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NAO
202-715
Eff:
1/21/97; Iss: 2/5/97
NOAA ALTERNATE DISPUTE RESOLUTION PROGRAM
SECTION 1. PURPOSE.
.01 This Order implements provisions and describes
National Oceanic and Atmospheric Administration (NOAA)
responsibilities and procedures for complying with
the Administrative Dispute Resolution Act (PL 101-552).
This Act encourages Federal agencies to use alternate
dispute resolution (ADR) methods to avoid or resolve
disputes.
.02 As part of NOAA's required compliance/enforcement
responsibilities under the Act, NOAA will design, establish,
and test an ADR Pilot Program. NOAA's ADR Pilot Program,
developed by NOAA management and Union representatives,
will use mediation as an alternative to NOAA's Equal
Employment Opportunity (EEO) complaint process, negotiated
grievance procedure, or the administrative grievance
procedure.
.03 This Order outlines methods by which disputes
can be settled informally, within shorter timeframes,
and to the satisfaction of all parties. If NOAA's ADR
Pilot Program is successful, a permanent program will
be established. If the goals of the pilot program are
not realized, the program may be modified or terminated.
SECTION 2. REFERENCES.
.01 29 CFR 1614, Federal Sector EEO, dated July 1,
1995.
.02 Department Administrative Order (DAO) 202-771,
Employee Grievances, dated March 18, 1986.
.03 DAO 215-5, Discrimination Complaint Process and
DOC Handbook for Processing Discrimination Complaints,
dated June 12, 1986.
.04 NOAA Administrative Order (NAO) 202-711, Labor-Management
Relations Procedures, dated November 29, 1988.
.05 NAO 215-1, NOAA's EEO/Civil Rights Program, dated
May 16, 1990.
SECTION 3. DEFINITIONS.
.01 ADR - ADR is an informal process whereby parties
voluntarily agree to attempt resolution of their differences.
.02 Mediation - Mediation is a form of ADR in which
a trained neutral third party facilitates a constructive
exchange of views and develops previously unrecognized
alternatives.
SECTION 4. BACKGROUND.
.01 The Human Resources Management Office (HRMO) and
the servicing Human Resources Offices serve as the
focal point for client-based human resource management
concerns. The Civil Rights Staff serves as the focal
point for EEO concerns.
.02 When disputes occur between management and employees,
or between employees, traditional appellate procedures
have been used to resolve these disputes. Employee-based
disputes between employees and management at NOAA fall
into three basic categories: EEO, labor-management
relations (LMR), and employee-management relations
(EMR). Listed below are the existing appellate procedures
available under each category:
a. EEO - Individuals consult EEO for allegations of
discrimination based on race, color, religion, age,
sex, national origin, mental/physical handicap, or
reprisal for prior participation in the EEO complaint
process. Employees not covered by a negotiated grievance
procedure must use NOAA'sdiscrimination complaints
process as outlined by 29 CFR 1614.
b. LMR - Individuals covered by a collective bargaining
agreement that includes a negotiated grievance procedure
must use that procedure unless that matter is specifically
excluded. Employees covered by a negotiated procedure
who want to raise issues based upon discrimination
as defined by 29 CFR 1614 must formally elect to use
the negotiated grievance system or NOAA's EEO complaint
system. THEY MAY NOT USE BOTH.
c. EMR - Individuals not covered by a collective bargaining
agreement must follow the administrative grievance
process as set forth in DAO 202-771.
.03 ADR is needed because use of the established appellate
procedures often creates an adversarial posture that
all parties find difficult. In many disputes, regardless
of the sources, poor communication contributes to polarization.
Additionally, processing and investigating formal complaints
are very expensive and time-consuming. Cost savings
and avoidance become increasingly important when budget/staff
resources are limited.
.04 ADR offers all parties the opportunity to articulate
their positions in a non-adversarial setting and to
resolve their disputes with a neutral third party.
Mutually-agreed-upon solutions increase satisfaction
and morale of all parties. Managers and employees enhance
problem-solving skills. These techniques can be used
to prevent future conflict from disrupting the work
environment. Early resolution of grievances is cost
effective and beneficial to both employees and management.
Employees also retain their right to pursue the formal
discrimination complaint process or grievance procedure
if ADR is not successful.
.05 The complaint processing guidelines issued by
the Equal Employment Opportunity Commission require
the Department to complete investigations of formal
complaints of discrimination within 180 calendar
days.
