United States General Accounting Office

GAO Testimony

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

Summary 

Civil Service Reform: Observations on

Demonstration Authority, the Use of Official

Time, and the Administrative Redress

System

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.

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Statement 

Civil Service Reform: Observations on

Demonstration Authority, the Use of Official

Time, and the Administrative Redress

System

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

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.

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Civil Service Reform: Observations on

Demonstration Authority, the Use of Official

Time, and the Administrative Redress

System

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.

Demonstration

Project Authority

Provides an

Opportunity to Test

Human Resource

Management

Practices That May

Better Support

Agencies’ Missions

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

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.

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Civil Service Reform: Observations on

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Time, and the Administrative Redress

System

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

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.

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Civil Service Reform: Observations on

Demonstration Authority, the Use of Official

Time, and the Administrative Redress

System

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.

Support for Federal

Employee Union

Activities Is an

Established Practice,

but the Extent of That

Support Is Unknown

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

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.

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Civil Service Reform: Observations on

Demonstration Authority, the Use of Official

Time, and the Administrative Redress

System

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.

The Use of Official Time

for Union Activities Is an

Established Practice

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

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Demonstration Authority, the Use of Official

Time, and the Administrative Redress

System

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

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

10In 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.

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Time, and the Administrative Redress

System

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

Resources used for

union activities

Number of

organizations that

provided resources in

fiscal year 1996a Total reported data Total estimated data

Total estimated and

reported data

Hours of time that

employees used for union

activities

32 1,775,917 723,672 2,499,589

Number of employees who

used official time for union

activities

27 4,607b 6,320 10,927

Number of employees who

spent 100 percent of their

time on union activities

23 379 79 458

aThe 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.

bIn 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.

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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

Resources used for

union activities

Number of

organizations that

provided resources in

fiscal year 1996a Total reported data Total estimated data

Total estimated and

reported data

Official time used for union

activities

29 $22,426,692 $27,095,784 $49,522,476

Office space, equipment,

telephone use, and

supplies

23 1,659,547 3,364,964 5,024,511

Travel and per diem 22 1,007,010 2,172,696 3,179,706

aThe 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

11We 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.

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System

No Reporting

Requirement Has

Been in Place, but an

OPM Effort Is

Currently Under Way

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.

12In 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.

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System

The Administrative

Redress System

Remains

Overburdened, but

Greater Use of

Alternative Dispute

Resolution May Offer

Some Relief

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.

A System Marked by

Jurisdictional Overlaps

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 trials15—in the federal courts. Beginning in the employing agency,

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

14EEOC 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.

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

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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.

The “Mixed Case” Scenario 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

16Civil Service Reform: Redress System Implications of the Omnibus Civil Service Reform Act of 1996

(GAO/T-GGD-96-160, July 16, 1996).

17Special Panels have been needed only rarely; three such panels have been convened in the past 18

years, and none since 1987.

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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.

Dual Filings at the Postal

Service

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.

18The 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.

Page 13 GAO/T-GGD-98-160
Statement 

Civil Service Reform: Observations on

Demonstration Authority, the Use of Official

Time, and the Administrative Redress

System

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.

19Nonpostal 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.

Page 14 GAO/T-GGD-98-160
Statement 

Civil Service Reform: Observations on

Demonstration Authority, the Use of Official

Time, and the Administrative Redress

System

Alternative Dispute

Resolution (ADR) Offers

Some Measure of Relief for

the Redress System

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

20Alternative Dispute Resolution: Employers’ Experiences With ADR in the Workplace

(GAO/GGD-97-157, August 1997).

21The 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.

Page 15 GAO/T-GGD-98-160
Statement 

Civil Service Reform: Observations on

Demonstration Authority, the Use of Official

Time, and the Administrative Redress

System

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

Page 16 GAO/T-GGD-98-160
Statement 

Civil Service Reform: Observations on

Demonstration Authority, the Use of Official

Time, and the Administrative Redress

System

become just another step in an already lengthy redress process, and help

make that process even lengthier and less efficient than it is today.

Summary 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.

Page 17 GAO/T-GGD-98-160
Appendix I 

Federal Organizations Surveyed on the Use

of Official Time and Other Support for

Union Activities

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

(410256) Page 18 GAO/T-GGD-98-160
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