Census ADR Program (CADRP)

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  Alternative Dispute Resolution Program

CENSUS BUREAU ALTERNATIVE DISPUTE RESOLUTION PROGRAM
GUIDELINES

I. PURPOSE

To establish a program providing Alternate Dispute Resolution (ADR) services to Census Bureau employees at Headquarters and in all the Regional Offices.

This program as outlined in this document is supported by the U.S. Census Bureau and American Federation of Government Employees (AFGE) Local 2782, AFL-CIO.

II. DEFINITIONS

A. ADR- an informal process whereby parties voluntarily agree to try resolving their disputes.
B. MEDIATION - a form of ADR in which a trained neutral third party facilitates a constructive exchange of views and develops alternative resolutions.
C. ADR Program Coordinator – A neutral third party who will oversee the ADR program.
D. Mediator - a qualified neutral third party who is not a Census Bureau employee.

III. COVERAGE/BACKGROUND

A. This ADR program covers employees at Census Bureau Headquarters and the Regional Offices.

B. ADR covers management/employee and employee/employee disputes. Employee-based disputes include: EEO complaints, grievances covered by the negotiated grievance procedure or the administrative grievance procedure, actions appealable to the Merit Systems Protection Board (MSPB), and informal complaints raised outside of a formal grievance/complaint procedure. Employees shall have the right to participate in the ADR process without fear of penalty or reprisal.

C. This program has been created because use of the established appellate procedures can create an adversarial posture that any party may find difficult. In many disputes, regardless of the sources, poor communication can contribute to polarization. Additionally, the processing and investigation of a formal complaint is very expensive and time-consuming.

D. ADR offers all parties the opportunity to articulate their positions in a non-adversarial setting and to resolve their disputes with the assistance of a neutral third party. Mutually agreed upon solutions are more likely to increase satisfaction and morale of the parties to the conflict. Early resolution of disputes is cost effective and beneficial to both employees and management.

E. If ADR is not successful; an employee retains the right to pursue the formal discrimination complaint process, MSPB appeal, negotiated grievance procedure, or administrative grievance procedure, in accordance with the rules governing those procedures. (See Section IV.H, which describes the time frames associated with each of these processes.)

F. ADR is voluntary for both employees and management.

G. An employee has the right to be represented during the ADR process based upon the laws, rules, regulations, and provisions set forth in the current Labor Agreement that covers the complaint procedure(s) selected. The disputants themselves are encouraged to be the primary negotiators.

IV. ADR PROCEDURES

A. A disputant may request ADR for workplace disputes, administrative grievances, negotiated grievances, actions appealable to the MSPB or EEO complaints. Filing under the procedures, which would otherwise be controlling, is not a mandatory prerequisite to seeking ADR. A disputant may request the use of ADR at any point of the complaint process unless otherwise prohibited by contract language or law, rules, or regulations covering the complaint process being used.

B. To request ADR, a disputant should contact the ADR Program Coordinator. The phone number of the ADR Program Coordinator will be made available through the Union, Human Resources Division (HRD) and a dedicated ADR Website on the home page of the Census intranet.

In cases where the disputant believes there is alleged discrimination, the ADR Program
Coordinator will refer the disputant to the EEO Office for counseling prior to invoking the ADR process.

C. When an employee or manager either inquires about the use of ADR or is asked to participate in this program, the Program Coordinator will provide information on the ADR process.

D. Once contacted, the ADR Program Coordinator will complete the Intake Form and will contact the parties to the dispute normally within 5 workdays to determine if ADR is appropriate and agreeable to all parties.

1. If ADR is appropriate the Program Coordinator will explain the mediation process and answer questions from the parties. The Program Coordinator will have the parties commit to their decision to participate using the Agreement to Mediate Form.



2. If ADR is not appropriate such as in cases involving violence, when authoritative resolution of a matter is required in precedent-setting cases, when the matter in dispute has significant government policy implications, or when it is important to produce a full public record of the proceedings, the Program Coordinator will inform each of the parties of the reason, and the matter reverts back to the process from which the dispute originated. These kinds of cases are rare.

E. When ADR is elected; the ADR Program Coordinator will request a mediator and/or co-mediator and begin making all logistical arrangements associated with the mediation process.

F. During ADR, the mediator has no authority to impose a resolution of the dispute. The mediator will have the authority to meet separately with either party. ADR will normally be completed within 15 calendar days from the date the mediator was notified of his/her selection.

