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Merit Systems Protection Board Administrative Dispute Resolution Act of 2001 (Introduced in the House)

HR 1965 IH

107th CONGRESS
1st Session
H. R. 1965
To clarify the Administrative Dispute Resolution Act of 1996 to
authorize the Merit Systems Protection Board to establish under such
Act a 3-year pilot program that will provide a voluntary early
intervention alternative dispute resolution process to assist Federal
agencies and employees in resolving certain personnel actions, and for
other purposes.

IN THE HOUSE OF REPRESENTATIVES
May 23, 2001

Mr. GEKAS introduced the following bill; which was referred to the
Committee on Government Reform, and in addition to the Committee on
the Judiciary, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned

A BILL
To clarify the Administrative Dispute Resolution Act of 1996 to
authorize the Merit Systems Protection Board to establish under such
Act a 3-year pilot program that will provide a voluntary early
intervention alternative dispute resolution process to assist Federal
agencies and employees in resolving certain personnel actions, and for
other purposes.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the `Merit Systems Protection Board
Administrative Dispute Resolution Act of 2001′.

SEC. 2. FINDINGS.

The Congress finds the following:
(1) Workplace disputes waste resources of the Federal Government, take
up too much time, and deflect managers and employees from their
primary job functions.
(2) The Merit Systems Protection Board (hereafter in this Act referred
to as the `Board’) has already taken steps to encourage agency use of
ADR before appeals are filed with the Board, including extending the
regulatory time limit for filing appeals when the parties agree to try
ADR, but high levels of litigation continue.
(3) The Board’s administrative judges, who decide appeals from
personnel actions by Federal agencies, find that by the time cases are
formally filed with the Board, the positions of the parties have
hardened, communication between the parties is difficult and often
antagonistic, and the parties are not amenable to open discussion of
alternatives to litigation.
(4) Early intervention by an outside neutral, after the first notice
of a proposed action by an agency but before an appeal is filed with
the Board, will allow the parties to explore settlement outside the
adversarial context. However, without the encouragement of a neutral
provided without cost, agencies are reluctant to support an early
intervention ADR program.
(5) A short-term pilot program allowing the Board, upon the joint
request of the parties, to intervene early in a personnel dispute is
an effective means to test whether ADR at that stage can resolve
disputes, limit appeals to the Board, and reduce time and money
expended in such matters.
(6) The Board is well equipped to conduct a voluntary early
intervention pilot program testing the efficacy of ADR at the initial
stages of a personnel dispute. The Board can provide neutrals who are
already well versed in both ADR techniques and personnel law. The
Board handles a diverse workload including removals, suspensions for
more than 14 days, and other adverse actions, the resolution of which
entails complex legal and factual questions.

SEC. 3. MERIT SYSTEMS PROTECTION BOARD ALTERNATIVE DISPUTE RESOLUTION
PILOT PROGRAM.

(a) Amendment to Chapter 5 OF TITLE 5- Chapter 5 of title 5, United
States Code, is amended by adding immediately after section 584 the
following:

`Sec. 585. Establishment of voluntary early intervention alternative
dispute resolution pilot program for Federal personnel disputes

`(a) IN GENERAL-
`(1) The Board is authorized under section 572 to establish a 3-year
pilot program to provide Federal employees and agencies with voluntary
early intervention alternative dispute resolution (in this section
referred to as `ADR’) processes to apply to certain personnel
disputes. The Board shall provide ADR services, upon joint request of
the parties, in matters involving removals, suspensions for more than
14 days, other adverse actions under section 7512, and removals and
other actions based on unacceptable performance under section 4303.
`(2) The Board shall test and evaluate a variety of ADR techniques,
which may include–
`(A) mediation conducted by private neutrals, Board staff, or neutrals
from appropriate Federal agencies other than the Board;
`(B) mediation through use of neutrals agreed upon by the parties and
credentialed under subsection (c)(5); and
`(C) non-binding arbitration .

`(b) EARLY INTERVENTION ADR-

`(1) AUTHORITY-
The Board is authorized to establish an early
intervention ADR process, which the agency involved and employee may
jointly request, after an agency has issued a notice letter of a
proposed action to an employee under section 4303 or 7513 but before
an appeal is filed with the Board.

