Civil Service Reform: Observations on Demonstration Authority, the Use of
Official Time, and the Administrative Redress System (Testimony,
06/24/1998, GAO/T-GGD-98-160).

Two decades have passed since the passage of the Civil Service Reform
Act of 1978. Since then, as the pace of social, economic, and
technological change has increased, Congress has further refined the
civil service. Today, Congress is again considering legislation that,
like the Civil Service Reform Act itself, is not intended to completely
overhaul the civil service but rather to keep pace with the need to
refine or modernize the system in several key areas. This testimony
discusses three issues addressed in the proposed legislation: personnel
demonstration authority, the use of official time to support employee
union activities, and the administrative redress system for federal
workers.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  T-GGD-98-160
     TITLE:  Civil Service Reform: Observations on Demonstration
	     Authority, the Use of Official Time, and the
	     Administrative Redress System
      DATE:  06/24/1998
   SUBJECT:  Personnel management
	     Federal employees
	     Administrative remedies
	     Data collection
	     Federal personnel administrative law
	     Human resources utilization
	     Proposed legislation
	     Collective bargaining
	     Dispute settlement
IDENTIFIER:  Federal Employees Retirement System

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GAO/T-GGD-98-160

Cover
================================================================ COVER

Before the Subcommittee on Civil Service,
Committee on Government Reform and Oversight
House of Representatives

For Release on Delivery
Expected at
10:00 a.m., EDT
Wednesday
June 24, 1998

CIVIL SERVICE REFORM -
OBSERVATIONS ON DEMONSTRATION
AUTHORITY, THE USE OF OFFICIAL
TIME, AND THE ADMINISTRATIVE
REDRESS SYSTEM

Statement by
Michael Brostek, Associate Director
Federal Management and Workforce Issues
General Government Division

GAO/T-GGD-98-160

GAO/GGD-98-160T

(410256)

Abbreviations
=============================================================== ABBREV

  ADR -
  CSRA -
  DFAS -
  EEO -
  EEOC -
  FERS -
  FLRA -
  HRM -
  MSPB -
  NIST -
  OMB -
  OPM -
  OSC -

CIVIL SERVICE REFORM:
OBSERVATIONS ON DEMONSTRATION
AUTHORITY, THE USE OF OFFICIAL
TIME, AND THE ADMINISTRATIVE
REDRESS SYSTEM
====================================================== Chapter SUMMARY

Two decades have passed since passage of the Civil Service Reform Act
of 1978 (CSRA).  Since then, as the pace of social, economic, and
technological change has increased, Congress has responded with
further refinements to the civil service.  Today, Congress is again
considering legislation that, like CSRA itself, is not intended to
completely overhaul the civil service but rather to keep pace with
the need to refine or modernize the system in several key areas.  GAO
discusses three issues addressed in the proposed legislation:
personnel demonstration authority, the use of official time to
support employee union activities, and the administrative redress
system for federal employees.

  -- The personnel demonstration project authority provided by CSRA
     has been put to only limited use.  There is some question as to
     whether this authority has accomplished, to the appropriate
     extent, the purpose for which it was intended--that is,
     determining whether specific changes in personnel management
     policies or procedures would result in improved federal
     personnel management.  Enhancing the opportunities for agencies
     to pursue innovative human resource management (HRM) policies or
     procedures would be likely to create more knowledge about what
     works and what doesn't.  As more agencies take steps to fashion
     their HRM approaches to support their missions and goals, it
     would be useful for them to have as many proven HRM approaches
     available to them as possible.

  -- If decisionmakers hope to resolve the question of the extent to
     which federal agencies use official time and other resources to
     support employee union activities, better data will be needed.
     But, recognizing that data gathering can be expensive,
     decisionmakers will need to balance the costs and benefits of
     the various options for doing so.  This December, after the
     Office of Personnel Management (OPM) reports on its current
     effort to collect data from the agencies, decisionmakers may
     have a fuller picture of the issues involved in requiring
     agencies to report on the use of these resources, and may have
     more information with which to balance the costs and potential
     benefits of imposing this requirement in the future.

  -- GAO continues to view the administrative redress system for
     federal employees as inefficient, expensive, and time-consuming.
     Certain steps to relieve undue burdens on the system, such as
     eliminating "mixed case" appeals, would appear to make good
     sense, provided these actions upheld two fundamental principles:
     fair treatment for federal employees and an efficiently managed
     federal government.  In addition, GAO's work on alternative
     dispute resolution (ADR) suggests that the current burden on the
     administrative redress system could be eased, at least in part,
     if agencies made ADR more widely available to their employees.

CIVIL SERVICE REFORM:
OBSERVATIONS ON DEMONSTRATION
AUTHORITY, THE USE OF OFFICIAL
TIME, AND THE ADMINISTRATIVE
REDRESS SYSTEM
==================================================== Chapter STATEMENT

Mr.  Chairman and Members of the Subcommittee:

I appreciate the opportunity to participate today in your discussion
of the proposed Federal Employees Integrity, Performance, and
Compensation Improvement Act of 1998.  We feel that legislative
efforts such as this to reexamine the civil service in a changing
environment are both grounded in precedent and a fundamental
congressional responsibility.  They reflect the recognition that a
capable and well-managed federal workforce is indispensable to the
government's ability to fulfill its commitments to the American
people.

