnel practices; (6) two-fifths of MSPB employees surveyed
said they would be reluctant to become involved in the processing of EEO
complaints; and (7) although MSPB has taken a variety of actions to
foster an environment of trust, respect, and fairness, only 29 percent
of survey respondents felt that MSPB has been successful.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: GGD-95-213
TITLE: Merit Systems Protection Board: Mission Performance,
Employee Protections, and Working Environment
DATE: 08/15/95
SUBJECT: Surveys
Federal employees
Personnel management
Employment discrimination
Appellate procedure
Federal personnel law
Independent agencies
Agency missions
Internal controls
Investigations into federal agencies
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Cover
================================================================ COVER
Report to the Ranking Minority Member, Committee on Governmental
Affairs, U.S. Senate
August 1995
MERIT SYSTEMS PROTECTION BOARD -
MISSION PERFORMANCE, EMPLOYEE
PROTECTIONS, AND WORKING
ENVIRONMENT
GAO/GGD-95-213
Merit Systems Protection Board
Abbreviations
=============================================================== ABBREV
EEO - Equal Employment Opportunity
MSPB - Merit Systems Protection Board
NPR - National Performance Review
OGC - Office of the General Counsel
OIG - Office of the Inspector General
OPM - Office of Personnel Management
PFR - petition for review
USDA - U.S. Department of Agriculture
Letter
=============================================================== LETTER
B-249151
August 15, 1995
The Honorable John Glenn
Ranking Minority Member
Committee on Governmental Affairs
United States Senate
Dear Senator Glenn:
This report responds to your request that we examine certain aspects
of the Merit Systems Protection Board's (MSPB) performance,
management, and operations in light of the critical role it plays as
a protector of the federal merit employment system. Specifically,
you asked us to:
assess whether MSPB, through its appeals process, is accomplishing
its statutory mission to protect federal employees against
prohibited personnel practices and abusive personnel decisions
and whether MSPB is abiding by its own guidelines in determining
these cases in a fair and timely manner;
determine what accountability mechanisms MSPB has in place to
provide its employees the merit system protections that MSPB was
created to uphold; and
identify what actions MSPB has taken, and the extent to which it
has been successful, in fostering "an environment of trust,
respect, and fairness," as called for in its 1992 vision
statement pledge to "promote and protect, by deed and example,"
federal merit employment principles.
Your request noted that effective oversight of MSPB is particularly
important and that confirmation of MSPB's current chairman (sworn in
on July 2, 1993) made it a good time for our examination of MSPB to
take place. However, because the current chairman had only recently
taken office when our work began in November 1993, the data we
collected necessarily covered both the early part of his tenure and
the latter part of his predecessor's.
BACKGROUND
------------------------------------------------------------ Letter :1
MSPB is an independent, quasijudicial executive agency created by the
Civil Service Reform Act of 1978. Its mission is to ensure that (1)
federal employees are protected against abuses by their agencies'
management, (2) executive branch agencies make employment decisions
in accordance with merit system principles, and (3) federal merit
systems are kept free of prohibited personnel practices.
In large part, MSPB is to pursue its mission by hearing and deciding
appeals by federal employees of actions taken against them by their
agencies. Initially, an employee files his or her appeal at one of
MSPB's regional or field offices. The appeal is then to be heard and
decided by an administrative judge. The decision becomes final in 35
days unless one of the parties to the appeal files a petition for
review to the board members or MSPB reopens the appeal on its own
motion. In such cases, the petition for review is to be processed at
MSPB headquarters. The board members' decision constitutes the final
administrative action unless the appeal involves allegations of
discrimination, in which case the Equal Employment Opportunity
Commission may become involved. An employee who is dissatisfied with
the board members' final decision may appeal it to the U.S. Court of
Appeals for the Federal Circuit or, if allegations of discrimination
are involved, bring the case before a U.S. district court.
MSPB's three-member bipartisan Board consists of a chairman, a vice
chairman, and a member, all of whom are appointed by the president
with the advice and consent of the Senate to serve overlapping,
nonrenewable 7-year terms.
MSPB's fiscal year 1994 appropriation was $24.7 million. As of the
end of fiscal year 1994, it had 289 employees. Under Public Law
103-424, signed by the president on October 29, 1994, MSPB was
reauthorized for a period of 3 years.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :2
Based on practitioners' views of the appeals process and on the high
rate at which the U.S. Court of Appeals for the Federal Circuit has
affirmed MSPB's final decisions, MSPB is generally accomplishing its
statutory mission. In three of the five practitioner groups we
surveyed--agency general counsels, agency attorneys and
representatives, and agency employee and labor-management relations
representatives--from 83 to 89 percent of the respondents expressed
opinions that MSPB has been very or generally successful in
accomplishing its mission, while from 0 to 2 percent indicated that
it has been very or generally unsuccessful. In the remaining two
practitioner groups, 46 percent of the private attorneys and 45
percent of the union officials expressed opinions that MSPB has been
very or generally successful; 25 percent of the attorneys and 23
percent of the union officials indicated that it has been very or
generally unsuccessful.
The responses from the practitioner groups reflect a general view
that MSPB has been fair in processing employee appeals of agency
personnel actions. MSPB's fairness in processing employee appeals
was further indicated by the fact that over the 4-year period ending
September 1994, 91 percent of the final MSPB decisions appealed to
the U.S. Court of Appeals for the Federal Circuit were upheld; the
remainder were either reversed or returned to MSPB for further
action.
Regarding the timely processing of appeals, over the 4-year period
ending September 1994, the regional offices almost always met MSPB's
self-imposed 120-day case processing guideline (96 percent in fiscal
year 1994). Headquarters met management's 110-day guideline less
often (61 percent in fiscal year 1994), but its performance in this
regard had improved from fiscal years 1991 to 1993. To explain the
fact that headquarters met its case processing guideline less often
than the regional offices, an MSPB official cited the complexity of
cases reaching the petition-for-review stage and the fact that
individual cases may have been kept pending for various reasons.