`(2) NOTICE IN PERSONNEL DISPUTES-
During the term of the pilot
program, an agency shall, in the notice letter of a proposed personnel
action under section 4303 or 7513–
`(A) advise the employee that early intervention ADR is available from
the neutral Board, subject to the standards developed pursuant to
subsection (c)(1)(A), and that the agency and employee may jointly
request it; and`(B) provide a description of the program, including
the standards developed pursuant to subsection (c)(1)(A).
`(3) REQUEST-
Any agency and employee may seek early intervention ADR
from the Board by filing a joint request with the Board pursuant to
the program standards adopted under subsection (c)(1)(A). All
personnel dispute matters appealable to the Board under section 4303
or 7513 shall be eligible for early intervention ADR, upon joint
request of the parties, unless the Board determines that the matter is
not appropriate for the program subject to any applicable collective
bargaining agreement established under chapter 71.

`(4) CONFIDENTIALITY AND WITHDRAWAL-
The consent of an agency or an
employee with respect to an early intervention ADR process is
confidential and shall not be disclosed in any subsequent proceeding.
Either party may withdraw from the ADR process at any time.

`(5) ANCILLARY MATTER-
In any personnel dispute accepted by the Board
for the ADR pilot program authorized by this section, the Board may
attempt to resolve any ancillary matter which the Board would be
authorized to decide if the personnel action were effected under
section 4303 or 7513, including–
`(A) a claim of discrimination as described in section 7702(a)(1)(B);
`(B) a prohibited personnel practice claim as described in section
2302(b); or
`(C) a claim that the agency’s action is or would be, if effected, not
in accordance with law.

`(c) IMPLEMENTATION-

`(1) PROGRAM DUTIES-
In carrying out the program under this section,
the Board shall–
`(A) develop and prescribe standards for selecting and handling cases
in which ADR has been requested and is to be used;
`(B) take such actions as may be necessary upon joint request of the
parties, including waiver of all statutory, regulatory, or Board
imposed adjudicatory time frames; and
`(C) establish a time target within which it intends to complete the
ADR process.

`(2) EXTENSION-
The Board, upon the joint request of the parties, may
extend the time period as it finds appropriate.

`(3) ADVOCACY AND OUTREACH-
The Board shall conduct briefings and
other outreach, on a non-reimbursable basis, aimed at increasing
awareness and understanding of the ADR program on the part of the
Federal workforce–including executives, managers, and other
employees.

`(4) RECRUITMENT-
The Chairman of the Board may contract on a
reimbursable basis with officials from other Federal agencies and
contract with other contractors or temporary staff to carry out the
provisions of this section.

`(5) TRAINING AND CREDENTIALLING OF NEUTRALS-
The Board shall develop
a training and credentialing program to ensure that all individuals
selected by the Board to serve as program neutrals have a sufficient
understanding of the issues that arise before the Board and are
sufficiently skilled in the practice of meditation or any other
relevant form of ADR.

`(6) REGULATIONS-
The Board is authorized to prescribe such
regulations as may be necessary to implement the ADR program
established by this section.

`(d) EVALUATION-

`(1) CRITERIA-
The Board’s Office of Policy and Evaluation shall
establish criteria for evaluating the ADR pilot program and prepare a
report containing findings and recommendations as to whether voluntary
early intervention ADR is desirable, effective, and appropriate for
cases subject to section 4303 or 7513.

`(2) REPORT CONTENT-
The report, subject to subsection (b)(4) and
section 574, shall include–
`(A) the number of cases subject to the ADR program, the agencies
involved, the results, and the resources expended;
`(B) a comprehensive analysis of the effectiveness of the program,
including associated resource and time savings (if any), and the
effect on the Board’s caseload and average case processing time;
`(C) a survey of customer satisfaction; and
`(D) a recommendation regarding the desirability of extending the ADR
program beyond the prescribed expiration date and any recommended
changes.
The recommendation under subparagraph (D) shall discuss the
relationship between the Board’s pilot ADR program and those workplace
ADR programs conducted by other Federal agencies.