Two decades have passed since Congress enacted the Civil Service
Reform Act of 1978 (CSRA).  Since then, as the pace of social,
economic, and technological change has increased, Congress has
responded with further refinements to the civil service.  Congress
created a new retirement system (the Federal Employees Retirement
System (FERS)) in 1986; passed the Federal Employees Pay
Comparability Act in 1990, putting into law the principle of locality
pay; made changes to the Hatch Act in 1993; passed the Workforce
Restructuring Act in 1994, which, while downsizing the federal
workforce, provided broader training flexibility to make federal
workers more employable; and passed the Family Friendly Leave Act in
1994.  Today, Congress is again considering civil service legislation
that, like CSRA itself, is not intended to completely overhaul the
civil service but rather to keep pace with the need to refine or
modernize the system in several key areas.

I would like to discuss three of the issues addressed in the proposed
legislation.  First, I will briefly discuss the use of the Office of
Personnel Management's (OPM) personnel demonstration project
authority, which offers the opportunity for determining whether
specific changes in personnel management policies or procedures would
result in improved federal personnel management.  After that, I will
discuss two issues that are of long-standing concern to the
Subcommittee, and on which we have testified in the past.  The first
of these is the use of official time and other resources to support
federal workers' union activities.\1 The second is the administrative
redress system, which was designed to protect federal employees
against arbitrary agency actions and prohibited personnel practices,
such as discrimination or retaliation for whistleblowing.  Drawing on
additional work we have done, I will expand upon some of the
information we presented in our earlier appearances before the
Subcommittee and remark on these issues in the context of the new
legislative proposals.

Although the legislation was still being drafted as this statement
was being prepared, the Subcommittee staff provided us with an
outline of the bill.  My comments are based on our review of that
outline.

--------------------
\1 "Official time" is time granted an employee by a federal
organization to perform certain union activities when the employee
would otherwise be in a duty status.

   DEMONSTRATION PROJECT AUTHORITY
   PROVIDES AN OPPORTUNITY TO TEST
   HUMAN RESOURCE MANAGEMENT
   PRACTICES THAT MAY BETTER
   SUPPORT AGENCIES' MISSIONS
-------------------------------------------------- Chapter STATEMENT:1

In recent years, changes in social, economic, and technological
conditions put new pressures on both public and private sector
organizations, which had to deal with calls for better performance
and growing demands for more responsive customer service, even as
resources were becoming harder to come by.  Many of these
organizations have looked hard at their human resource management
(HRM) approaches, found them outmoded or too confining, and turned to
new ways of operating.\2

The human resource management model that many of these organizations
have chosen is more decentralized, more directly focused on mission
accomplishment, and set up more to establish guiding principles than
to prescribe detailed rules and procedures.\3 Under this model, an
organization adopts its human resource management practices because
they support the organization's needs and mission, rather than
because they conform with practices that have been adopted elsewhere.

In our previous work, we have recognized that to manage effectively
for results, agencies need the flexibility to manage according to
their needs and missions.  Under the Government Performance and
Results Act of 1993 (known as GPRA or the Results Act), managers are
expected to be held accountable for results, but also to be given
greater flexibility to manage.

In this context, it is important that agency managers have usable
knowledge about human resource management practices that could
enhance agency performance.  Under CSRA, a provision was made for
determining whether specific changes in personnel management policies
or procedures would result in improved federal personnel management.
OPM's personnel demonstration project authority allows the central
personnel agency to waive certain civil service rules so that federal
agencies can try new HRM approaches.  OPM demonstration projects have
focused on such areas as streamlined hiring, classification,
compensation systems, and skill-based pay.  CSRA specified that no
more than 10 demonstration projects may be active at any given time,
that each demonstration project may cover no more than 5,000
employees, and that projects generally may take no longer than 5
years to complete.

During the nearly 20 years in which OPM demonstration project
authority has been available, it has been put to only limited use.
According to OPM, only eight demonstration projects have been
implemented since the passage of CSRA.  Four OPM demonstration
projects have been completed.  Two of these projects--at Navy's China
Lake facility and the National Institutes of Standards and Technology
(NIST)--have been made permanent by legislation.  Two others (at the
Departments of Agriculture and Commerce) are now active, and one (at
the Department of Veterans Affairs) has been formally proposed and is
expected to be implemented in the near future.\4

When we surveyed officials at 26 agencies near the end of the
demonstration program's first decade, two reasons for the limited use
of the demonstration project authority were most widely cited:  the
time and resources required to develop and propose projects and the
difficulty of getting project proposals through agencies' approval
processes.\5 In studies of the demonstration project authority, both
the Merit Systems Protection Board (MSPB) and OPM itself noted the
frustrations some federal officials have experienced with the
demonstration project development and approval process, both within
their agencies and with OPM.\6 OPM said it believed that "the process
should be redesigned or better administered to achieve the always
difficult task of reconciling OPM and agency interests in the name of
innovation."\7

There is some question, considering the limited use to which
demonstration project authority has been put, as to whether it has
accomplished, to an appropriate extent, the purpose for which it was
intended--that is, determining whether specific changes in personnel
management policies or procedures would result in improved federal
personnel management.  We believe that enhancing the opportunities
for agencies to pursue innovative HRM policies or procedures would be
likely to create more knowledge about what works and what
doesn't--especially since agencies that implement demonstration
projects are required to evaluate their results.  As more agencies
take steps to fashion their HRM approaches to support their missions
and goals, it would be useful for them to have as many proven HRM
approaches available to them as possible.