Moreover, according to MSPB's chairman, management imposed the
110-day guideline at headquarters as a goal to strive toward rather
than as a hard and fast requirement for headquarters staff.
MSPB has established accountability mechanisms in the form of
policies, procedures, and processes to protect its employees against
workplace discrimination, mismanagement, abuse, and improper
personnel practices.\1 To protect its employees against workplace
discrimination, MSPB has established an equal employment opportunity
(EEO) policy and has taken various actions to implement it, such as
providing EEO training opportunities to its supervisors, managers,
and EEO staff and recently instituting an individual performance
evaluation element for diversity. Further, MSPB has established
procedures for handling EEO complaints and has made employees aware
of their rights under these procedures.
In February 1994, MSPB abolished its nonstatutory Office of the
Inspector General (OIG) because of management's concerns about its
effectiveness and efficiency. To provide MSPB employees with an
avenue for reporting their concerns should they become aware of
mismanagement, abuse, or improper personnel practices, MSPB arranged
for hotline and investigative services through the U.S. Department
of Agriculture's (USDA) Inspector General. MSPB also has transferred
its OIG internal oversight functions to its Office of the General
Counsel (OGC). MSPB's arrangements for carrying out these activities
are comparable to those of the 10 other federal entities we
studied;\2 if these arrangements are implemented as planned, MSPB
should be able to comply with federal audit and investigative
requirements. However, because these arrangements have not been
operational very long, it is too early to tell how effective they
will be.
Despite MSPB's provisions for the protection of its employees against
workplace discrimination, mismanagement, abuse, and improper
personnel practices, about two-fifths of the employees responding to
our survey indicated they would be reluctant to become involved in
the process for handling EEO complaints. Slightly over one-half of
the respondents indicated they would be reluctant to report
allegations of wrongdoing. Also, while almost two-thirds of the
respondents described the work environment at MSPB as impartial,
nearly one-fourth of the respondents--mostly women and
minorities--described it as discriminatory. Although these responses
represent perceptions rather than proof of discrimination or
indicators of wrongdoing going unreported, we believe the perceptions
are held by a large enough portion of MSPB's workforce to be of
concern to MSPB, especially in light of its role as protector of the
merit system and the standard it set for itself in its 1992 vision
statement, "To promote and protect, by deed and example, the Federal
merit principles in an environment of trust, respect and fairness."
MSPB officials said that since the agency announced its vision
statement in November 1992, it has taken a variety of actions to
foster an environment of trust, respect, and fairness. But while 29
percent of survey respondents felt MSPB has been successful in
fostering such an environment, 39 percent felt it has been
unsuccessful. MSPB officials believe these responses may have been
affected by the uncertainties associated with the arrival of a new
chairman and management's ensuing efforts to reorganize and
reengineer agency operations.
MSPB employees' views of their work environment are somewhat similar
to those of federal employees in general. The Office of Personnel
Management's (OPM) 1992 survey of nearly 57,000 federal employees
showed that while 44 percent expressed confidence and trust in their
organizations, 26 percent did not; and while 30 percent believed
their organizations treated all employees equally, regardless of
position or rank, 47 percent did not.
--------------------
\1 In addition, MSPB employees' appeals of personnel actions taken
against them, such as removals or reductions in grade, are heard
internally by MSPB's own administrative law judge.
\2 The 10 federal entities were the Federal Retirement Thrift
Investment Board, Inter-American Foundation, Institute of Museum
Services, Federal Mediation and Conciliation Service, National
Transportation Safety Board, National Gallery of Art, Occupational
Safety and Health Review Commission, American Battle Monuments
Commission, State Justice Institute, and U.S. Institute of Peace.
SCOPE AND METHODOLOGY
------------------------------------------------------------ Letter :3
To assess whether MSPB is accomplishing its statutory mission through
the appeals process in a fair and timely manner, we developed a mail
questionnaire to obtain the views of practitioners who had
represented federal employees or agencies before MSPB during the
2-year period ending September 1993 (see app. I). The results of
our survey can be projected to the populations from which the survey
respondents were selected. We analyzed MSPB's case processing
performance reports to determine whether MSPB met its case processing
guidelines at the regional and headquarters levels in fiscal years
1991 through 1994. Additionally, we analyzed data on the extent to
which MSPB's final decisions were appealed to the U.S. Court of
Appeals for the Federal Circuit and the court's disposition of these
appeals.
To determine what accountability mechanisms MSPB had in place to
provide its employees the merit system protections that MSPB was
created to uphold, we reviewed the agency's EEO and internal
oversight activities designed to protect its employees against
workplace discrimination, mismanagement, abuse, and improper
personnel practices. In doing so, we reviewed MSPB's EEO policy,
procedures, and processes and compared its provisions for internal
oversight to those of 10 other federal entities that are roughly
comparable to MSPB in budget and staff size. Further, we developed
and mailed a questionnaire to all MSPB employees as of May 12, 1994,
asking for their views on selected aspects of the agency's EEO
operations and internal oversight activities (see app. II).
To determine what actions MSPB had taken to foster a work environment
that is based on trust, respect, and fairness, we interviewed MSPB's
Chief Operating Officer, EEO director, and members of a task force
charged with proposing actions for implementing MSPB's 1992 vision
statement. Further, our MSPB employee questionnaire asked employees
for their views on how successful their agencies had been in
fostering such an environment (see app. II). We compared MSPB
employees' views of their work environment to those reported by
federal employees in a 1992 OPM governmentwide survey.
More information on our scope and methodology is presented in
appendix III.
MSPB's chairman provided us written comments on a draft of this
report by letter dated July 14, 1995. A summary of his comments is
presented on page 19, and they are reprinted in their entirety in
appendix VI.
We did our review between November 1993 and January 1995. It was
done in the Washington, D.C., area in accordance with generally
accepted government auditing standards.