ADR will help meet timeliness objectives and promote
a conciliatory way of resolving complaints, which better
satisfies the concerns of employees and management.
SECTION 5. RESPONSIBILITIES.
.01 Employees shall:
a. make allegations of discrimination to NOAA's EEO
officer or EEO counselor within 45 calendar
days of
the alleged acts of discrimination;
b. raise issues under the negotiated or administrative
grievance process within the timeframes established
in individual contract bargaining agreements or the
administrative grievance procedure;
c. cooperate in good faith with the terms set forth
at the beginning of mediation;
d. agree, if the employee chooses mediation in lieu
of EEO counseling or grievance processing, to comply
with the terms of the pilot program;
e. inform the ADR Program Administrator if any special
accommodations, such as auxiliary aids, interpreters,
etc., are needed;
f. attend exit interviews with the EEO Officer or
designee after mediation is completed when discrimination
is alleged; and
g. maintain the confidentiality of ADR.
.02 Management shall:
a. cooperate in good faith with the terms set forth
at the beginning of mediation;
b. provide all documents and information related to
the case requested by the mediator during the ADR process;
c. seek information from other NOAA officials, human
resource representatives, or the Department's Office
of General Counsel (OGC), when necessary; and
d. maintain the confidentiality of ADR.
.03 The mediator
shall:
a. serve as a neutral third party trained in dispute
resolution;
b. assist parties in reaching mutually-agreed-upon
resolutions to disputes;
c. terminate mediation when it becomes apparent that
continued efforts to resolve the matter through ADR
will be unsuccessful;
d. advise disputants of the ADR process, rules of
confidentiality, and terms;
e. ensure that the parties understand that the mediator
has no authority to make decisions, nor is (s)he acting
as an advocate for any party;
f. maintain the confidentiality of ADR;
g. make necessary arrangements to accommodate persons
with disabilities during mediation sessions. The organization
in which the dispute arose is responsible for any associated
costs;
h. consult with appropriate officials, as needed,
for technical assistance to clarify issues or resolve
concerns;
i. prepare agreements for signature by the disputants.
The mediator shall forward all settlement agreements
to the servicing Human Resources Officer and copy the
NOAA ADR Program Administrator to determine if additional
review is necessary; and
j. issue Termination of Mediation notices to disputants
at the end of mediation. When applicable, also provide
the Union and the servicing Human Resources Office
a copy of the notice. The notice will inform employees
of their right to pursue a formal EEO complaint, negotiation/administrative
grievance on unresolved issues.
.04 The
NOAA ADR Program Administrator shall:
a. administer the ADR pilot for all workplace disputes
for which ADR was chosen. The NOAA ADR Administrator
will be located at the Western Administrative Support
Center (WASC);
b. notify Line Office/Staff Office (LO/SO) designees
when employees elect ADR;
c. identify the appropriate participants for mediation,
along with LO/SO designees, within 10 calendar
days;
d. arrange for mediators from a pool of trained NOAA
mediators and supplemental community resources;
e. assist the parties in resolving disputes if they
are designated to participate. All participants, management
or otherwise, designated to participate in mediation
must have the authority to resolve disputes;
f. ensure that settlement agreements which provide
for the payment of money or could, by the operation
of any clause require the payment of money, are submitted
to OGC for review before signature of the parties;
g. ensure that settlement agreements which arise from
or settle EEO complaints are reviewed by OGC before
the parties have signed; and
h. ensure that settlement agreements are given to
the servicing Human Resources Officer. Review will
be completed within 5 days; extensions may be granted
by the NOAA ADR Program Administrator where extenuating
circumstances exist.
.05 The ADR
Program Manager shall:
a. develop overall policy and program development,
direction, and evaluation; and
b. implement NOAA's ADR Pilot Program. The NOAA ADR
Program Manager will be located in the Headquarters
Human Resource Office, Silver Spring, MD.
SECTION 6. ADR PROCEDURES.
