I
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 Judici-
ary, for a period to be subsequently determined by the Speaker, in each
case for consideration of such provisions as fall witin 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 es-
tablish under such Act a 3-year pilot program that will
provide a voluntary early intervention alternative dispute
resolution process to assist Federal agencies and employ-
ees in resolving certain personnel actions, and for other
purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Merit Systems Protec-
tion 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 (here-
after in this Act referred to as the ‘‘Board’’) has al-
ready 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 de-
cide appeals from personnel actions by Federal agen-
cies, find that by the time cases are formally filed
with the Board, the positions of the parties have
hardened, communication between the parties is dif-
ficult and often antagonistic, and the parties are not
amenable to open discussion of alternatives to litiga-
tion.
(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 en-
couragement of a neutral provided without cost,
agencies are reluctant to support an early interven-
tion ADR program.
(5) A short-term pilot program allowing the
Board, upon the joint request of the parties, to in-
tervene early in a personnel dispute is an effective
means to test whether ADR at that stage can re-
solve disputes, limit appeals to the Board, and re-
duce 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 per-
sonnel dispute. The Board can provide neutrals who
are already well versed in both ADR techniques and
personnel law. The Board handles a diverse work-
load 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 ALTER-
NATIVE DISPUTE RESOLUTION PILOT PRO-
GRAM.
(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:
‘‘§ 585. Establishment of voluntary early intervention
alternative dispute resolution pilot pro-
gram for Federal personnel disputes
‘‘(a) IN GENERAL.—
‘‘(1) The Board is authorized under section 572
to establish a 3-year pilot program to provide Fed-
eral 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 un-
acceptable performance under section 4303.
‘‘(2) The Board shall test and evaluate a vari-
ety of ADR techniques, which may include—
‘‘(A) mediation conducted by private
neutrals, Board staff, or neutrals from appro-
priate 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 re-
quest, 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.—Dur-
ing 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 inter-
vention ADR is available from the neutral
Board, subject to the standards developed pur-
suant 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 fil-
ing 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 re-
quest of the parties, unless the Board determines
that the matter is not appropriate for the program
subject to any applicable collective bargaining agree-
ment established under chapter 71.
‘‘(4) CONFIDENTIALITY
AND
WITHDRAWAL.—
The consent of an agency or an employee with re-
spect to an early intervention ADR process is con-
fidential and shall not be disclosed in any subse-
quent 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 nec-
essary upon joint request of the parties, includ-
ing 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 of-
ficials 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 sec-
tion.
‘‘(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 con-
taining findings and recommendations as to whether
voluntary early intervention ADR is desirable, effec-
tive, 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 re-
sults, and the resources expended;
‘‘(B) a comprehensive analysis of the effec-
tiveness of the program, including associated
resource and time savings (if any), and the ef-
fect on the Board’s caseload and average case
processing time;
‘‘(C) a survey of customer satisfaction; and
‘‘(D) a recommendation regarding the de-
sirability of extending the ADR program be-
yond 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 sub-
mitted 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 sec-
tion, 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 ap-
propriations by paragraph (1) shall not have the ef-
fect 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 au-
thorized by subsection (b)(1) and shall remain in effect
for 3 years from the effective date.
(d) CONFORMING AMENDMENT.—The table of sec-
tions 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 resolu-
tion pilot program for Federal personnel disputes.’’.