G. When the settlement is reduced to writing, the terms will be put in writing immediately by the mediator. The mediator will immediately contact the ADR Program Coordinator who will get concurrence from appropriate authorities before the ADR session ends. Unavailability of concurring authorities will not serve to delay the settlement process. The parties will sign the settlement agreement and the mediator upon receipt of necessary approvals before the ADR session ends. (* Note: Due to the time zone difference, leeway will be granted on the one hour response time for ADR settlement concurrences arising from cases in the Regional Offices.)

H. If ADR is unsuccessful, disputants will return to the process for which they are eligible. The following provisions apply to each of the formal complaint processes.

1. In cases involving negotiated grievances, the grievant must return to the step of the negotiated grievance procedure which he/she placed in abeyance while pursuing the ADR process unless both parties (i.e. grievant and/or Union representative as appropriate and the management official who participated in the ADR process) agree that the case can be forwarded to the next step. All filing deadlines for formal complaints (25 calendar days for initiating a Step (1) grievance, 10 calendar days for arranging a Step (2) grievance meeting, etc.) shall be automatically extended for an additional 10 calendar days once ADR is completed so long as the disputant initiated his/her request for ADR prior to the established deadline for such complaints.


2. In cases involving administrative grievances, the grievant must return to the stage of the administrative grievance procedure (i.e. informal or formal), which he/she placed in abeyance while pursuing the ADR process. The grievant must adhere to the following filing deadlines as outlined in the DAO 202-771, Employee Grievances, dated March 18, 1986: The grievant must raise issues under the informal grievance procedure within 15 calendar days from the date of the aggrieved event. In cases when the matter of the grievance is either (1) a disciplinary action for which the employee had advance notice and the right to reply, or (2) a summary performance rating with which the employee has expressed disagreement to the approving official in writing in advance, the employee must first present the grievance under the formal procedure. In these instances, the employee has 15 calendar days to initiate a formal administrative grievance.


3. For MSPB appeals, the 30 day time limit is extended by an additional 30 days if attempts at ADR were agreed to in writing prior to the timely filing of an appeal (that is, within 30 calendar days of the effective date, if any, of the action being appealed, or 30 calendar days after the date of receipt of the agency’s decision, whichever is later).


4. For EEO matters, where the disputant elects to participate in an ADR procedure, the pre-complaint processing period shall be 90 calendar days (i.e. the disputant will have 90 calendar days from initial contact with an EEO counselor to attempt to resolve the issue throughout ADR. If this process is unsuccessful, the disputant may return to the formal EEO process.); and


5. The ADR Program Coordinator will inform the applicable management officials that the process has not been successful. Because all matters pertaining to the ADR session must remain confidential, no negative inference may be drawn from a failure of the parties to reach a written settlement agreement.

I. The ADR Program Coordinator will follow up with a Mediation Closeout Form to each disputant following the completion of ADR. Participant/disputant identification will be confidential.

V. RESPONSIBILITIES

A. The employee shall:

1. Reserve the right to pursue the appropriate formal complaint process if the initial complaint was timely filed. (See Section IV.H, which describes the time frames, a associated with each of the formal complaint processes.)


2. Timely bring forth any complaint by:


1. Making allegations of discrimination to Census’ EEO Officer or EEO counselor within 45 calendar days of the alleged acts of discrimination prior to entering the ADR process;


2. Raising issues under the negotiated grievance procedure within 25 calendar days of the date he/she became, or should have become, aware of being aggrieved;


3. Complying with MSPB regulations contained in 5 CFR 1201.22, filing an appeal and response to appeals. It states that “an appeal must be filed no later than 30 [calendar] days after the effective date, if any, of the action being appealed, or 30 [calendar] days after the date of receipt of the agency’s decision, whichever is later. Where an appellant and an agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolution process prior to the timely filing of an appeal, however, the time limit for filing the appeal is extended by an additional 30 [calendar] days – for a total of 60 [calendar] days”.