.01 Employees may request mediation for administrative
grievances, negotiated grievances, EEO complaints,
or other workplace disputes. Filing under the procedures,
which would otherwise be controlling, is not a mandatory
prerequisite to seeking mediation. If mediation is
requested, employees must select the appropriate procedure
listed below.
a. administrative
grievances: Mediation may be requested
at any time after an attempt at informal resolution
has been completed. When mediation is requested, the
appropriate management officials will advise their
servicing human resource representatives, who will
contact the ADR Program Administrator.
b. negotiated
grievances: Mediation should be requested
at the earliest possible opportunity provided for in
the Negotiated Grievance Procedure. When mediation
is requested, the appropriate management officials
will advise their servicing human resources advisors,
who will contact the ADR Program Administrator.
c. EEO
complaints: Employees may elect mediation any
time during counseling. If employees elect ADR, informal
counseling will stop, and the counselors will contact
the ADR Program Administrator.
d. informal workplace disputes: Employees are encouraged
to present workplace disputes for which there is no
other forum, and/or where they feel mediation may be
an effective approach for resolution, to management.
When mediation is requested, the appropriate management
officials will advise their servicing human resources
advisors, who will contact the ADR Program Administrator.
.02 The ADR Program Administrator will complete the
Intake Form (Attachment 2) when contacted by the servicing
human resources advisor.
.03 The ADR Program Administrator will contact the
parties to the dispute within 3 calendar days to determine
if mediation is appropriate and desirable to the parties.
a. If
ADR is appropriate, the ADR Program Administrator
will explain the mediation process and answer questions
from the parties. The ADR Program Administrator will
have the parties commit to their decision using the
Agreement to Mediate Form (Attachment 3).
b. If
ADR is not appropriate, as determined by the
ADR Program Administrator, the program manager will
inform each of the parties of the reason, and the matter
reverts back to the process from which the dispute
originated.
.04 When mediation is elected, the ADR Program Administrator
will assign a mediator and/or comediator and begin
making all logistical arrangements associated with
the mediation process.
.05 During the actual mediation, the mediator has
no authority to impose a resolution of the dispute.
The mediator will have the authority to meet separately
with either party. The ADR mediation will normally
be completed within 15 calendar days from the date
the mediator was notified of his/her selection.
.06 When mediation results in a resolution, the resolution
terms will be put in writing by the mediator and signed
by the two parties and the mediator (except for settlements
which provide for payment of money or which arise from
or settle EEO complaints). As set forth in Section
5.03i, the mediator, and/or the NOAA ADR Program Administrator,
will submit the written settlement agreement to the
servicing Human Resources Officer for review. The servicing
Human Resources Officer will review the agreement within
5 days of receipt. Extensions may be granted by the
NOAA ADR Program Administrator when extenuating circumstances
exist.
a. The Human Resources Officer will forward the settlement
agreement to the OGC or the appropriate Union official
where required. OGC will normally complete review on
unsigned agreements on the same day as the mediation.
OGC will review other agreements as requested within
2 days of receipt. The Human Resources Officer will
notify the ADR Program Administrator once final review
has occurred.
b. The ADR Program Administrator will notify the disputants
when all review has been completed.
.07 If mediation is unsuccessful, disputants will
return to the process from which they came. All filing
deadlines for grievances (administrative or negotiated)
shall be automatically extended for the duration of
the mediation process. The ADR Program Administrator
will inform the applicable management officials when
necessary.
.08 The ADR Program Administrator will follow up with
a Mediation Closeout Form (Attachment 4) to each disputant
no later than 120 days after completion of the mediation.
Participant/disputant identification will be confidential.
SECTION 7. EFFECT ON OTHER ISSUANCES.
None.
SIGNED,
Chief Financial Officer/Chief Administrative Officer
Offices of Primary Interest:
Human Resources Management Office (OFA4)
Civil Rights Staff (CR)
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ATTACHMENT 1
PILOT PROGRAM PROVISIONS
1. The rights of all parties accorded by statutes
will be fully
protected.
2. Participation in the ADR pilot program can only
be offered
to NOAA employees who would normally file grievances
under
the administrative or negotiated grievance system
or
discrimination complaint process.
3. The ADR process is designed to assist parties resolve
disputes in the workplace. Any issue can be brought
to
mediation unless specifically excluded by law, rule,
regulation, or collective bargaining agreement.
4. Participation in the ADR process is voluntary;
it must
be agreed to by all parties to the dispute before
mediation can be used.
5. ADR will be offered as a substitute at the lowest
possible stage to the dispute process.
6. Proceedings before mediators will be informal.
Rules
of evidence shall not apply.
7. The parties to a dispute may consult/be represented
by
a representative of their choice; however, discussion
in mediation shall be limited to the parties involved.
8. All parties, including representatives, if NOAA
employees, will be in a duty status during mediation.
