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MEETING MINUTES WORKPLACE DISPUTES SECTION APRIL 22, 1999
EEOC, MSPB, FLRA, OSC & OPM: HOW THEIR SYSTEMS WORK AND THE ROLE ADR PLAYS
The Workplace Dispute Section session, "EEOC, MSPB, FLRA, OSC & OPM: How their systems work and the role ADR plays," was held on Thursday, 22 April 1999 in the Auditorium at the Federal Deposit Insurance Corporation, 801 17th Street N.W., Washington, D.C. The session was chaired by Martha McClellan, Counsel, FDIC, and attended by representatives of 45 federal agencies. The session was opened at 9:10 a.m. and closed at 11:30 p.m. INTRODUCTION Martha McClellan, Counsel FDIC Welcomed the group then offered refreshments and materials, which included background information on each agency. After announcing upcoming WPDS sessions, introduced Jeffrey Senger, Deputy Senior Counsel for Dispute Resolution: Mr. Senger discussed the Interagency ADR Working Group created by Executive Order in May 1998, in response to the ADR Act of 1996. Attendees were encouraged to attend sessions presented by the other Working Group sections (Civil Enforcement, Claims Against the Government, Contracts/Procurement) and to visit the IADRWG Website: www.financenet.gov/iadrwg/. The Website, which has had 10,000 hits so far, includes meeting minutes, agendas, materials and an opportunity to e-mail other working group participants. The working group will provide a total of 70 meetings throughout the year. He also stated that the goal of the Working Group is to assist federal agencies in developing new or substantially improving ADR programs by the end of the year. At the end of the year, all agencies will be required to submit a report on their ADR program to the Working Group. For questions or assistance contact Jeffrey Senger at (202) 616-9473 or jeffrey.m.senger@usdoj.gov. Introduced James Lawrence, Senior Counsel, FDIC, who presented an overview of the panel discussion, then introduced members of the panel. OVERVIEW The purpose of this panel discussion is twofold: (1) to respond to requests for an introduction and overview of various federal agencies already established to deal with workplace disputes and (2) to explain the role ADR plays within the spectrum of each agency's jurisdictional responsibilities. The panel discussion is designed to provide an opportunity for audience members to ask questions after each panel member presentation as well as a general Q&A at the end of the meeting. PANEL DISCUSSION I. Nicholas M. Inzeo Deputy Legal Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION In 1992, with the first passage of the Administrative Dispute Resolution Act, the EEOC became interested in enhancing the ability of the government to resolve disputes without going through the entire formal administrative or judicial process. As a result, EEOC established in its regulation an incentive for agencies to use dispute resolution processes. During the pre-complaint counseling process an agency has 30 days after an initial inquiry to begin pre-counseling to try to find an easier solution. If the agency has an ADR program or makes one available and disputants decide to use it in the pre-complaint stage, they are instead allowed 90 days. The current proposed regulation requires that agencies establish or make an ADR program available during the counseling, pre-complaint and formal complaint process. Therefore, if there is no process available within the agency, one must be made available regardless of program type. Small agencies or agencies without the resources to establish ADR programs can use resources of other agencies' or other programs such as the Shared Neutrals Program or the Federal Mediation Conciliation Services. Compliance with an agreement (West vs. Gibson): In situations where parties to a dispute or dispute resolution process reach a settlement, it is absolutely necessary for the agencies to recognize and understand that there is a delicate balance that exists. The balance is served by agencies carrying out their obligations. Agencies must understand that individuals feel insecure and are looking for a certain definiteness by reaching a resolution or receiving a decision. Therefore, in order for the dispute resolution process to work, it is necessary for agencies to carry out what is agreed in the settlements. II. William Wiley Chief Counsel to the Chairman U.S. MERIT SYSTEMS PROTECTION BOARD In 1979, when Congress abolished the Civil Service Commission, MSPB was created with the responsibility of overseeing the Merit Systems. It is an independent agency whose chairman reports directly to the President. The three members each serve seven year fixed terms that overlap, and members can not be removed except for cause. The members can not all be from the same party but are appointed by the President. MSPB's responsibility is to conduct formal hearings and issue decisions on matters that are within its jurisdiction. Decisions effectively replace those that you might see from a district court. Final decisions are appealable to the Federal Circuit Court of Appeals, then to the Supreme Court. MSPB has the responsibility of overseeing systems and protecting career employees, providing a neutral review of more significant personnel actions. Actions covered are limited and include only significant adverse actions such as removals, demotions, and long suspensions, which take up 50% of the yearly workload. Retirement issues fill 25% and RIFS 12%. MSPB's jurisdiction does not cover promotion issues. However, there are several special appellate categories that are exceptions. These include Veterans, Whistleblowers, the White House, and employees with Title 7 discrimination complaints. Appeals to the MSPB begin with a formal written appeal, which is then assigned to an Administrative Judge. Forty percent are dismissed for lack of jurisdiction, but of those not dismissed, 50-60% are settled. The next step in the process is adjudication in which a written decision is issued in 120 days. In 1998, GAO found that from beginning to end, the MSPB process costs the government $75K. MSPB can offer several remedies, which include awarding back pay, benefits, attorney fees, money damages for victims of discrimination and whistleblowers. It also has the authority to fine senior managers by withholding pay if they don't comply with a MSPB decision, or by preventing future government employment. For ten years ADR has been a part of the MSPB process, which is evident in the 70% settlement rate of adverse actions. MSPB has several pending ADR projects. First, the Board is considering extending the 30-day time limit for filing an appeal with MSPB if engaged in an agency ADR program. Second, the Board is searching for ways that the Judges can become involved earlier in the process. MSPB is looking for one or two agencies that would be interested in having judges become involved in either the proposal stage or immediately after an action is decided. Finally, MSPB is starting a new training program with GWU and a