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Reinventing Human Resource Management

Hold Managers Accountable for Adherence to Principles of Merit and Equal Opportunity

HRM08:Improve Processes and Procedures Established to Provide Workplace Due Process for Employees

Background

Workplace due process includes the various avenues of redress that employees may pursue when they believe agency management has treated them unfairly. For example, the equal employment opportunity (EEO) complaint process is available to employees who believe an action is discriminatory. An individual who has been suspended, reduced in grade or pay, or removed may file an appeal. An employee may protest other management actions by using an administrative or negotiated grievance procedure. Unions (or management) may file unfair labor practice charges or negotiability disputes.

These various avenues of redress are governed by separate legal and regulatory authorities. Due process is typically pursued first within the employing agency and, failing resolution, may then be taken before a third party for adjudication. Since enactment of the Civil Service Reform Act in 1978, four agencies adjudicate disputes between employees and agency management: the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Equal Employment Opportunity Commission (EEOC), and the Federal Labor Relations Authority (FLRA). It is possible for a mixed case arising from the same set of circumstances to be pending at the same time before two or more of these agencies.

Decisions by these agencies may be further appealed to the courts. The United States Court of Appeals for the Federal Circuit has exclusive jurisdiction over most appeals from MSPB decisions. Equal employment opportunity (EEO) and labor cases are handled by other courts, usually based on geography. These courts may conflict with one another in deciding similar cases, causing uncertainty in the law as it applies to federal employees.(1)

Internal agency processes and procedures that must be used prior to access to the third parties vary by subject matter. They also tend to be functionally stovepiped, with grievances handled by employee relations specialists, EEO complaints handled by EEO specialists, and unfair labor practice charges dealt with by labor relations specialists.

In addition to stovepiping, internal agency systems of redress tend to be driven to inflexibility by adherence to process and procedural correctness. Managers are advised of this necessity based on the fear of being overturned in a third party forum due to harmful error. Strict adherence to established administrative procedures governing the large number of appeals and complaints filed by federal employees every year has also contributed to high cost and lengthy delays involved in exercising due process rights.

Implementation of National Performance Review recommendations will dramatically change the workplace, for managers in particular. Increased flexibility and elimination of mandatory processes and procedures will give managers greater freedom to exercise judgment. For managers and employees alike, this represents high risk and an unprecedented culture change. Managers must be held accountable for their actions, and employees must have ways to take issue with perceived unfair or discriminatory treatment. Sensitive, responsive, and fast avenues of due process protect the rights of both managers and employees and provide a powerful mechanism for ensuring that managers are held accountable for their human resource management decisions.

Many federal agencies are turning to alternative dispute resolution (ADR) methods as a way to improve their internal systems of redress, with the clear objective of solving problems at the worksite and reducing the number (and the associated costs) of cases appealed to third parties. In 1990 Congress enacted two federal laws that endorse the use of ADR in the way agencies resolve disputes.(2) According to the authors of a recent article:

Both the scope and the goals of the Administrative Dispute Resolution Act are ambitious. In effect, the new law endorses the use of facilitation, mediation, and other more formal procedures (such as arbitration) as means to resolve the conflicts that inevitably arise in the conduct of federal government business. The goal of the legislation is to encourage agencies to use dispute resolution techniques that can achieve more cost-effective and satisfying results than traditional administrative procedures or litigation.(3)

The Department of Health and Human Services has made noteworthy progress with interest-based problem-solving approaches to ADR developed in cooperation with the National Treasury Employees Union. Their methods include a Negotiated Discrimination Complaint Arbitration Process, the Early Complaints Resolution Process, and the Departmental Appeals Board Mediation Service.