9. Any materials presented to mediators shall be
returned to parties presenting the materials at the
termination of the mediation.
10. Mediation sessions will normally occur at a location
other than where the disputes arose. Selection of
the
sites will be based on the cost considerations and
the convenience of the parties.
11. The ADR Program Administrator will arrange for
mediators from the pool of trained NOAA mediators
and
supplemental community resources. Mediators will
generally not be assigned cases within their own
line organizations. The disputants will be provided
the name of the first mediators available in that
(or the nearest) geographical location. Mediators
may be rejected by disputants only if they have
stated a compelling reason, such as a conflict of
interest based on a personal relationship. If
parties provide compelling reasons for rejecting
mediators, the Program Administrator shall use the
same process with subsequent mediator names.
12. Parties entering into a mediation do so in good
faith
with the sincere expectation of resolving disputes.
Settlement agreements resulting from the ADR process
are binding and enforceable.
13. All settlement agreements will be put in writing
and
forwarded to Human Resources Officers by the ADR
Program Administrator. If the settlement Agreement
contains
provisions regarding monetary payments or personnel
actions
which will result in monetary payments, the settlement
agreement will also be forwarded to the Department's
Office
General Counsel for concurrence. Additionally, agreements
may be forwarded to the Office of General Counsel,
the NOAA
Civil Rights Staff, or to the appropriate Union when
such
review is necessary to ensure legal, regulatory or
contract
compliance. Review will be completed within 5 days;
extensions may be granted when extenuating circumstances
exist.
14. Disputes not resolved through ADR mediation shall
revert
back to the appropriate process from which they came.
15. Mediation costs, which consists of travel and
per diem costs
of the mediator(s), will be paid by the LO/SO where
complaints originated.
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ATTACHMENT 2
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
ALTERNATE DISPUTE RESOLUTION PROGRAM
INTAKE/CLOSEOUT FORM
MEDIATOR(S) ASSIGNED: #1
#2 (Last, First, Middle)
MEDIATION CASE NUMBER:
CASE INTAKE DATE:
DISPUTANT'S NAME: (Last, First, Middle)
POSITION TITLE:
PAY GRADE:
WORK TELEPHONE:
LINE/STAFF OFFICE:
SUBORDINATE ORGANIZATION:
DISPUTANT #2:
(Last, First, Middle)
POSITION TITLE:
PAY GRADE:
WORK TELEPHONE:
LINE/STAFF OFFICE:
SUBORDINATE ORGANIZATION:
TYPE OF COMPLAINT: ADMIN. GRIEVANCE
NEGOG. GRIEVANCE
EEO
OTHER
IF EEO, HAS A COUNSELOR BEEN CONTACTED? YES NO
IF SO, LIST THE NAME OF THE COUNSELOR:
DESCRIPTION OF BASES AND ISSUES TO BE MEDIATED:
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ATTACHMENT 3
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
ALTERNATE DISPUTE RESOLUTION PROGRAM
AGREEMENT TO MEDIATE FORM
I agree to enter into this mediation in good faith.
I will sincerely attempt to resolve this dispute,
agree to cooperate with the mediator assigned to
this case, and give serious consideration to all
suggestions made regarding development of a realistic
solution to the problem(s).
I understand that the mediator assigned to this case
will not be serving as an advocate, attorney, or judge.
His/her sole function is to act as a neutral third
party facilitator. Any agreements or decisions resulting
from this mediation session are entered into voluntarily
and by mutual acceptance of the parties.
I agree that mediation sessions are confidential settlement
negotiations. All offers, promises, conduct, and statements,
whether written or oral, made in the course of the
proceedings are inadmissible in any later hearing,
litigation, or arbitration of this dispute. However,
matters that are admissible in a court of law or other
administrative process continue to be admissible, even
though brought up in a mediation process.
I also understand that I may not subpoena or attempt
to require the mediator for this case to testify or
produce records or notes of a work product in any future
proceedings. No recordings or stenographic records
will be made of the mediation session.
Mediation Client Date
Mediation
Client Date
Mediator Date
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ATTACHMENT 4
MEDIATION CLOSEOUT FORM
CASE NUMBER:
CASE SETTLED? YES NO
NUMBER OF SESSIONS:
DATE MEDIATION ENDED:
SETTLEMENT AGREEMENT ATTACHED?
YES NO
DESCRIPTION OF ISSUES NOT RESOLVED IN MEDIATION:
MEDIATOR COMMENTS:
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