MSPB IS GENERALLY ACCOMPLISHING
ITS STATUTORY MISSION
------------------------------------------------------------ Letter :4
In each of the practitioner groups we surveyed, the percentage of
respondents who expressed the opinion that MSPB has been successful
in accomplishing its mission was higher than the percentage who
indicated that it has not been successful. As shown in table 1, the
percentages varied among the practitioner groups. For example, the
responses from agency general counsels were the most favorable: 89
percent of the general counsels responding to our survey believed
MSPB has been very or generally successful in accomplishing its
mission; none of these respondents believed MSPB has been very or
generally unsuccessful. By comparison, the responses from union
officials were the least favorable: 45 percent of the union
officials expressing an opinion indicated that MSPB has been very or
generally successful in accomplishing its mission, while 23 percent
indicated that it has been very or generally unsuccessful.
Table 1
Participants' Opinions on How Successful
MSPB Has Been in Accomplishing its
Mission Through the Appeals Process
Very or As Very or
generall successful generall
y as y Number
Participant successf unsuccessf unsucces expressing
group ul ul sful an opinion
---------------- -------- ---------- -------- ----------
Agency general 89 11 0 35
counsels
Agency attorneys 86 12 2 344
and
representatives
Agency employee 83 17 0 30
and labor-
management
relations
representatives
Private 46 28 25 102
attorneys
Union officials 45 32 23 66
------------------------------------------------------------
\a The percentages do not always total 100 due to rounding.
Source: GAO's Survey on MSPB's Appellate Process.
The responses from the practitioner groups reflect a general view
that MSPB has been fair in processing federal employee appeals at the
regional and headquarters levels. As shown in table 2, the
percentage of respondents who indicated that MSPB's appellate process
at the regional level was almost always or generally fair ranged from
a high of 93 percent among agency general counsels to a low of 59
percent among union officials. The percentage of respondents who
viewed the process at the regional level as very or generally unfair
ranged from a low of 0 percent among agency general counsels and
employee and labor-management relations representatives to a high of
26 percent among union officials.
Table 2
Participants' Opinions on the Fairness
of the Appeals Process at the Regional
Office Level
Almost
always Number
or Fair as Very or expressi
generall often as generall ng an
Participant group y fair unfair y unfair opinion
-------------------- -------- -------- -------- --------
Agency general 93 8 0 40
counsels
Agency attorneys and 91 8 1 359
representatives
Agency employee and 85 15 0 27
labor-management
relations
representatives
Private attorneys 63 17 20 127
Union officials 59 15 26 74
------------------------------------------------------------
\a The percentages do not always total 100 due to rounding.
Source: GAO's Survey on MSPB's Appellate Process.
As for the fairness of MSPB's appellate process at the headquarters
level, table 3 shows that the percentage of respondents indicating
that the process was almost always or generally fair ranged from a
high of 95 percent among employee and labor-management relations
representatives to a low of 46 percent among private attorneys. The
percentage of respondents indicating that the appellate process at
the headquarters level was very or generally unfair ranged from a low
of 0 percent among agency general counsels to a high of 29 percent
among private attorneys.
Table 3
Participants' Opinions on the Fairness
of the Appeals Process at the
Headquarters Level
Almost
always Number
or Fair as Very or expressi
generall often as generall ng an
Participant group y fair unfair y unfair opinion
-------------------- -------- -------- -------- --------
Agency general 87 13 0 31
counsels
Agency attorneys and 90 7 3 224
representatives
Agency employee and 95 0 5 21
labor-management
relations
representatives
Private attorneys 46 25 29 69
Union officials 81 6 13 31
------------------------------------------------------------
Source: GAO's Survey on MSPB's Appellate Process.
Another measure of MSPB's fairness in processing employee appeals is
the rate at which the U.S. Court of Appeals for the Federal Circuit
has affirmed MSPB's final decisions. As shown in table 4, during the
4-year period ending September 1994, 1,422 MSPB final decisions were
appealed to the court and adjudicated on the merits. Of that amount,
1,287 cases (91 percent) were affirmed, while 116 cases (8 percent)
were either reversed (3 percent) or remanded (5 percent) to MSPB for
further processing.
Table 4
Dispositions of MSPB Decisions Reviewed
and Adjudicated by the Court of Appeals
for the Federal Circuit for the Period
of FY 1991 Through FY 1994
Di
sp
os
it
io Percen Percen Percen Percen Percen
n Number t Number t Number t Number t Number t
-- ------ ------ ------ ------ ------ ------ ------ ------ ------ ------
Af 196 91 409 94 370 90 312 86 1,287 91
f
i
r
m
e
d
Bo 0 0 5 1 9 2 11 3 25 2
a
r
d
i
n
i
t
i
a
t
e
d
r
e
m
a
n
d
\
a
Co 6 3 11 3 10 2 14 4 41 3
u
r
t
i
n
i
t
i
a
t
e
d
r
e
m
a
n
d
\
b
Re 4 2 7 2 22 5 17 5 50 3
v
e
r
s
e
d
Ot 9 4 1 <1 0 0 9 2 19 1
h
e
r
\
c
==================================================================================
To 215 100 433 100 411 99\d 363 100 1,422 100
t
a
l
c
a
s
e
s
----------------------------------------------------------------------------------
\a A case was returned to MSPB by the U.S. Court of Appeals for the
Federal Circuit after MSPB requested additional processing of the
case.
\b A case was returned to MSPB by the U.S. Court of Appeals for the
Federal Circuit for further action.
\c This category includes court-vacated or summary decisions.
\d This percentage does not total 100 due to rounding.
Source: GAO's analysis of MSPB's Case Management System data.
According to a recognized expert on the administrative redress system
for federal employees, the affirmation rate of MSPB's decisions by
the U.S. Court of Appeals for the Federal Circuit is much higher
than the rate at which other federal circuits affirm the decisions of
other federal administrative tribunals.\3
Guidelines for the length of time MSPB should take to process cases
differ at the regional and headquarters levels. Guidelines at the
regional level stipulate that cases be processed in no more than 120
days. This guideline was imposed by MSPB itself and is identical to
the time limit in the statute (5 U.S.C. 7702(a)(1)) requiring MSPB
to decide appeals that involve allegations of discrimination within
120 days of the filing of the appeal. At the headquarters level,
cases are to be processed within 110 days. This guideline also is
self-imposed; the chairman explained that the 110-day guideline at
the headquarters level represents a goal to strive toward rather than
a hard and fast requirement for processing petitions for review
(PFR). Further, MSPB's written policy states that "it will attempt
to complete action on petitions for review of initial decisions
within 110 days."