`(3) REPORT DATE-

The report shall be submitted to the President and
the Congress 180 days before the close of the ADR pilot program.’.

(b) APPROPRIATIONS-

(1) IN GENERAL-
For the purpose of carrying out the ADR pilot program
established by this section, there are authorized to be appropriated
such sums as may be necessary for each of the 3 fiscal years beginning
after the date of enactment of this Act.

(2) NO REDUCTIONS-
The authorization of appropriations by paragraph
(1) shall not have the effect of reducing any funds appropriated for
the Board for the purpose of carrying out its statutory mission under
section 1204.

(c) EFFECTIVE DATE-
The amendment made by subsection (a) shall take
effect no later than the close of the 60th day after the enactment of
appropriations authorized by subsection (b)(1) and shall remain in
effect for 3 years from the effective date.

(d) CONFORMING AMENDMENT-
The table of sections for subchapter IV of
chapter 5 of title 5, United States Code, is amended by adding after
the item relating to section 584 the following new item:
`585. Establishment of voluntary early intervention alternative
dispute resolution pilot program for Federal personnel disputes.’.

SEC. 4. MERIT SYSTEMS PROTECTION BOARD ADMINISTRATIVE JUDGES.

(a) MODIFIED PAY SYSTEM FOR ADMINISTRATIVE JUDGES-

(1) IN GENERAL-
Subchapter VII of chapter 53 of title 5, United States
Code, is amended by inserting after section 5372b the following:

`Sec. 5372c. Administrative judges of the Merit Systems Protection
Board

`(a) DEFINITIONS-
For purposes of this section–
`(1) the term `Board’ means the Merit Systems Protection Board;
`(2) the term `administrative judge’ means an employee of the Board
who is authorized by the Board to hold a hearing or to decide a case
without a hearing, but does not include–
`(A) an administrative law judge appointed under section 3105;
`(B) a member of the Board under section 1201; or
`(C) an individual appointed on other than a permanent basis;
`(3) the term `Chairman’ means the Chairman of the Board (as described
in section 1203(a)); and
`(4) the terms `pay locality’ and `comparability payment’ have the
meanings given them by section 5302.

`(b) PAY SCHEDULE FOR ADMINISTRATIVE JUDGES-

`(1) IN GENERAL-
There shall be 4 rates of basic pay (designated as
AJ-1, 2, 3, and 4, respectively) for administrative judges, and each
administrative judge shall be paid at 1 of those rates in accordance
with the provisions of this section.

`(2) RATES-

`(A) IN GENERAL-
The 4 rates of basic pay referred to in paragraph (1)
shall be as follows:

–The rate is equal to the

`For:

–following percentage of the

–rate described in subparagraph (B):

AJ-1

–70.

AJ-2

–80.

AJ-3

–90.

AJ-4

–92.

`(B) RATE DESCRIBED-
The rate described in this subparagraph is the
rate of basic pay (including any comparability payment) payable to a
member of the Senior Executive Service who–
`(i) is being paid at the second highest rate of basic pay established
under section 5382; and
`(ii) holds a position, in or under the Board, within the pay locality
of the administrative judge involved.

`(c) INITIAL APPOINTMENT AND ADVANCEMENT-

`(1) INITIAL APPOINTMENT-
A new appointment to an administrative judge
position shall be made at the AJ-1 rate. However, under regulations
prescribed by the Chairman which provide for such considerations as
the existing pay or unusually high or unique qualifications of an
individual, or a special need of the Board for an individual’s
services, the Chairman may (instead of the rate that would otherwise
apply under the preceding sentence) fix that individual’s pay at such
higher rate (under subsection (b)) as the Chairman considers
appropriate.

`(2) ADVANCEMENT-
An administrative judge who has not reached the
highest rate under subsection (b) shall be advanced in pay
successively to the next higher rate following the completion of–
`(A) 104 weeks of service at the AJ-1 rate,
`(B) 104 weeks of service at the AJ-2 rate, and
`(C) 52 weeks of service at the AJ-3 rate,
subject to the condition that the work of the judge exceeds the fully
successful level throughout the period involved (as determined based
on the judge’s performance appraisals of record over such period).