private law firm. It will be a two-week ADR training program in actions that would otherwise be appealable to MSPB. The program is expected to begin in September. For questions call William Wiley at (202) 653-MSPB ext. 1319 or wiley@mspb.gov III. Fern Feil-Kaufman Director, Collaboration and ADR Program U.S. FEDERAL LABOR RELATIONS AUTHORITY The mission of the FLRA is to ensure compliance with the Federal Services Labor Management Relations Statute. The three main components of the FLRA are the Authority, the Office of General Counsel, which performs investigations and if necessary prosecutions of cases, and the Federal Service Impasses Panel, which deals with bargaining impasses. The Collaboration and ADR Program (CADR) is a part of all components. Each component offers ADR in a different way, but all programs are voluntary. The Goal of the FLRA is to enhance labor-management relations throughout government. The Office of General Counsel deals with the most ADR programs. Even before CADR was developed the General Counsel used the Facilitation Intervention Training and Education program (FITE). When an unfair labor practice is filed, and before an investigation, the General Counsel asks the parties if they want to sit down and try to find a resolution. If a party is a "frequent filer" a larger scale intervention is done to try to resolve as many conflicts as possible at one time by dealing with the underlying problems. The General Counsel's office also offers training programs such as Statutory Training to give one a better understanding of their rights under the Statute. When any negotiability appeal is filed, a neutral calls the parties to ask if they are interested in using ADR. If ADR doesn't produce a resolution, the case is turned over to someone else to make a decision. The Impasses Panel, as part of their primary function, tries to help people resolve disputes on their own before they make the decision. One of the panel representatives first mediates the case. Before a case that may not have chosen ADR is ready to go before the ALJ, the parties will get a call from a Settlement Judge. Even though these cases are further into the process, the judge gives them another opportunity to choose ADR. The FLRA does provide some preventative, interest-based, relationship building training to other agencies. However, because resources are limited, training is offered to those agencies having lots of cases going to FLRA, and where there is a poor union-management relationship. All sections support ADR and are trying to institutionalize it into a permanent part of the process. The goal of the FLRA is to offer ADR at every level. The CADR Office helps to coordinate and support the three components and offers some services directly. All employees have been trained in ADR. FLRA has been able to monitor success of ADR at several levels. Negotiability has a 65-70% settlement rate. Both an immediate follow-up and a six-month follow up are still positive. The ALJ system claims a 92% settlement rate and the OGC has good statistics as well. IX. Cary P. Sklar Senior Advisor to the Special Counsel U.S. OFFICE OF SPECIAL COUNSEL The role of the OSC is to enforce the Merit Systems principles. It is an impartial, independent agency that is not an employee or agency advocate. The OSC has five main functions. (1) To investigate complaints of prohibitive personnel practices filed with the OSC. (2) When it has been concluded that the complaint is meritorious, to bring corrective action for a complaint and to prosecute disciplinary actions against a manager that has committed a prohibited personnel practice. (3) To provide a secure channel for employees to make disclosures of government wrongdoing. (4) To issue advisory opinions on Hatch Act questions and if necessary to prosecute. (5) To provide additional rights for veterans and armed services. OSC's primary function is to investigate allegations. There are twelve prohibited personnel practices. There are two primary ones: b(9)'s are allegations of reprisal against an employee who has engaged in an appeal process; b(8)'s are allegations of reprisal against an employee who has made a protected disclosure (of wrongdoing in the government). It must be shown that the person who took personnel action against the employee had knowledge of the protected disclosure and that it was a contributing factor in taking personnel action. It is up to the agency to show clear and convincing evidence that they would have taken personnel action without the disclosure. The initial investigation is done by the Complaints Examining Unit which processes 1800 complaints per year. All materials are reviewed and checked for jurisdiction. If there is sufficient evidence, the matter is passed to the Investigation Division, where in-person interviews are conducted and a report is prepared. The report is then analyzed by the Prosecution Division to determine if there is sufficient evidence to prosecute a case before MSPB. If there is, then the matter is reported to the agency after which if no attempt is made to correct the practice, OSC files a corrective action petition. OSC is working on several new initiatives. It is working with agencies in an attempt to educate and train managers and employees about their rights and responsibilities. Forums are set up with private practitioners and agency representatives to find out what is and is not liked about OSC and what changes they would like to see. Additional staff has been hired to deal with the backlog of cases. One way the OSC is trying to incorporate ADR is by developing an ADR program for the Investigation Division. Complainants and the agency will then be invited to use ADR before choosing the prosecution route. Any questions can be directed to Cary Sklar at (202) 653-5327. VIII. Gary Wahlert Senior Employee Relations Specialist U.S. OFFICE OF PERSONNEL MANAGEMENT The U.S Office of Personnel Management's jurisdictional responsibilities, in terms of employee conflict, include position classification appeals, fair labor standards act claims, retirement cases, benefits area and agency administrative grievance systems. A large part of the OPM function is in intervention. Its Website contains examples of settlement language. Soon to be available in July 1999 is the updated ADR Resource Guide, which covers seven ADR programs. A one-page description of each program will explain why the programs were set up, how they were set up, and how they work. Points of contact for each program are included as well as information on the Shared Neutrals Program and other valuable resources. One important ADR initiative sponsored by OPM is the Award for the best workplace ADR program. Any questions about OPM can be directed to (202) 606-2920 More information on the agencies involved in this panel can be found on the following Websites: EEOC - www.eeoc.gov/statauth.html www.eeoc.gov/plan/mission.html MSPB - www.mspb.gov/merit002.html www.fpmi.com/MSPB/MSPBIntro.html FLRA - www.flra.gov/10.html www.flra.gov/24.html |