--------------------
\2 Civil Service Reform:  Changing Times Demand New Approaches
(GAO/T-GGD-96-31, Oct.  12, 1995).

\3 GAO/T-GGD-96-31, Oct.  12, 1995.

\4 Five additional demonstration projects are active at Department of
Defense facilities.  These demonstration projects were authorized by
Congress outside OPM demonstration authority, but were developed with
input from OPM.

\5 Federal Personnel:  Status of Personnel Research and Demonstration
Projects (GAO/GGD-87-116BR, Sept.  1987).  OPM has told us that these
two reasons remain the most prominent.

\6 See Federal Personnel Research Programs and Demonstration
Projects:  Catalysts for Change, Merit Systems Protection Board,
December 1992; and Retrospective on the Demonstration Project
Authority:  Lessons Learned, Office of Personnel Management, December
1993.

\7 Retrospective on the Demonstration Project Authority:  Lessons
Learned, Office of Personnel Management, December 1993.

   SUPPORT FOR FEDERAL EMPLOYEE
   UNION ACTIVITIES IS AN
   ESTABLISHED PRACTICE, BUT THE
   EXTENT OF THAT SUPPORT IS
   UNKNOWN
-------------------------------------------------- Chapter STATEMENT:2

We last testified on the use of official time for union activities in
September 1996.\8 At that time, we reported that (1) the use of
official time for union activities was an established practice in the
federal government; (2) based on our work at four federal entities,
the total amount of official time used for union activities, the cost
of that time, and the number of people using that time were
unknown;\9 and (3) no reporting requirement existed for agencies to
generate comprehensive data on their support of union activities.
Our "bottom line" was that if decisionmakers hope to resolve the
question of the extent to which agencies use official time and other
resources to support the activities of federal employee unions,
better data are needed.  But, recognizing as well that data gathering
can be expensive, we said that decisionmakers would need to balance
the costs and benefits of the various options for doing so.

Since then, at the Subcommittee's request, we have done further, more
extensive work on official time and other forms of support for
federal employee union activities, twice surveying 34 federal
organizations that employ about 87 percent of the more than 1 million
nonpostal federal workers who are represented by unions and are
covered by collective bargaining agreements (see app.  I).  But, as
you will see, our additional work on official time yielded findings
very similar to those we previously reported.  We found that the use
of official time remains an established practice, but that the 34
federal organizations that we surveyed, which included the 30 federal
organizations with the greatest number of employees covered by
collective bargaining agreements, were neither routinely collecting
nor reporting the kinds of comprehensive data needed to accurately
portray the use of official time across the federal government.  No
permanent reporting requirement for the use of official time yet
exists, but subsequent to our two surveys, both the House and Senate
Committees on Appropriations directed OPM to report on the use of
official time and other forms of support for union activities.  OPM
is to collect these data for the first 13 pay periods of calendar
year 1998 and report to the Committees no later than December 1,
1998.

--------------------
\8 Federal Labor Relations:  Official Time Used for Union Activities
(GAO/T-GGD-96-191, Sept.  11, 1996).

\9 The four federal entities were the U.S.  Postal Service, the
Internal Revenue Service, the Social Security Administration, and the
Department of Veterans Affairs.

      THE USE OF OFFICIAL TIME FOR
      UNION ACTIVITIES IS AN
      ESTABLISHED PRACTICE
------------------------------------------------ Chapter STATEMENT:2.1

As you know, CSRA allows federal employees to bargain collectively
through labor organizations of their choice and thereby participate
with agency management in the development of personnel policies and
practices and other decisions that affect their working lives.  For
the most part, labor-management relations at the federal
organizations we surveyed are governed by title VII of CSRA, which is
administered by the Federal Labor Relations Authority (FLRA), an
organization headed by a three-member panel that issues policy
decisions and adjudicates labor-management disputes.

The charging of official time by union members for their
participation in collective bargaining and FLRA-authorized activities
is a matter of statutory right.  Using official time for other union
activities is negotiated.  CSRA allows official time to be negotiated
in any amount an agency and the union involved agree is reasonable,
necessary, and in the public interest.  However, CSRA specifies that
activities that relate to internal union business, such as the
solicitation of members or the election of union officials, must be
performed when in a nonduty status, that is, not on official time.

Among the union activities for which the use of official time can be
negotiated are activities related to grievance procedures; meetings
called by management on a collective bargaining agreement; joint
labor-management committee meetings addressing such issues as safety
and health; semiannual labor-management relations committee meetings;
union-sponsored training and other training pertaining to labor
relations; meetings with union representatives concerning grievances,
appeals, or personal matters; and presentations of union views to
officials of the executive branch, Congress, or other appropriate
authority.  Under some contracts, official time is authorized for
travel to and from some of these meetings, but other contracts may
either deny the use of official time for travel or not mention it.

We asked the 34 federal organizations we surveyed to describe the
benefits and disadvantages, if any, of using official time for union
activities.  In response, 23 said that the use of official time
improved labor-management relations.  Fourteen of the federal
organizations also said that using official time helped with the
implementation of organizational changes; 13 said it decreased the
number of grievances.  The single disadvantage, as identified by 13
of the 34 federal organizations we surveyed, was that using official
time for union activities caused employees to set aside their regular
work.

