United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Following a Notice of Hearing in the above-referenced case, former Panel Member Gilbert Carrillo conducted a factfinding hearing on October 27 and 28, 1998, on the issue of an alternative dispute resolution (ADR) procedure for the processing of bargaining-unit employee complaints in the civil rights area. The Department of the Treasury, U.S. Customs Service, Washington, D.C. (Employer) essentially proposed that employees be permitted to elect the negotiated ADR procedure either in lieu of the pre-complaint portion of the statutory procedure for resolving Equal Employment Opportunity (EEO) complaints, or as a preliminary step to the dispute resolution procedure set forth in the parties’ master collective bargaining agreement (MCBA). The National Treasury Employees Union (Union), on the other hand, proposed to establish an alternative to the statutory process which would supplant the dispute resolution procedures set forth in the parties’ current MCBA.

    Following issuance of the Factfinder’s Report on February 15, 1999, which contained a recommendation for settlement, each party, after consultation with the other and the Executive Director of the Panel, filed a response to the recommendation contained therein. The Employer initially notified the Executive Director of the Panel that although it had "reservations" about the Factfinder’s recommendation, it was willing to accept the recommendation in the interest of resolving the parties’ "long-standing dispute." Given the Union’s written "objections" to the recommendation, however, which it had not previously seen, the Employer requested, and was granted, an opportunity to submit a second, more detailed response. The Union’s written response advised the Executive Director that its efforts to secure a signed, written agreement from the Employer reflecting the parties’ acceptance of the Factfinder’s recommendation were unsuccessful. In the absence of such an agreement, it proposed that the Panel adopt several modifications and a clarification to "improve" the recommended process "even more," which are summarized more fully below. The Union made clear that the Factfinder’s recommendation is acceptable to it, emphasizing that it "enthusiastically supports" the recommendation.

    The Employer’s second written response stated its position on the Union’s proposed modifications and clarification, and proposed some modifications of its own (also summarized more fully below). Shortly after receiving the Employer’s final submission, the parties met informally with the Executive Director in a last-ditch effort to resolve their differences and reach a voluntary settlement of the dispute. While the parties’ positions were clarified, the issue was not resolved. The Panel has now considered the entire record, including Mr. Carrillo’s findings and recommendation.

    The proposals and positions of the parties regarding the above-stated issue at impasse are set forth in the attached Factfinder’s Report.

1. The Union’s Position

    In its written response, the Union proposes that the Panel modify the Factfinder’s recommendation as follows: (1) allow the grievant the option of making an election to use the alternative process prior to completing the 90-day pre-complaint period, thus shortening the process; (2) eliminate the Dispute Resolution Panel; (3) eliminate mediation between the "responsible" Union and management officials or make it permissive; (4) make mediation mandatory following production of the Report of Investigation (ROI); (5) reduce the cap on the Union’s share of the cost of each arbitration to $500; and (6) move the triggering date of the ROI to the point at which the grievant elects to use the alternative process. In addition, the Union requests that the Panel clarify the Factfinder’s recommendation to acknowledge expressly that grievants may seek resolution of any related non-EEO allegations through the alternative process as long as they are joined with an EEO claim.

    The Union basically asserts that its proposed modifications would shorten the alternative process, reduce its cost, enhance the likelihood of settlements, and make it more attractive to the Union and grievants by reducing the financial burden on the Union. The Union contends that the Factfinder’s recommendation is unclear on the question of whether non-EEO allegations that are related to an EEO claim may be resolved through the alternative process and urges the Panel to clarify the recommendation to avoid bifurcation of related issues. The Union "does not construe the recommended order as barring such joinder of claims" but thinks it is necessary for the procedure "to be exceedingly clear about the grievant’s rights to resolve related non-EEO violations through the alternative process so long as an EEO claim is made." In this regard, it maintains that preventing bifurcation would promote economy in dispute resolution resources.

2. The Employer’s Position

    In its written response to the Union’s submission, the Employer proposes that the Panel: (1) adopt the Factfinder’s recommended 90-day period for the pre-complaint stage or, alternatively, modify the recommendation to permit the grievant to make an election prior to completion of the 90-day period; however, the acceptance/dismissal stage should be moved so that it commences once the formal election is made, and the Employer should be allowed 40 to 60 days to make its acceptance/dismissal determination; (2) adopt the Factfinder’s scheme which provides for alternative dispute resolution efforts at a point subsequent to the election of procedure but before commencement of the investigation or, alternatively, modify the Factfinder’s recommendation to combine the Dispute Resolution Panel and Reviewing Officials phases into a single procedure consisting of a joint, two-person Dispute Resolution Panel that would hear both sides of the dispute, use mediation/facilitation assistance if mutually agreed to, and deliberate in an attempt to resolve the dispute; (3) adopt the Factfinder’s recommendation that mediation following the ROI be permissive; (4) modify the recommendation to require the Union to pay half of the cost of arbitration or, alternatively, adopt the Factfinder’s recommendation of a cap of $750 on the Union’s share of that cost; (5) adopt the recommendation establishing a triggering date for the ROI that follows the completion of deliberations by the Dispute Resolution Panel and/or Reviewing Officials; however, modify the Factfinder’s recommendation to afford the grievant and appropriate EEO Officer an opportunity to review and comment on the investigative file prior to issuance of the ROI; (6) clarify the Factfinder’s recommendation to expressly limit use of the alternative process to EEO issues; and (7) modify the recommendation by establishing a 6-month pilot of the alternative process, at the conclusion of which either party could seek to renegotiate any matter in the agreement underlying the alternative process.

    The Employer asserts that the modifications and compromises it proposes will increase the likelihood for voluntary settlement of disputes, conserve its scarce resources, and protect the interests of both parties. With respect to the question of bifurcating EEO from non-EEO issues, the Employer contends that there is no ambiguity in the Factfinder’s recommendation; rather, it is clear that the alternative process recommended "is designed solely for EEO issues." The Employer argues that "bifurcation of issues is an understood aspect of the recommended order and is integral to creating an efficient, effective and fair alternate EEO process."

    After a full and careful review of the record, we find that neither party has provided a compelling justification for modifying the Factfinder’s recommendation in this case. This conclusion is heavily influenced by two factors. First, at different points subsequent to its issuance, the parties accepted the recommendation, and now only seek modifications which, from their varying perspectives, would improve upon it. More importantly, however, we are persuaded that the Factfinder has combined his considerable expertise in the civil rights area with the raw materials provided by the parties to fashion an innovative approach to ADR for civil rights issues which skillfully balances all of the equities involved. In our view, the parties should develop a body of experience with the procedure before modifications are undertaken. Finally, concerning their differing interpretations of the Factfinder’s recommendation on the bifurcation of related EEO and non-EEO issues, for guidance the parties are directed to pages 22 and 23 of the Factfinder’s Report, where the matter is addressed. Accordingly, we shall order the parties to adopt the Factfinder’s recommendation.

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to the Panel’s regulations, 5 U.S.C. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

The parties shall adopt the Factfinder’s recommendation.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

May 13, 1999

Washington, D.C.