Over the 4-year period ending September 1994, the regional offices
took an average of 78 days to process initial employee appeals and
almost always met their 120-day case processing guideline. Most
survey respondents were either very satisfied or generally satisfied
with the actual amount of time MSPB took to process cases at the
regional level (see app. I, question 22). Satisfaction with actual
processing time ranged from 87 percent for employee and
labor-management relations representatives to 67 percent for agency
general counsels. Dissatisfaction with processing time among the
five practitioner groups ranged from a high of 18 percent for agency
general counsels to a low of 7 percent for agency attorneys and
representatives. As shown in table 5, of the initial appeals
processed at the regional office level in fiscal years 1991 through
1994, 3 percent, on average, were not processed within the 120-day
guideline.
Table 5
Timeliness of Processing Initial Appeals
at the Regional Office Level for the
Period of FY 1991 Through FY 1994
Number More Overal
cases 0- 31- 61- 91- than l
process 30 60 90 120 120 averag
Fiscal year ed days days days days days e days
----------- ------- ---- ---- ---- ----- ----- ------
1991 7,525 8 29 28 34 1 74
1992 7,293 8 26 27 37 3 78
1993 6,861 8 25 26 37 4 79
1994 7,530 8 24 26 38 4 81
Cumulative 29,209 8 26 27 37 3 78
results,
1991-1994
------------------------------------------------------------
\a The percentages do not always total 100 due to rounding.
Source: GAO's analysis of MSPB's Case Management System data.
During the same 4-year period, headquarters took an average of 170
days to process PFR cases. Although headquarters met its guideline
less often than the regional offices met theirs, its processing time
had been improving until fiscal year 1994. Most survey respondents
were very or generally satisfied with the actual processing time at
headquarters (see app. I, question 26). Satisfaction with actual
processing time ranged from 68 percent for the agency attorneys and
representatives to 44 percent for agency general counsels.
Dissatisfaction among the five practitioner groups with actual
processing time at the headquarters level ranged from a high of 31
percent for private attorneys and agency general counsels to a low of
20 percent for agency attorneys and representatives. As shown in
table 6, the percentage of PFR cases processed within the 110-day
guideline at the headquarters level over the 4-year period steadily
increased from 52 percent in fiscal year 1991 to 78 percent in fiscal
year 1993, but it dropped to 61 percent in fiscal year 1994.
Table 6
Timeliness of Headquarters' Processing
of PFRs on Merit Cases for the Period of
FY 1991 Through FY 1994
Number
of More
cases 111- 151- than Overall
Fiscal process 0-110 150 240 240 average
year ed days days days days days
---------- ------- ------ ------ ------ ------ -------
1991 1,503 52 14 10 25 220
1992 1,612 70 5 8 17 165
1993 1,317 78 7 4 11 131
1994 1,696 61 11 9 19 162
Cumulative 6,128 65 9 8 18 170
results,
1991-
1994
------------------------------------------------------------
\a The percentages do not always total 100 due to rounding.
Source: GAO's analysis of MSPB's Case Management System data.
According to an MSPB headquarters official, the decline during 1994
in the percentage of PFR cases decided within 110 days was caused by
an increase in workload due to Postal Service reorganization cases.\4
Also, the chairman cited two additional reasons for the drop in the
fiscal year 1994 PFR processing time: a conscious effort by
headquarters to reduce the backlog of PFR cases over 1 year old and a
decrease in staff occurring simultaneously with an increase in PFR
caseload.
In explaining the generally longer headquarters processing times, an
MSPB official cited the complexity of cases reaching the PFR stage
and the fact that individual cases may have been kept pending for
various reasons, such as related cases being held to allow MSPB to
decide a lead case. Also, cases have been held because they involved
issues under consideration by the courts or because the contending
parties failed to provide necessary information within the 110-day
period. Further, according to the MSPB official, complex cases
occasionally take more than 110 days because they require more time
for research, analysis, and drafting, and for a majority of the board
members to agree on a decision.
MSPB recently expanded its commitment to improving the appellate
process by further encouraging the settlement of appeals. In June
1994, in accordance with National Performance Review (NPR)
recommendations encouraging the use of alternative dispute resolution
techniques, MSPB established a program to help parties resolve their
disputes at the PFR level. From June 1994 through the end of
September 1994, MSPB headquarters settlement attorneys attempted to
settle 52 cases and succeeded in settling 17 cases--a success rate of
33 percent. MSPB is considering doing a comprehensive assessment of
the PFR settlement program after more time has passed.
--------------------
\3 Peter B. Broida, A Guide to Merit Systems Protection Board Law
and Practice, 1979-1992 (Arlington, VA: Dewey Publications, Inc.),
page 2,118.
\4 In effecting a major restructuring in late 1992, the U.S. Postal
Service abolished thousands of management positions, moved several
thousand employees to lower graded positions, and offered buyouts as
an inducement to employees to retire. The Postal Service maintained
that the restructuring was not a reduction in force and that
personnel actions taken in the course of the restructuring,
therefore, were not appealable to MSPB. By the end of fiscal year
1993, however, MSPB had received a total of 277 appeals of actions
resulting from the Postal Service reorganization.
MSPB HAS EEO AND INTERNAL
OVERSIGHT PROCESSES TO PROTECT
ITS EMPLOYEES, BUT SOME
EMPLOYEES EXPRESSED CONCERNS
ABOUT PARTICIPATING IN THESE
PROCESSES
------------------------------------------------------------ Letter :5
MSPB has established accountability mechanisms in the form of
policies, procedures, and processes to protect its employees against
workplace discrimination, mismanagement, abuse, and improper
personnel practices. MSPB has established an EEO policy and has
taken various actions to implement it. The agency also has
established new internal oversight arrangements in lieu of the
nonstatutory OIG it abolished in February 1994. Despite these
actions, a substantial number of employees expressed concerns about
participating in the processes for handling EEO complaints and for
reporting allegations of wrongdoing.