      THE EXTENT OF OFFICIAL TIME
      USE AND OTHER SUPPORT FOR
      UNION ACTIVITIES IS UNKNOWN
------------------------------------------------ Chapter STATEMENT:2.2

Regarding the extent of the use of official time and other support
for union activities, the responses to our surveys were spotty at
best.  Therefore, although the data we obtained are the most
extensive currently available, they are insufficient to accurately
portray the total amount of resources used for union activities
across the 34 federal organizations.  Most of the respondents did not
provide comprehensive data on these resources.  None of them provided
all of the data requested for the 8 fiscal years covered by our
surveys.  In some cases, the organizations provided data that covered
only portions of fiscal years or were representative of calendar
rather than fiscal years.

With limitations such as these in mind, we can report that, of the 34
federal organizations we surveyed, 32 provided information on the
hours used for union activities during fiscal year 1996; these
totaled almost 2.5 million hours.  According to the survey responses
from 27 of the federal organizations, about 11,000 employees used
official time for union activities in 1996.  About 460 employees
spent 100 percent of their time on union activities at 23 federal
organizations.  Most of the information provided by the federal
organizations regarding the amount of time spent on union activities
and the number of employees using that time was based on reported
data rather than estimates.\10

                                     Table 1

                     Data on Hours of Official Time Used for
                        Union Activities and the Number of
                     Employees Using That Time During Fiscal
                      Year 1996, as Provided by the Federal
                                  Organizations

                               Amount of resources used for union activities
                            ----------------------------------------------------
Resource         Number of
s used       organizations
for          that provided
union         resources in                                       Total estimated
activiti       fiscal year    Total reported   Total estimated      and reported
es                  1996\a              data              data              data
--------  ----------------  ----------------  ----------------  ================
Hours of                32         1,775,917           723,672         2,499,589
 time
 that
 employe
 es used
 for
 union
 activit
 ies
Number                  27           4,607\b             6,320            10,927
 of
 employe
 es who
 used
 officia
 l time
 for
 union
 activit
 ies
Number                  23               379                79               458
 of
 employe
 es who
 spent
 100
 percent
 of
 their
 time on
 union
 activit
 ies
--------------------------------------------------------------------------------
\a The numbers of organizations identified as providing resources are
those that affirmatively responded that they did provide such
support.  Some organizations responded that they did not provide one
or more of the types of resources, and some organizations did not
respond at all with answers regarding whether they provided one or
more of the resources.

\b In our report entitled Federal Labor Relations:  Survey of
Official Time Used for Union Activities (GAO/GGD-97-182R, Sept.  11,
1997), we indicated that 8,092 employees used official time for union
activities in fiscal year 1996, as reported by the federal
organizations.  In response to a subsequent survey, federal agencies
reported an additional 1,877 employees who used official time in
1996, and we included them in this table.  In addition, the
Department of the Air Force identified an error in a computer program
used by the Defense Finance and Accounting Service (DFAS) to compute
the number of employees who used official time.  Accordingly, Air
Force officials asked us to reduce their total number of employees
who used time for union activities by 2,855.  We have since reviewed
the DFAS computer program and agree that it resulted in an
overstatement of the number of employees who used official time.
Because the DFAS program was used in computing figures for the
Departments of the Army and the Navy as well, we have sought to avoid
overstating the number of employees using official time by excluding
from this table the number of employees using official time
originally reported by the Army (1,926), the Navy (581), and the Air
Force (2,855).

Source:  GAO survey of federal organizations.

Of the 34 federal organizations surveyed, 29 provided information on
the dollar value of the official time spent on union activities
during fiscal year 1996; this dollar value totaled about $50 million.
Twenty-three organizations indicated that, in 1996, they provided
office space, equipment, telephone use, and supplies valued at over
$5 million for union activities, and that over $3 million was spent
on travel and per diem associated with union activities at 22
organizations.  For the most part, the dollar values of the time,
office equipment and related items, and travel and per diem reported
by the federal organizations were based on estimates.

                                     Table 2

                         Data on the Dollar Values of the
                      Official Time, Office Space and Other
                      Related Items, and Travel and Per Diem
                     Used for Union Activities During Fiscal
                      Year 1996, as Provided by the Federal
                                  Organizations

                            Dollar value of resources used for union activities
                            ----------------------------------------------------
Resource         Number of
s used       organizations
for          that provided
union         resources in                                       Total estimated
activiti       fiscal year    Total reported   Total estimated      and reported
es                  1996\a              data              data              data
--------  ----------------  ----------------  ----------------  ================
Official                29       $22,426,692       $27,095,784       $49,522,476
 time
 used
 for
 union
 activit
 ies
Office                  23         1,659,547         3,364,964         5,024,511
 space,
 equipme
 nt,
 telepho
 ne use,
 and
 supplie
 s
Travel                  22         1,007,010         2,172,696         3,179,706
 and per
 diem
--------------------------------------------------------------------------------
\a The numbers of organizations identified as providing resources are
those that affirmatively responded that they did provide such
support.  Some organizations responded that they did not provide one
or more of the types of resources, and some organizations did not
respond at all with answers regarding whether they provided one or
more of the resources.