`(3) REVIEW BOARD-
If paragraph (2) cannot be applied, due to the
adoption of a pass-fail standard or any other modification in a
performance appraisal system, advancement to the next higher level
shall instead occur following–

`(A) completion of the requisite number of weeks under subparagraph
(A), (B), or (C) of paragraph (2) (as appropriate), subject to the
condition that the work of the judge is of an acceptable level of
competence throughout the period involved (as determined based on the
judge’s performance appraisals of record over such period); and
`(B) approval of such advancement by a review board (appointed by the
Chairman from among senior employees of the Board), in accordance with
such regulations as the Chairman shall prescribe consistent with the
purposes of this paragraph.

`(d) REGULATIONS-
Any regulations necessary to carry out this section
shall be prescribed by the Chairman.’.

(2) CLERICAL AMENDMENT-
The table of sections for chapter 53 of title
5, United States Code, is amended by inserting after the item relating
to section 5372b the following:
`5372c. Administrative judges of the Merit Systems Protection Board.’.

(3) EFFECTIVE DATE-
Except as provided in a succeeding provision of
this section, the amendments made by this subsection shall apply only
in the case of an individual first appointed (as an administrative
judge) on or after the first day of the first pay period of the first
calendar year beginning at least 3 months after the date of the
enactment of this Act.

(b) PROVISIONS RELATING TO ADMINISTRATIVE JUDGES FIRST APPOINTED
BEFORE EFFECTIVE DATE-(1) IN GENERAL-
An administrative judge who is
serving on the effective date described in subsection (a)(3) (other
than a judge described in subsection (a)(3)) shall remain subject to
the pay provisions that (but for this section) would otherwise apply,
unless and until converted to the pay system established by section
5372c of title 5, United States Code (as added by subsection (a)) in
accordance with the following:
(A) If, as of such effective date–
(i) the administrative judge would (disregarding this section) be
entitled to be paid at a rate of pay for grade GS-15 of the General
Schedule, and
(ii) the judge’s last 3 performance appraisals of record (as such a
judge) exceed the fully successful level,
such judge shall, effective as of such date, become subject to such
section 5372c, at the rate that would then apply if–
(I) such section had been in effect since the time of such judge’s
original appointment, and
(II) advancements had been made (since that time) in accordance with
subsection (c)(2) of such section (disregarding the matter after
subparagraph (C) thereof).
(B) If, as of such effective date, the administrative judge–
(i) is entitled to be paid at a rate of pay for grade GS-15 of the
General Schedule, but
(ii) does not satisfy the requirement under subparagraph (A)(ii),
such judge shall, upon satisfying such requirement (including, to the
extent appropriate, by taking into account up to the judge’s last two
performance appraisals of record), become subject to such section
5372c, effective as of the first day of the first applicable pay
period beginning after the date as of which such judge satisfies such
requirement, at the same rate as if first appointed on such first day.
(C) If, as of such effective date, the administrative judge is
entitled to be paid at a rate of pay for a grade below grade GS-15 of
the General Schedule, such judge shall–
(i) upon satisfying the requirement under subparagraph (A)(ii),
(ii) taking into account only performance appraisals for service
performed, at a rate of pay for grade GS-15 of the General Schedule,
on or after such effective date,
become subject to such section 5372c, effective as of the first day of
the first applicable pay period beginning after the date as of which
such judge so satisfies such requirement, at the same rate as if first
appointed on such first day.
(D) If subparagraph (B) or (C) cannot be applied, due to the adoption
of a pass-fail standard or any other modification in a performance
appraisal system, eligibility for conversion (to the rate specified in
such subparagraph (B) or (C), as appropriate) shall instead be
determined in accordance with procedures which the Chairman shall by
regulation prescribe based on subsection (c)(3) of such section 5372c.

(2) REEMPLOYMENT CASES-
In the case of an individual who–
(A) is first appointed as an administrative judge before the effective
date described in subsection (a)(3),
(B) is not serving as an administrative judge on such effective date,
and
(C) becomes reemployed as an administrative judge after such effective
date,
paragraph (1) shall be applied by substituting the date as of which
such individual becomes so reemployed for `the effective date
described in subsection (a)(3)’ each place it (or any other reference
to such effective date) appears.