Need for Change

Critics of the current forums and mechanisms for due process have recommended the establishment of a single adjudicatory body for federal employee appeals, complaints, and labor disputes. The primary reason cited for change is the issue of overlapping jurisdiction in the processing of complicated mixed cases, which causes confusion and frustration on the part of everyone involved.(4) An additional complication is the jurisdiction of the federal courts with review authority over federal EEO and labor matters. While the Court of Appeals for the Federal Circuit has exclusive jurisdiction of appeals from MSPB, jurisdiction of the other courts in other areas is often based upon geography. Thus, federal employees governed by common nationwide policies and laws may "receive inequality of justice as a result of nothing more than their residence in different parts of the country."(5) Additionally, the lack of nationally uniform resolution of issues in EEO and labor matters may contribute to legal confusion about the governing laws from circuit to circuit, may increase the cost of litigation, and may be wasteful and inefficient.(6)

In addition to the procedural constraints, internal agency systems of redress are often adversarial in nature and do not have the confidence of managers or employees. They are costly and time consuming. Workplace problems that are not resolved in a timely and sensitive way impair productivity and morale and impede mission accomplishment. Use of ADR methods during the informal or early stages of due process can alleviate these problems, thereby improving the workplace climate, reducing the number of formal cases pending before third parties, and reducing the costs of litigation.

Actions

1. Eliminate jurisdictional overlaps. (2)

By fall 1994, the President should issue a memorandum directing the MSPB Chair to establish a working group to examine and make recommendations for eliminating jurisdictional overlaps in administrative due process cases. The memorandum should also direct EEOC, FLRA, and OSC to provide staff to the working group, which will draft any legislative proposals needed to eliminate mixed-case processing and submit proposed administrative and legislative proposals in a final report by spring 1995. By separate memorandum, the President should direct the Attorney General to examine the feasibility/desirability of creating a single court of appeals with nationwide jurisdiction over all people issues, such as EEO, labor relations, veterans affairs, civil service, et al. A single court would ensure greater consistency of decisions, focus legal and judicial expertise, and alleviate the workload problems in the circuit courts caused by escalating criminal and other litigation. The results of this examination should be presented to the President by spring 1995.

2. All agencies should establish alternative dispute resolution (ADR) methods and options for the informal disposition of employment disputes. (1)

By December 1994, each agency head should make available to all worksites methods and options for resolving disputes that are alternatives to established procedures governing EEO complaints, labor disputes, grievances, and appeals. The director of the Office of Personnel Management (OPM) should eliminate, by December 1994, all regulations governing internal agency grievance and appeal procedures, thus freeing agencies to tailor ADR techniques to various situations. EEOC should continue to provide guidance and assistance in application of ADR to the complaint process and should eliminate regulations requiring specific processes to be used in the informal stage, thus also freeing agencies to creatively apply ADR. OPM and EEOC should jointly develop comprehensive training programs for managers, employees, and dispute resolution specialists. Training should cover ADR techniques and options and should be made available to agencies, for example as train-the-trainer, to eliminate duplication of effort among agencies.

Cross References to Other NPR Accompanying Reports

Department of Labor, DOL04: Expand the Use of Alternative Dispute Resolution by the Department of Labor.

Improving Regulatory Systems, REG03: Encourage Consensus-Based Rulemaking; and REG06: Encourage Alternative Dispute Resolution when Enforcing Regulations.

Endnotes

1. U.S. Judicial Conference Committee on the Bicentennial of the Constitution of the United States, A History, 1982-1990 (Washington, D.C.: The United States Court of Appeals for the Federal Circuit, 1991), p. 3.

2. Administrative Dispute Resolution Act (Public Law 101-552) and Negotiated Rulemaking Act (Public Law 101-648).

3. Lawrence E. Susskind, Eileen F. Babbitt, and Phyllis N. Segal, "When ADR Becomes the Law: A Review of Federal Practice," Negotiation Journal, vol. 9, no. 1 (January 1993), p. 59.

4. Feder, David L., "Pick a Forum--Any Forum: A Proposal for a Federal Dispute Resolution Board," Labor Law Journal (May 1989), p. 268.

5. U.S. Judicial Conference Committee, p. 3.

6. Ibid., p. 4.

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