Source:  GAO survey of federal organizations.

We found that the methodologies used for deriving estimates of the
resources used for union activities varied greatly among the federal
organizations.  For example, one federal organization based its
official time estimate on the current union contract entitlement.
Another organization estimated the number of employees using official
time by collecting estimates from its components; each component,
however, based its estimate on a different methodology.  Another
federal organization used an average GS grade level to estimate the
dollar value of the time spent on union activities.  And yet another
organization indicated that it estimated the dollar value of travel
and per diem for one union on the basis of data reported for two
other unions.  Some of the organizations indicated that their
estimates were based on documents and records that were not
comprehensive or complete.  Others provided no bases at all for their
estimates.\11

--------------------
\10 In this context, "reported data" means data either systematically
captured in an existing database from payroll, personnel, or other
official source or compiled for agency reports.  Although we
requested that the agencies provide us with reported data, we
informed them that if reported data were unavailable, they should
provide estimated data, along with the basis on which estimates were
made.

\11 We did not assess (1) the completeness of the estimated data
provided by the federal organizations or (2) the appropriateness of
the bases on which the estimates were formed.

   NO REPORTING REQUIREMENT HAS
   BEEN IN PLACE, BUT AN OPM
   EFFORT IS CURRENTLY UNDER WAY
-------------------------------------------------- Chapter STATEMENT:3

The overall lack of comprehensive or reliable data among the
respondents to our two surveys was not surprising, considering, as we
noted in our September 1996 testimony, that no reporting requirement
existed for agencies to generate comprehensive data on their support
of union activities.\12 Subsequent to our two surveys, however, the
House and Senate Committees on Appropriations directed OPM, in
consultation with the Office of Management and Budget (OMB), to
report on the use of official time and other support for union
activities among federal agencies.  OPM is currently collecting data
for the first 13 pay periods of calendar year 1998, and is expected
to report to the Committees no later than December 1, 1998.  OPM's
guidance to the agencies requires them to report actual data, if
available.  Lacking that, they are to formulate estimates on the
basis of the best available data or use standard statistical sampling
techniques.  If an estimate or sample is used, the methodology is to
be documented and fully explained.

The Committees expect that the data provided by OPM will include a
description of both the benefits and disadvantages, if any, of using
official time for union activities and a list of specific activities
undertaken by federal employees while using official time.  The
Committees also expect that OPM will report, for the 6-month period
in 1998, (1) the total hours of official time that employees spent on
the various activities identified; (2) the number of employees who
used official time for these activities; (3) the number of employees
who charged 100 percent of their work hours to official time, the
number who charged 75 percent, and the number who charged 50 percent;
(4) the dollar value of the official time, in terms of employee
compensation, used for such activities; and (5) the dollar value of
federally funded office space, equipment, telephone use, and supplies
provided to unions.

When OPM's report is issued, decisionmakers may have more information
than at present on the extent to which federal agencies are providing
official time and other support for federal employee union
activities.  They may also have a fuller picture of the issues
involved in requiring agencies to report on the use of these
resources, and may have more information with which to balance the
costs and potential benefits of imposing this requirement in the
future.

--------------------
\12 In 1981, agencies were required by OPM, under Federal Personnel
Manual Letter 711-161, to activate a recordkeeping system to capture
official time charged for representational functions.  However, the
letter did not require agencies to report the yearly time charges to
OPM.  As a result, OPM never consolidated the amount of time charged
governmentwide to union activities and had no information on
agencies' compliance with the recordkeeping requirement.  When the
Federal Personnel Manual was abolished in 1994, all recordkeeping
requirements regarding time spent on union activities were rescinded.

   THE ADMINISTRATIVE REDRESS
   SYSTEM REMAINS OVERBURDENED,
   BUT GREATER USE OF ALTERNATIVE
   DISPUTE RESOLUTION MAY OFFER
   SOME RELIEF
-------------------------------------------------- Chapter STATEMENT:4

We first testified on the administrative redress system for federal
employees in November 1995, when we stated that the complexity of the
system and the variety of redress mechanisms it affords federal
employees make it inefficient, expensive, and time-consuming.\13 Our
view remains unchanged.  Issues of jurisdictional overlap and
multiple venues for complaints--particularly in the area of workplace
discrimination--continue to afflict an already overburdened redress
system.  I would like to discuss two of these issues--"mixed case"
appeals and the disproportionate share of discrimination cases
brought by U.S.  Postal Service employees.  In addition, I would like
to discuss the expectation that alternative dispute resolution (ADR),
if used appropriately, may help lessen the demands on the redress
system.

--------------------
\13 Federal Employee Redress:  An Opportunity for Reform
(GAO/T-GGD-96-42, Nov.  29, 1995).

      A SYSTEM MARKED BY
      JURISDICTIONAL OVERLAPS
------------------------------------------------ Chapter STATEMENT:4.1

The purpose of the current redress system, which grew out of CSRA and
related legal and regulatory decisions over nearly 20 years, is to
uphold the merit system by ensuring that federal employees are
protected against arbitrary agency actions and prohibited personnel
practices, such as discrimination or retaliation for whistleblowing.
While one of the purposes of CSRA was to streamline the previous
redress system, the scheme that has emerged is far from simple.
Today, four independent adjudicatory agencies can handle employee
complaints or appeals:  MSPB, the Equal Employment Opportunity
Commission (EEOC), the Office of Special Counsel (OSC), and FLRA.
While these agencies' boundaries may appear to have been neatly
drawn, in practice the redress system is a tangled web.