MSPB'S EEO POLICY AND ITS
IMPLEMENTATION
---------------------------------------------------------- Letter :5.1
MSPB's EEO policy is to provide equal opportunity to all persons and
to prohibit discrimination because of race, color, sex, age,
religion, national origin, or handicapping condition. In addition,
its written policy prohibits reprisals against individuals who file a
discrimination complaint; testify, assist, or participate in any
manner in an investigation, proceeding, or hearing; or oppose a
practice prohibited by Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act, the Equal Pay Act, or the
Rehabilitation Act. To facilitate implementation of its EEO policy,
MSPB has (1) provided EEO training opportunities to supervisors,
managers, and EEO staff; (2) evaluated supervisors and managers and
rewarded some for their EEO performance; and (3) taken steps to
inform employees about the EEO complaint process and their rights
under it.
MSPB's EEO manual, distributed in April 1994, states that "as part of
its commitment to equal opportunity in all management actions and
decisions, training will be given to managers, supervisors and other
personnel as a way of furthering EEO objectives." According to an
MSPB official, all office directors, managers, and supervisors are
responsible for identifying and obtaining the necessary EEO training
for themselves, and the EEO director is responsible for ensuring that
EEO counselors are knowledgeable of current federal EEO rules and
regulations. MSPB training data provided to us showed that during
the 2-year period ending September 1993, MSPB managers and
supervisors were provided opportunities for training and were
encouraged to attend various internal and external EEO training
courses. The MSPB training data also showed that 10 of MSPB's 21 EEO
staff, which consists of 2 full-time staff and 19 collateral- duty
staff (mostly EEO counselors) received some type of EEO training
during the 2-year period.
In November 1993, the chairman informed MSPB employees of his strong
commitment to diversity and equitable treatment in the workplace. To
demonstrate his commitment, he established a new performance element
under which to review and evaluate employees' performance in valuing
and respecting diversity in the workplace. An MSPB official told us
that top management takes its commitment to EEO very seriously, as
demonstrated by the fact that only one MSPB manager has received an
outstanding rating under the new performance element. MSPB's senior
executives and other managers and supervisory employees are also
evaluated on their adherence to EEO and affirmative action principles
under the performance element on human resources management.
To reward EEO performance, MSPB established the Chairman's Award for
Excellence in EEO. An employee is eligible for this award under
eight criteria, one of them being whether his or her leadership in
achieving EEO goals and objectives serves as a model for others.
Since October 1990, three MSPB employees have received the award--one
manager and one nonsupervisory employee in January 1992 and another
manager in November 1994.
MSPB's EEO director told us that MSPB has taken various actions to
communicate MSPB's EEO policy, program, and complaint process to
employees and to make them aware of their EEO rights. For example,
offices and employees were provided information on the names and
locations of the agency's EEO counselors and special emphasis program
managers and on the circumstances under which EEO counseling should
be sought. Also, in April 1994, MSPB's EEO manual was distributed to
all MSPB offices for their employees' reference and use. As shown in
table 7, most of the survey respondents indicated that they had
received or seen posted information that described MSPB's EEO
program, their EEO rights, and procedures for contacting MSPB's EEO
counselors; less than one-half of the respondents indicated that they
had received or seen posted information that described the details of
the EEO complaint process.
Table 7
MSPB Employees' Receipt of Information
Regarding EEO
Employees were asked if they Number of Percent of
had received or seen employees who total survey
information posted on: responded yes respondents\a
------------------------------ ------------- -------------
MSPB's EEO program 145 60
their EEO rights 127 53
how to contact MSPB's EEO 164 68
counselors
the EEO complaint process 105 44
------------------------------------------------------------
\a Out of the 299 eligible MSPB employees to whom we mailed our
questionnaire, 240 responded to it.
Source: GAO's Survey of U.S. MSPB Employees' Attitudes and Views
About Their Work Environment
NEW INTERNAL OVERSIGHT
POLICIES AND PROCEDURES
RECENTLY IMPLEMENTED
---------------------------------------------------------- Letter :5.2
MSPB abolished its nonstatutory OIG in February 1994 because of
concerns about its effectiveness and efficiency and in accordance
with NPR's governmentwide goal of streamlining agency operations.
Since then, MSPB has assigned the former OIG's internal oversight
functions to its OGC. Also, to provide its employees with an avenue
for reporting their concerns should they become aware of
mismanagement, abuse, or improper personnel practices, MSPB has
entered into an oral agreement with USDA's Inspector General for
hotline and investigative services.
MSPB's OGC is responsible for planning and directing internal audits
of MSPB's programs and operations. However, OGC is to contract for
the actual performance of the audits, either with other agencies
through interagency agreements or with private firms. MSPB has
contracted with a certified public accounting firm to help develop a
5-year audit plan and to establish procedures for handling the
agency's internal oversight functions. OGC also is responsible for
arranging, as necessary, for investigations into allegations of
wrongdoing and for coordinating the hotline and investigative
services provided by USDA's Inspector General. Any complaints or
allegations received by USDA's Inspector General hotline are to be
forwarded to MSPB's OGC for appropriate action. USDA's Inspector
General has agreed to provide investigative services to MSPB on an
as-needed basis. As of November 1994, USDA's OIG hotline had
received two allegations; both allegations involved complaints about
MSPB appellate decisions rather than instances of mismanagement,
abuse, or improper personnel practices.
We found that by placing its oversight functions in a staff office in
lieu of an OIG, MSPB is administering these functions in a manner
comparable to those of 10 other federal entities we studied of
roughly comparable budget and staff size (see app. IV). Like MSPB,
8 of the 10 federal entities we studied do not have their own audit
or investigative offices but obtain audit or investigative services
through contracts with private firms or agreements with other
agencies' OIGs. Such arrangements do not ensure the same level of
objectivity or independence as do statutory inspector general
offices. However, if MSPB's arrangements are implemented as planned,
MSPB should be able to comply with federal audit requirements set by
the Office of Management and Budget and with investigative
requirements set by the President's Council on Integrity and
Efficiency. Since MSPB's arrangements are new, data on usage and
results are not yet available, and it is too early to assess their
effectiveness in ensuring that MSPB employees are provided an avenue
for reporting their concerns should they become aware of
mismanagement, abuse, or improper personnel practices.
