Grievance appeals process: What happened to streamlining?

Although the Civil Service Reform Act was supposed to streamline the grievance appeals process available to feds, that has not happened. There are four independent agencies that can hear federal employee complaints or appeals, with the court system as a fifth, and last, resort.

This complicated appeals process costs big bucks, according to a recent General Accounting Office report, which said the four agencies spent $54.2 million in fiscal 1994 listening to appeals.

Let's take a look these agencies and the pieces of the appeals process that each handles.

* The Merit Systems Protection Board (MSPB) hears appeals of firings or suspensions as well as other significant personnel actions.

* The Equal Employment Opportunity Commission (EEOC) hears employee discrimination complaints and reviews final decisions on complaints made by agencies.

The Office of Special Council investigates employee complaints associated with "whistle blowing" retaliation.

* Employees who are covered by collective bargaining agreements take their complaints to the Federal Labor Relations Authority.

Although each of the four agencies has specific jurisdiction over specific types of cases, their roles often overlap, resulting in some "mixed cases" slowly wending their way from one body to another. When that happens, one agency may be reviewing the decision of another. As mentioned earlier, the law also provides for further review of these agencies' decisions by the federal courts.

In a typical "mixed case," a fired employee can appeal to the MSPB as well as to the EEOC because of potential discrimination issues. This system allows a fed to take a case from one agency to another until he/she gets some satisfaction.

Still not satisfied? Take it to the courts. This is a time-consuming process, according to GAO. The average amount of time for the EEOC to receive and resolve an appeal is more than 800 days. Part of the reason for the unusually long processing time is the shortage of staff at the EEOC.

Appealing is also a growth area in an otherwise downsizing government, according to GAO. Feds file workplace discrimination complaints at a rate five times greater than that found in the private sector.

Private-sector employees usually cannot appeal the outcome of a grievance to an independent agency other than the courts. If they do go to court, they have to cite a specific law that has been violated, unlike federal employees, who have the right to appeal to the federal courts a decision made by one of the four bodies established to hear employee appeals and grievances.

This complex appeals process has a negative impact on the willingness of many federal managers to deal with conduct and performance issues. Many managers feel that the cards are stacked against them, and they are reluctant to take adverse actions against employees due to all the avenues of appeal that are open to federal employees.

Although the potential for abuse certainly exists, I'm not in favor of throwing the baby out with the bath water. I believe that feds need certain rights and protections because they work in a unique environment.

In the private sector, performance is measured against the bottom line, and that provides a convenient yardstick by which to measure performance. That's not the case in the federal government.

Often there is no "bottom line" against which to measure a particular employer/employee grievance. The picture may not be as clear, and it may be necessary to provide employees with greater protections than are afforded their private-sector counterparts.

Here I part company with GAO, which advocates looking to the private sector for a solution to the "layering" of the grievance/appeals procedures within the government. GAO notes that in the private sector, final authority for decisions involving disciplinary actions usually rests with the president or chief executive officer of a company.

In some cases, that authority is delegated to the personnel director or employee relations manager, while some companies have alternative dispute-resolution (ADR) mechanisms in place, which may involve mediators and/or outside arbitrators. Some companies have ombudsmen.

In addition, GAO said it has "not studied the effectiveness of these private-sector practices, but they may provide insight for dealing with redress issues in a fair but less rigidly legalistic fashion than that of the federal redress system." Sure, they may "provide insight," but they also may not.

If GAO hasn't studied the effectiveness of these practices, what is the agency really saying? Why doesn't it study the effectiveness of private-sector practices and then tell Congress what it found, followed up by a recommendation to incorporate proven methods in the government?

GAO also suggested the use of so-called ADR mechanisms within the federal government. But the agency quickly added that ADR methods are not widely practiced, and those that are are in their early stages. That's another way of saying we don't know anything about them. Thanks a lot, GAO.

GAO closed its testimony before the House Subcommittee on Treasury, Postal Service and General Government by saying, "With so many facets of the civil service under review, no area should be overlooked that offers the opportunity for improving the way the government operates."

Now who can be against that? That's like saying, "Everyone should love their mother because it's the right thing to do." If I were the chairman of the subcommittee, I'd throw the GAO guy out and tell him to come back after he had done his homework. Instead, he probably got a pat on the back and was encouraged to do "further study." After all, that is what GAO does best - study. Right?

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Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week and the author of Bureaucratus Moneyline, a personal finance newsletter for federal employees, available by subscription on FCW's Web page at http://www.fcw.com.

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