To begin with, a given case may be brought before more than one of
these agencies--a circumstance that adds time-consuming steps to the
redress process and may result in the adjudicatory agencies reviewing
each other's decisions.  Moreover, each of the adjudicatory agencies
has its own procedures and its own body of case law.\14 Each varies
from the next in its authority to order corrective actions and
enforce its decisions.

Further, the law provides for additional review of the adjudicatory
agencies' decisions--or, in the case of discrimination complaints,
even de novo trials\15 --in the federal courts.  Beginning in the
employing agency, proceeding through one or more of the adjudicatory
bodies, and then carried to its conclusion in court, a single case
can--and often does--take years.

--------------------
\14 EEOC has proposed substantial changes in the processing of
federal employees' discrimination complaints.  Intended to "address
the continuing perception of unfairness and inefficiency in the
federal sector complaint process," the proposals appear in EEOC's
Notice of Proposed Rulemaking, Federal Register, February 20, 1998,
Vol.  63, No.  34, pp.  8594-8606.

\15 In a de novo trial, a matter is tried anew as if it had not been
heard before.

      THE "MIXED CASE" SCENARIO
------------------------------------------------ Chapter STATEMENT:4.2

As we testified in July 1996, the most frequently cited example of
jurisdictional overlap in the redress system is the so-called "mixed
case," under which a career employee who has experienced an adverse
action appealable to MSPB (such as a termination or suspension of
more than 14 days) and who feels that the action was based on
discrimination, can appeal to both MSPB and EEOC.\16 Under this
scenario, the employee would first appeal to MSPB, with hearing
results further appealable to MSPB's three-member Board.  If the
appellant is still unsatisfied, he or she can then appeal MSPB's
decision to EEOC.  If EEOC finds discrimination where MSPB did not,
the two agencies try to reach an accommodation.  In the event they
cannot reach an accommodation, a three-member Special Panel is
convened to reach a determination.\17 At this point, the employee who
is still unsatisfied with the outcome can file a civil action in U.S.
district court, where the case can begin again with a de novo trial.

Eliminating the mixed case scenario would appear to make good sense,
especially in light of the record regarding mixed cases.  First, few
mixed cases coming before MSPB result in a finding of discrimination.
In fiscal year 1997, for example, of the 1,833 mixed case appeals
that MSPB decided, a finding of discrimination occurred in just 6.
Second, when EEOC reviews MSPB's decisions in mixed cases, it almost
always agrees with them.  Again during 1997, EEOC ruled on
appellants' appeals of MSPB's findings of nondiscrimination in 124
cases.  EEOC did not disagree with MSPB's findings in any of these
cases.

Under the mixed case scenario, an appellant can--at no additional
risk to his or her case--have two agencies review the appeal rather
than one.  MSPB and EEOC rarely differ in their determinations, but
an employee has little to lose in asking both agencies to review the
issue.  Eliminating the possibility of mixed cases would eliminate
both the jurisdictional overlap and the inefficiency that accompanies
it.  If the mixed case scenario were eliminated, appellants who were
dissatisfied with the outcome of the administrative redress processes
would still have recourse to the federal courts.

For purposes of comparison, it should be noted that legislative
branch employees are provided different redress rights from those
given executive branch employees.  For example, since January 1996,
congressional employees with discrimination complaints have been
required to choose between two redress alternatives, one
administrative and one judicial.\18 Under the administrative
alternative, an employee files his or her complaint with the Office
of Compliance--an independent legislative branch agency that
administers the process--with the results appealable to a five-member
board.  The board's decision can be appealed to the U.S.  Court of
Appeals for the Federal Circuit, which has a limited right of review.
Under the judicial alternative, the employee bypasses the
administrative process and files suit in U.S.  District Court, with
the opportunity to appeal the district court's decision to the
appropriate U.S.  Court of Appeals.  The effect of this arrangement
is to avoid the "two bites of the apple"--one administrative and the
other judicial--currently available to executive branch employees.

--------------------
\16 Civil Service Reform:  Redress System Implications of the Omnibus
Civil Service Reform Act of 1996 (GAO/T-GGD-96-160, July 16, 1996).

\17 Special Panels have been needed only rarely; three such panels
have been convened in the past 18 years, and none since 1987.

\18 The redress system for congressional employees was created by the
Congressional Accountability Act of 1995.  The act also specifies
that, before a congressional employee chooses either redress
alternative, he or she must go through counseling and mediation
processes.

      DUAL FILINGS AT THE POSTAL
      SERVICE
------------------------------------------------ Chapter STATEMENT:4.3

The growing pressures on the administrative redress
system--specifically, in the area of discrimination
complaints--continue a trend on which we last testified in July 1996.
The latest available data reveal that, from fiscal years 1991 to
1997, the number of discrimination complaints filed increased by 56
percent, the number of requests for a hearing before an EEOC
administrative judge increased by 94 percent, and the number of
appeals to EEOC of agency final decisions increased by about 61
percent.  Meanwhile, the backlog of requests for EEOC hearings more
than tripled, and the inventory of appeals to EEOC of agency final
decisions increased by nearly 600 percent.