Despite the provisions MSPB has made to protect its employees against
workplace discrimination, mismanagement, abuse, and improper
personnel practices, a sizeable portion of survey respondents
indicated concerns about becoming involved in the processes
established for handling EEO complaints and for reporting wrongdoing.
About 40 percent of the respondents indicated they would be either
uncertain about or unwilling to participate in EEO counseling or to
file a formal EEO complaint if they felt they had been discriminated
against; the most common reason was fear of reprisal (see app. II,
questions 19 through 22). Fifty-one percent of the survey
respondents indicated they would be either uncertain about or
unwilling to report waste, fraud, abuse, or mismanagement of which
they became aware; the most common reasons were a concern over
maintaining anonymity and a fear of retaliation (see app. II,
questions 24 and 25).
MOST EMPLOYEES DESCRIBED THE
MSPB WORKPLACE AS IMPARTIAL,
BUT PERCEPTIONS VARIED AMONG
GROUPS
---------------------------------------------------------- Letter :5.3
As shown in figure 1, nearly two-thirds of the MSPB employees
responding to our survey described the work environment as impartial.
Nearly one-fourth of the respondents described it as discriminatory.
Figure 1: Most Employees
Described the Work Environment
at MSPB as Impartial
(See figure in printed
edition.)
Note: The percentages are based on 221 respondents.
Source: GAO's Survey of U.S. MSPB Employees' Attitudes and Views
About Their Work Environment.
More female (29 percent) than male (16 percent) employees and more
minority (45 percent) than nonminority (18 percent) employees
described their work environment as discriminatory (see figure V.1 in
app. V). Overall, most survey respondents believed that they had
been treated fairly regarding various employment and personnel
decisions, such as job assignments and promotions (see table V.1 in
app. V). However, more women, minorities, and nonattorneys believed
they had been treated unfairly regarding such decisions (see tables
V.2 through V.4 in app. V). Sixty-nine (29 percent) of the MSPB
employees responding to our survey suggested various actions for MSPB
top management to take to further promote an impartial work
environment. Employees' suggestions generally related to promoting
more diversity in management; treating everyone fairly; making
promotion and hiring decisions only on the basis of merit and not on
such factors as race, gender, or political affiliation; and providing
counseling and training to supervisors who are repeatedly the subject
of EEO complaints.
Regarding actual numbers of EEO cases, our analysis of MSPB data on
the EEO complaint process showed that during the 5-year period ending
September 1994, 34 employees received EEO counseling, and 10
employees filed a total of 21 formal EEO complaints. We have no
basis on which to infer from these numbers the extent to which MSPB
has been effective in establishing a fair and impartial workplace.
We recognize that the responses of MSPB employees to our survey
represent perceptions rather than proven instances of discrimination
or indicators of wrongdoing going unreported. Nevertheless, we
believe the fact that, overall, 24 percent of MSPB employees view
their workplace as discriminatory, and that 45 percent of the
agency's minority employees concur, should be of concern to the
agency because of (1) its role as protector of the merit system; and
(2) the standard it set for itself in its 1992 vision statement, "To
promote and protect, by deed and example, the Federal merit
principles in an environment of trust, respect and fairness." We
believe that in light of MSPB's mission and the standard adopted in
its vision statement, it is important that MSPB's own employees feel
confident that they are fairly treated regardless of their race,
religion, color, sex, national origin, political affiliation, marital
status, disability, or age.
EMPLOYEES' PERCEPTIONS VARIED
REGARDING MSPB'S EFFORTS TO
FOSTER AN ENVIRONMENT OF TRUST,
RESPECT, AND FAIRNESS
------------------------------------------------------------ Letter :6
In November 1992, MSPB announced as its vision, "To promote and
protect, by deed and example, the Federal merit principles in an
environment of trust, respect and fairness." Although the vision
statement was developed and adopted prior to the current chairman's
appointment, he supports it, according to MSPB officials. MSPB
officials said that several actions have been taken to foster "an
environment of trust, respect, and fairness." These actions have
included the institution of a new performance element for valuing and
respecting diversity in the workplace, various efforts to improve
internal communication, and the involvement of employees in the
decisionmaking process. Examples of these efforts include (1)
featuring articles in MSPB's internal newsletter, News of Merit, that
highlight various agency events; (2) cross-training employees within
MSPB offices; (3) allowing employees to select award recipients; and
(4) involving employees in the process for reengineering and
reorganizing MSPB in response to NPR recommendations on streamlining
agencies and empowering employees.
Twenty-nine percent of survey respondents expressed the belief that
MSPB has been very successful or generally successful in fostering an
environment of trust, respect, and fairness. But 39 percent, of whom
disproportionate numbers were headquarters, women, and minority
employees, expressed the belief that the agency has been generally
unsuccessful or very unsuccessful. Respondents' perceptions of
MSPB's success varied by duty station, gender, and minority or
nonminority status (see figs. V.2 through V.4 in app. V).
MSPB believes that the staff's mixed perceptions of the agency's
efforts to foster an environment of trust, respect, and fairness may
have been affected by the uncertainties associated with the arrival
of a new chairman, along with the staff's concerns over job security
at a time when management was in the process of reorganizing and
reengineering the agency's operations. However, an internal MSPB
survey that was administered about 2 years prior to both our survey
and MSPB's current reorganization efforts yielded similar results.
Fifty percent of the respondents to MSPB's internal survey
administered in February 1992 disagreed with the statement that
"overall, the Board creates and fosters an environment of trust,
respect, and fairness."
The views of MSPB employees in this regard are somewhat similar to
those of federal employees in general. In OPM's 1992 survey of
56,767 federal employees, 44 percent of the respondents expressed
confidence and trust in their organizations, but 26 percent did not.