(3) SPECIAL AUTHORITIES-
Notwithstanding any other provision of this
section, the Chairman may–
(A) in exceptional cases, provide for the conversion of an
administrative judge to the appropriate rate for such judge under
paragraph (1) or (2) (as applicable), without regard to any conditions
of eligibility otherwise required for such conversion; and
(B) in any case described in subparagraph (B) or (C) of paragraph (1)
(or the corresponding case under paragraph (2)) or a similar case
under subparagraph (A), exercise the authority described in the second
sentence of section 5372c(c)(1) of title 5, United States Code (as
added by subsection (a)), if the Chairman (in his or her sole
discretion) determines that the circumstances so warrant.

(c) PHASE-IN AUTHORITY-

(1) IN GENERAL-
Notwithstanding any other provision of this section,
if the Chairman (in his or her sole discretion) determines that the
circumstances so warrant, the rate of basic pay payable to an administrative judge converted to the new pay system pursuant to
subsection (b) shall, during the period described in paragraph (3), be
determined in accordance with the following:

(A) Instead of the rate of pay to which otherwise entitled under
section 5372c of title 5, United States Code (as added by subsection
(a)), such individual shall continue to be paid in accordance with the
provisions of law that would otherwise apply (if this section had
never been enacted), subject to subparagraph (B).
(B) Instead of any adjustment in pay to which such individual would
otherwise be entitled during such period under sections 5303 and
5304-5304a of title 5, United States Code, such individual shall
receive (as of the date the adjustment under such section 5303 would
otherwise be scheduled to become effective in the year involved)–
(i) a percentage adjustment under such section 5303 equal to the same
percentage adjustment taking effect in such year under section 5382(c)
of such title in the case of a member of the Senior Executive Service
described in section 5372c(b)(2)(B) of such title,
(ii) the same comparability payment (expressed as a percentage) as the
percentage taking effect in such year under sections 5303-5304a of
such title in the case of a member of the Senior Executive Service
described in section 5372c(b)(2)(B) of such title, and
(iii) an additional $3,000,
not to exceed the limitation under paragraph (4)(B).
(C) The provisions of this subsection shall continue to apply (in the
case of each administrative judge described in the matter before
subparagraph (A)) until such time as–
(i) this subsection terminates in accordance with paragraph (3); or
(ii) if earlier, the pay for such judge equals the rate that would
then (but for this subsection) otherwise be payable to such judge
under such section 5372c.

(2) CONDITION FOR APPLICABILITY-
This subsection shall apply only if
the Chairman, not later than 1 month before the effective date
described in subsection (a)(3), determines (by order published in the
Federal Register) that the phase-in authority under this subsection is
necessary.

(3) DURATION-
If the Chairman makes a determination under paragraph
(2), this subsection shall apply for the period–
(A) beginning on the effective date described in subsection (a)(3),
and
(B) ending–
(i) at the close of the year in which the Chairman determines (by
order published in the Federal Register) that the phase-in authority
under this subsection is no longer necessary; but
(ii) in no event later than at the close of the 7-year period
beginning on the effective date described in subsection (a)(3).

(4) LIMITATIONS-
In no event may the rate of pay of an administrative
judge (described in paragraph (1) in the matter before subparagraph
(A) thereof)–
(A) at any time while this subsection remains in effect, be less than
the rate that would then otherwise apply if this section had never
been enacted; or
(B) be increased, as a result of this subsection, to a rate higher
than would then otherwise apply pursuant to this section, absent this
subsection.

(5) EXCEPTION-
The Chairman may at any time provide that an
administrative judge serving as a chief administrative judge–
(A) be excluded from the application of this subsection; and
(B) instead be treated as if this subsection had never been enacted.

(6) IRREVOCABILITY-
A determination under paragraph (2), (3)(B)(i), or
(5) shall be irrevocable.

(d) DEFINITIONS-
For purposes of this section, the terms
`administrative judge’ and `Chairman’ have the meanings given them by
section 5372c of title 5, United States Code (as added by subsection
(a)).

                        author

Managing Editor

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