In our recent analyses of the rising number of federal employee
discrimination complaints and of EEOC's growing hearings and appeals
workload, one significant factor that stands out is the Postal
Service.  The number of postal workers' complaints has represented a
disproportionate and increasing share of federal employee complaint
filings.  In fiscal year 1996, for example, postal workers
represented less than a third (31.2 percent) of the federal workforce
but accounted for fully half (50 percent) of all the discrimination
complaints filed by federal workers.  In fiscal year 1991, postal
workers represented less than a quarter (23.9 percent) of the federal
workforce but accounted for about 44 percent of the complaints filed.
Because postal workers' cases account for a large share of complaints
filed, they represent a large share of EEOC's workload, accounting
for 47 percent of the hearing requests filed with EEOC and 44 percent
of the appeals to EEOC in fiscal year 1997.

We identified two factors that may help explain why postal workers
account for so large a share of the complaint caseload.  One is that
while the number of nonpostal federal workers has been falling, the
number of postal workers has been going up.  Between fiscal years
1991 and 1996, the number of nonpostal federal workers decreased by
about 18 percent (from 2,378,934 to 1,948,009), while the number of
postal workers increased by about 18 percent (from 748,121 to
883,370).  The other factor is that postal workers have been more
likely than their nonpostal counterparts to file complaints.  In
fiscal year 1996, for example, there were 15 complaints filed for
every 1,000 postal workers, compared with 6.8 complaints for every
1,000 nonpostal workers.

According to the Postal Service Manager for EEO Compliance and
Appeals, one reason postal workers are more likely to file complaints
than other federal workers is that postal workers alleging
discrimination who are covered under collective bargaining agreements
have more redress opportunities than nonpostal federal workers
covered under collective bargaining agreements.  Unlike most other
federal workers, postal workers can pursue two courses of action
concurrently.  They can (1) file a discrimination complaint under the
federal employee discrimination complaint process and (2) file a
grievance through procedures negotiated under the collective
bargaining agreement.\19 The Postal Service told us that between 35
and 45 percent of postal workers who file a complaint under the
federal employee discrimination complaint process also file a
grievance.  This opportunity for dual filings--that is, to take
discrimination claims into two forums at once--allows postal
employees to start two formal procedures based on one allegation.
Restricting postal employees to one avenue of redress for their
discrimination complaints would therefore reduce the total number of
formal procedures arising from these complaints.

--------------------
\19 Nonpostal employees who work for agencies subject to title 5 of
the U.S.  Code and who are covered under collective bargaining
agreements must choose between these two courses of action.  By
filing a grievance, for example, a nonpostal employee forgoes the
option of pursuing a complaint under the discrimination complaint
process for federal employees.

      ALTERNATIVE DISPUTE
      RESOLUTION (ADR) OFFERS SOME
      MEASURE OF RELIEF FOR THE
      REDRESS SYSTEM
------------------------------------------------ Chapter STATEMENT:4.4

As we reported in August 1997, private companies and federal agencies
have been moving toward the use of ADR as one way of reducing the
burden of formal redress processes, particularly in the case of
discrimination complaints.\20 The term ADR covers a wide variety of
dispute resolution processes, such as mediation, usually involving
intervention or facilitation by a neutral third party.  While no
comprehensive data were available on ADR results in the private or
federal sectors, the five companies and five federal agencies that we
studied reported generally positive experiences with their ADR
programs.\21 For example, the Postal Service, which conducted a
fairly extensive evaluation of a pilot mediation program in its North
Florida District, found that mediation resolved nearly three-quarters
(74 percent) of the cases in which it was used, and reduced by about
one-half (from 43 percent to 22 percent) the proportion of informal
discrimination complaints that became formal complaints.  Based on
its pilot program experiences, the Postal Service decided to adopt
ADR throughout the organization.  The Postal Service Manager of EEO
Compliance and Appeals told us the Postal Service believes that its
ADR program, once fully implemented, will have a substantial effect
on future caseloads, both at the Postal Service and at EEOC.

Since our report, there has been further emphasis on using ADR in
workplace disputes.  In May 1998, the President established the
Alternative Dispute Resolution Working Group, chaired by the Attorney
General, to facilitate and encourage agencies' use of ADR.  In
addition, EEOC's proposals for changes in the regulations governing
the EEO complaint process for federal employees include a requirement
for all agencies to establish or make available an ADR program during
the informal or "pre-complaint" process.  Federal employees would be
able to choose between the ADR or the traditional counseling
processes without affecting their right to file a formal complaint.

Based on our work, it appears that the wider use of ADR in the
pre-complaint stage of the discrimination complaint process could
help resolve many disputes before they become formal complaints.  One
reason is that, as EEOC has reported, there may be a sizeable number
of disputes in the discrimination complaint system that may not
involve discrimination issues at all.  Rather, they reflect basic
communications problems in the workplace, and may be in the EEO
process as a result of employees' perceptions that there is no other
forum available for airing general workplace concerns.  EEOC reported
that there is little question that these types of issues would be
especially conducive to resolution through ADR.  Moreover, ADR
generally comes into play in the early stages of workplace disputes,
and practitioners have told us that it is important to intervene in
the early stages of such disputes, before the disputants' positions
solidify and become more intractable.