OPM's survey also showed that although 30 percent believed their
organizations treated all employees equally regardless of position or
rank, 47 percent did not. OPM's survey results demonstrate that
other federal agencies, based on their employees' perceptions, have
had mixed success in fostering trust and fairness in the workplace.
Nearly half (45 percent) of MSPB employees responding to our
survey--including many who felt that MSPB has been successful in
promoting an environment of trust, respect, and fairness-- suggested
actions for MSPB top management to take in this regard. The
suggestions generally related to improving workplace communication
and managerial decisionmaking about employment and resource matters,
allowing employees to contribute to the decisionmaking process and
involving staff at all levels, and treating staff equitably without
regard to position or to minority or nonminority status. MSPB
officials said that some of these suggestions correspond with actions
already taken by management, and they are continuing to pursue them.
CONCLUSION
------------------------------------------------------------ Letter :7
Our examination of MSPB's mission performance, employee protections,
and working environment began 4 months after the swearing-in of
MSPB's current chairman and therefore covered a transitional period
for the agency. Regarding mission performance and employee
protections, indications were that MSPB's new management is pursuing
policies and initiatives that are in accord with relevant standards
and with the needs of its customers and employees. Management has
taken several actions to provide employee protections and to promote
a working environment based on trust, respect, and fairness.
However, MSPB employees had mixed perceptions of the impartiality of
the workplace and of management's success in improving the work
environment. We believe the eventual impact on MSPB's employees of
management's actions will become clearer after the current chairman
has been in office for a longer period of time, and the process of
reorganizing and reengineering the agency's operations has been
completed.
AGENCY COMMENTS
------------------------------------------------------------ Letter :8
In a letter dated July 14, 1995, MSPB's chairman provided comments on
a draft of this report. The chairman said that our report, on the
whole, was thorough and thoughtfully presented. He did not express
any disagreement with its findings and conclusions. His comments
consisted of apprising us that (1) processing time for petitions for
review on merit cases improved during the first half of fiscal year
1995 (a time period that was outside the scope of our review); and
(2) while the report states that OGC will contract out audits, it may
also be prudent for OGC, under the current fiscal environment, to
arrange for Board personnel to perform some audits in situations
where appropriate safeguards can be established. The chairman also
recommended a technical change that we made where appropriate. The
chairman's comments are presented in their entirety in appendix VI.
---------------------------------------------------------- Letter :8.1
We are sending copies of this report to the Chairmen of the Merit
Systems Protection Board, the Senate Committee on Governmental
Affairs, and the House Committee on Governmental Reform and
Oversight. Copies will be made available to others upon request.
This report was prepared under the direction of Stephen Altman,
Assistant Director, Federal Management and Workforce Issues. Other
major contributors are listed in appendix VII. If you have any
questions about this report, please contact me on (202) 512-8676.
Sincerely yours,
L. Nye Stevens
Director
Federal Management and Workforce Issues
(See figure in printed edition.)Appendix I
ANNOTATED SURVEY ON THE APPELLATE
PROCESS OF THE U.S. MERIT SYSTEMS
PROTECTION BOARD
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(See figure in printed edition.)Appendix II
ANNOTATED SURVEY OF U.S. MERIT
SYSTEMS PROTECTION BOARD
EMPLOYEES' ATTITUDES AND VIEWS
ABOUT THEIR WORK ENVIRONMENT
============================================================== Letter
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SCOPE AND METHODOLOGY
========================================================= Appendix III
MSPB'S APPEALS PROCESS
------------------------------------------------------- Appendix III:1
To assess whether MSPB is accomplishing its statutory mission through
the appeals process in a fair and timely manner, we (1) developed a
questionnaire and mailed it in April 1994 to individuals who had
experience as practitioners with MSPB's process for adjudicating
federal employees' appeals of agency personnel actions during the
2-year period ending September 1993; (2) analyzed its case processing
performance reports to determine whether MSPB abided by its own
guidelines in processing cases during fiscal years 1991 through 1994
at the regional and headquarters levels; and (3) analyzed data on the
extent to which MSPB's final decisions were appealed to and affirmed
by the U.S. Court of Appeals for the Federal Circuit during fiscal
years 1991 through 1994.
In analyzing the case processing performance reports, we did not
verify them to source documents but did review available MSPB
information on the reliability of the case management system from
which the reports were generated. For example, we identified various
MSPB systemwide controls used to ensure the accuracy and reliability
of appeals case data. We also identified and reviewed three data
verification studies performed by MSPB's management analysis group.
We did not review appeals cases to determine whether the process was
carried out fairly or resulted in well-reasoned decisions.
QUESTIONNAIRE OBJECTIVES AND
DEVELOPMENT
----------------------------------------------------- Appendix III:1.1
We mailed a total of 1,179 questionnaires on April 27, 1994, to
appeals process practitioners asking for their views on (1) how
successful MSPB has been in accomplishing its mission through the
appeals process, (2) the fairness of the appeals process, and (3) the
time limits for filing and processing appeals. The practitioners
included (1) general counsels of federal agencies, (2) federal agency
attorneys and representatives, (3) employee and labor-management
relations representatives in federal agencies, (4) private attorneys
representing appellants, and (5) union officials representing
appellants.
The questionnaire was designed by a social science survey specialist
in conjunction with GAO evaluators who were knowledgeable about
MSPB's appeals process. We pretested the questionnaire with members
of each of the five participant groups to determine if (1) the
respondents possessed the information desired; (2) the questionnaire
would be burdensome to the respondents; and (3) the questionnaire
design, including such elements as the type size, layout, and
procedures for recording the information, was appropriate. Any
problems with the questionnaire that were identified by the pretest
process were corrected. We also provided the questionnaire to MSPB
for review and incorporated the agency's comments as appropriate.
After the questionnaires were completed and returned by survey
respondents, the questionnaires were edited. Three data verification
procedures were used. All data were double-keyed and verified during
data entry. A random sample of these data was verified back to the
source questionnaires. Also, computerized logic checks were run to
look for incorrect data; any errors that were found were corrected.