4. Raising issues under the informal administrative grievance procedure within 15 calendar days from the date of the aggrieved event. In cases when the matter of the grievance is either (1) a disciplinary action for which the employee had advance notice and the right to reply, or (2) a summary performance rating with which the employee has expressed disagreement to the approving official in writing in advance, the employee must first present the grievance under the formal procedure. In these instances, the employee has 15 calendar days to initiate a formal administrative grievance;


3. Cooperate in good faith with the terms set forth at the beginning of ADR;


4. Provide all documents and information related to the case requested by the mediator during the ADR process;


5. Inform the ADR Program Coordinator of any special accommodations, such as auxiliary aids, interpreters, and so forth, that are needed;


6. Respond to confidential exit questionnaires or interviews with the ADR Program Coordinator after ADR is completed. These exit interviews and questionnaires are confidential and will be used solely for evaluation of the ADR program; and


7. Maintain the confidentiality of ADR.

B. Management shall:

1. Cooperate in good faith with the terms set forth at the beginning of ADR;


2. Provide all documents and information related to the case requested by the mediator during the ADR process;


3. Inform the ADR Program Coordinator of any special accommodations, such as auxiliary aids, interpreters, and so forth, that are needed;


4. Maintain the confidentiality of ADR; and


5. Respond to confidential exit questionnaires or interviews with the ADR Program Coordinator after ADR is completed. These exit interviews and questionnaires are confidential and will be used solely for evaluation of the ADR program.

C. The mediator shall:

1. Serve as a neutral third party trained in dispute resolution;


2. Assist parties in reaching mutually agreed upon resolutions to disputes;


3. Terminate ADR when it becomes apparent that continued efforts to resolve the matter through ADR would be unsuccessful;


4. Advise disputants of the ADR process, rules of confidentiality, and terms;


5. Ensure that the parties understand that the mediator has no authority to make decisions, nor is (s)he acting as an advocate for any party;


6. Maintain the confidentiality of ADR;


7. Consult with appropriate officials, as needed, for technical assistance to clarify issues or resolve concerns;


8. Place the settlement terms in writing for all cases where the disputant has invoked an established complaint process (i.e., Negotiated Grievance Procedure, Administrative Grievance Procedure, MSPB appeal, and the EEO complaint process). Where the disputant has not invoked an established complaint process, the settlement terms must be placed in writing if, as a result of the settlement, the Agency is obligated in any way;


9. Put the settlement terms in writing at the joint request of both parties for all cases where the ADR results from an informal dispute outside of an established complaint process so long as management is not a party to the conflict;


10. Prepare settlement agreements for signature by the disputants and ensure that the written agreements are given to the appropriate parties immediately upon the parties reaching agreement. The mediator shall contact Human Resources, the Office of General Counsel, and, as appropriate, EEO and/or Union officials to inform them of the agreement and obtain concurrence based on their review for legal, contract, and/or regulatory compliance, as appropriate;


11. Issue a Termination of ADR notice to each disputant at the end of ADR. This notice will inform employees of their right to pursue a formal EEO complaint, negotiated/administrative grievance on unresolved issues or an MSPB appeal. A copy will be given to all participants and the Program Administrator; and


12. Forward completed written agreements to the ADR Program Administrator with copies maintained in HRD at Headquarters.

D. The ADR Program Coordinator shall:

1. Administer the ADR program for all workplace disputes for which ADR is chosen;


2. Identify the appropriate participants for mediation normally within 15 calendar days. Inform each party why (s)he is an appropriate party for this mediation, and clarify that participant’s role in the ADR process. All designated parties must have the authority to resolve the dispute;


3. Notify the appropriate party that another party has requested ADR, and he/she has 5 workdays to decide upon participation and respond to the request. This time frame may be extended for a legitimate reason. Legitimate reasons include a party or his/her representative being away from work due to sickness, being on vacation, or on a work assignment involving travel;


4. Notify appropriate concurring offices of the ADR schedule to ensure availability of concurring officials;


5. Make necessary arrangements to accommodate persons with disabilities during ADR sessions. The organization in which the dispute arose is responsible for any associated costs;


6. Arrange for mediators from a pool of trained mediators and supplemental community sources;


7. Ensure that the reviewing parties are available during the ADR to immediately review the agreement; and


8. Forward completed settlement agreements, which result from cases where bargaining unit employees, invoked an established complaint process (i.e. Negotiated Grievance Procedure or Formal EEO complaint) to the President of AFGE, Local 2782.

VI. REVIEW OF THE ADR PROGRAM

A. First year review

1. After the program’s first anniversary in use, the Union, Management, and the ADR Program Coordinator will review the ADR program.


2. The examination of exit questionnaires and interviews will be among the tools used to determine if the ADR program is meeting the needs of disputants who used it.


3. Based upon this review the ADR program will be modified as agreed to by the parties.

B. Second year review

1. At the end of its second year anniversary, the same parties will once again review the ADR program in a manner similar to the first review unless the parties agree to modify the review process.


2. Based upon this review, the Union and the Census Bureau management will then decide whether to continue the ADR program, possibly with agreed upon modifications, or to terminate the program.