While our work suggests that agencies would do well to make ADR more
widely available to their employees, we need to be cautious in how
much to expect of ADR programs or whether to make them a more formal
part of the redress system.  One reason for caution is that, although
ADR programs have been widely perceived as beneficial, most ADR
programs are relatively new and generally have yet to be evaluated.
As a result, we found no comprehensive evaluative data on the extent
to which ADR has saved time and money by avoiding formal redress or
litigation.  Further, practitioners have already noted that ADR is
not always appropriate, as in cases, for example, when disciplinary
action has been taken against an employee because of a violation of
law.  Further, the "A" in ADR stands for "alternative." To the extent
that ADR has been effective in federal agencies, it has been
effective as an alternative to the more formal redress processes.
Customarily, employees participate in ADR by choice, and when they
do, they sacrifice none of their rights of recourse to the more
established, more structured, and generally better-known
administrative redress processes.  If employees are ever asked, not
merely to try ADR as an alternative to the formal redress processes,
but to rely upon ADR as a substitute for them, they may be wary of
losing some of their workplace protections.  We could, therefore, see
less use of ADR in the future rather than more.

Another new policy toward ADR that has been suggested by some--that
is, making use of ADR a mandatory part of the discrimination
complaint process--might also have drawbacks.  So far, the fact that
ADR use among federal employees is voluntary has helped ensure, at
least to some extent, that employees who participate in the process
are willing to try to make it work.  If participation in ADR becomes
mandatory, some complainants will participate in ADR merely because
they have to.  If that occurs, ADR may become just another step in an
already lengthy redress process, and help make that process even
lengthier and less efficient than it is today.

--------------------
\20 Alternative Dispute Resolution:  Employers' Experiences With ADR
in the Workplace (GAO/GGD-97-157, August 1997).

\21 The five companies were Brown & Root, Inc.; Hughes Electronics
Corporation; the Polaroid Corporation; Rockwell International
Corporation; and TRW Inc.  In the federal sector, we studied the
Department of Agriculture, the Department of the Air Force, the
Postal Service, the Department of State, and the Walter Reed Army
Medical Center.  We included the Postal Service among federal
agencies, even though it is an independent governmental
establishment, because the Postal Service is bound by most of the
same discrimination complaint processes that apply to most federal
agencies.  As mentioned earlier, however, postal workers are eligible
to file discrimination complaints and grievances concurrently.

   SUMMARY
-------------------------------------------------- Chapter STATEMENT:5

In summary, Mr.  Chairman, having noted the limited use to which
personnel demonstration project authority has been put, we believe
there is some question as to whether it has accomplished, to an
appropriate extent, the purpose for which it was intended--that is,
determining whether specific changes in personnel management policies
or procedures would result in improved federal personnel management.
We believe that enhancing the opportunities for agencies to pursue
innovative HRM policies or procedures would be likely to create more
knowledge about what works and what doesn't.  As more agencies take
steps to fashion their HRM approaches to support their missions and
goals, it would be useful for them to have as many proven HRM
approaches available to them as possible.

In another vein, our work has shown that if decisionmakers hope to
resolve the question of the extent to which federal agencies use
official time and other resources to support employee union
activities, better data will be needed.  But, recognizing as well
that data gathering can be expensive, we believe that decisionmakers
will need to balance the costs and benefits of the various options
for doing so.  This December, after OPM reports on its current effort
to collect data from the agencies, decisionmakers may have a fuller
picture of the issues involved in requiring agencies to report on the
use of these resources, and may have more information with which to
balance the costs and potential benefits of imposing this requirement
in the future.

Finally, we continue to view the administrative redress system for
federal employees as inefficient, expensive, and time-consuming.
Certain steps to relieve undue burdens on the system, such as
eliminating mixed case appeals, would appear to make good sense,
provided these actions upheld two fundamental principles:  that of
fair treatment for federal employees and of an efficiently managed
federal government.  In addition, our work on ADR suggests that, as
one way of providing some relief to the administrative redress
system, agencies would do well to make ADR more widely available to
their employees.

Mr.  Chairman, this concludes my prepared statement.  I would be
pleased to respond to any questions you or any other members of the
Subcommittee may have.

FEDERAL ORGANIZATIONS SURVEYED ON
THE USE OF OFFICIAL TIME AND OTHER
SUPPORT FOR UNION ACTIVITIES
=========================================================== Appendix I

Department of Veterans Affairs
Department of the Army
Department of the Navy
Department of the Air Force
Internal Revenue Service
Social Security Administration
Defense Logistics Agency
National Guard Bureau
Federal Aviation Administration
Bureau of Prisons
Immigration and Naturalization Service
Forest Service
National Aeronautics and Space Administration
Customs Service
Department of Labor
Defense Finance and Accounting Service
Tennessee Valley Authority
General Services Administration
Department of Energy
Environmental Protection Agency
Department of Housing and Urban Development
Department of State
National Park Service
Food Safety and Inspection Service
Indian Health Service
Federal Deposit Insurance Corporation
Bureau of the Census
Department of Education
National Oceanic and Atmospheric Administration
Equal Employment Opportunity Commission
National Labor Relations Board
Office of the Secretary of Defense
Corporation for National and Community Service
Bureau of Indian Affairs
*** End of document ***