SAMPLING METHODOLOGY
----------------------------------------------------- Appendix III:1.2
The total population of the 5 participant groups was 5,015
individuals; 1,179 of these 5,015 individuals were mailed
questionnaires. Questionnaires were mailed to all persons in the
general counsel (83) and employee and labor-management relations
representative groups (98). Federal agency general counsels were
identified and selected from agency general counsels listed in the
Federal Yellow Book, Winter 1994. Employee and labor-management
relations representatives in federal agencies were selected from a
membership listing of OPM's Interagency Advisory Group Committee on
Employee and Labor-Management Relations.
We sent questionnaires to a total sample of 998 individuals who made
up the remaining 3 groups of appeals process participants-- federal
agency attorneys and representatives (492), private attorneys (368),
and union officials (138). Federal agency attorneys and
representatives, private attorneys, and union officials were selected
from MSPB's lists of individuals who represented federal employees or
agencies before MSPB sometime during fiscal year 1992 or fiscal year
1993; because of the large number of individuals included in these
lists, we randomly sampled from the three groups.
Table III.1 presents the population sizes and the original and
revised sample sizes for each of the five participant groups that
were mailed questionnaires on April 27, 1994.
Table III.1
cipant Groups Included in MSPB's Appeals
Process Questionnaire Survey Mailed on
April 27, 1994
Sample of
Sample of persons
persons eligible to
Number of mailed receive
persons in questionnaire questionnaire
Group population s s\b
--------------- ------------- ------------- -------------
Agency general 83 83\a 50
counsels
Agency 2,336 492 443
attorneys and
representative
s
Agency employee 98 98\a 41
and labor-
management
relations
representative
s
Private 1,855 368 316
attorneys
Union 643 138 123
representatives
============================================================
Total 5,015 1,179 973
------------------------------------------------------------
\a The entire population, rather than a sample, was mailed the
questionnaire.
\b Figures represent the sample of persons mailed questionnaires
minus those who indicated on returned questionnaires that they had
not had personnel appeals cases experience with MSPB since October
1991.
QUESTIONNAIRE RESPONSE RATE
----------------------------------------------------- Appendix III:1.3
Of the 1,179 questionnaires we mailed in April 1994, 206
questionnaires were returned by individuals who indicated they had
not had personnel appeals case experience with MSPB since October
1991 and thus were deemed ineligible for our sample. These
individuals were dropped from our original population of individuals,
resulting in a revised survey sample size of 973 questionnaires for
our 5 participant groups. Those individuals who did not respond were
sent a second questionnaire mailing on June 8, 1994, and a final
questionnaire mailing on August 4, 1994. As a result of these 3
mailings, we received 676 completed and useable questionnaires, for a
response rate of 69 percent. Table III.2 summarizes the
questionnaire returns for the revised survey sample size of 973.
Table III.2
Questionnaire Returns
Number of
eligible
Types of returns returns Percent
------------------------------ ------------- -------------
Useable returns 676 69.5
Delivered but not returned 218 22.4
Undeliverable 70 7.2
Returned not completed or 9 0.9
useable
============================================================
Total 973 100
------------------------------------------------------------
The useable return rates for the individual groups ranged from 47 to
85 percent. Table III.3 presents the revised sample size and return
rates for each group.
Table III.3
Useable Return Rates by Group
Useable
Eligible Useable return
Group returns returns rate
------------------------------ -------- -------- --------
Agency general counsels 50 42 84.0
Agency attorneys and 443 375 84.7
representatives
Agency employee and labor- 41 30 73.2
management relations
representatives
Private attorneys 316 149 47.2
Union officials 123 80 65.0
============================================================
Total 973 676 69.5
------------------------------------------------------------
POPULATION ESTIMATES FROM
THE SAMPLE RESULTS AND
SAMPLING ERROR
----------------------------------------------------- Appendix III:1.4
The results obtained from our sampling methodology allow us to make
observations about each group's experience in representing clients
before MSPB. Our sample results can be projected to the populations
for three of the five groups who have had experience representing
clients before MSPB--federal agency attorneys and representatives,
private attorneys, and union officials representing appellants. The
other two groups--employee and labor-management relations
representatives and general counsels of federal agencies--were not
sampled; instead, the populations of individuals in these two groups
were mailed questionnaires.
Because our survey selected a sample or portion of the population of
agency attorneys and representatives, private attorneys, and union
representatives, the review results obtained are subject to some
uncertainty, or sampling error. The sampling error consists of two
parts--confidence level and confidence interval. The confidence
level indicates the degree of confidence that can be placed in the
estimates derived from the sample. The confidence interval is the
upper and lower limit between which the actual population estimate
may be found.
We chose the specific sample sizes for each of the three groups so
that the confidence interval, based on a 100-percent response rate,
would not be greater than plus or minus 5 percent at the 95-percent
level of confidence. However, because the useable questionnaire
response rate was less than 100 percent and varied for each of the
three practitioner groups we sampled, the confidence intervals were
generally larger than plus or minus 5 percent.
We calculated the confidence intervals only for the sampled groups'
responses to the three survey questions on MSPB's success in
accomplishing its mission and the fairness of its appellate process,
which we presented earlier in tables 1, 2, and 3. In calculating the
confidence intervals, we assumed that for each of the three
practitioner sample groups the reported percentage of practitioners
responding to the three survey questions was near 50 percent, which
may result in larger confidence intervals. The confidence intervals
are smaller when the actual reported percentages approach 100 percent
and 0 percent. For example, the 90 percent of agency attorneys and
representatives who responded that MSPB's appellate process was fair
at the headquarters level had a confidence interval of plus or minus
4 percent, as compared to a confidence interval of plus or minus 6
percent if 50 percent had responded that the process was fair.
Table III.4 shows what the confidence intervals for each of the
sampled groups would have been if the reported percentage of
practitioners responding to the three questions had been near 50
percent.
Table III.4
Confidence Intervals for GAO's Analysis
of Sampled Participants' Views of MSPB's
Success in Accomplishing Its Mission and
the Fairness of Its Appellate Process