ADR in Workplace Disputes
Workplace disputes encompass disputes that occur in Army work environments, particularly those involving Army civilian employees, former employees, or applicants for employment. Workplace disputes are generally separated into two broad categories: Equal Employment Opportunity (EEO) complaints, and non-EEO workplace disputes, such as employee grievances, adverse actions and appeals, and union-management disputes. ADR techniques, especially collaborative techniques like mediation, conciliation and facilitation, have long been used to resolve both EEO and non-EEO disputes. These techniques are particularly effective in addressing the types of issues and problems that are common to workplace disputes: lack of communication, dysfunctional working relationships, and poor management. Because ADR processes do not require a finding or admission of legal liability, they are much more flexible than traditional litigation or other adjudicative procedures in fashioning solutions to these problems. Each category of workplace dispute is discussed in more detail below.
Complaints alleging violation of anti-discrimination laws in the federal workplace are under the jurisdiction of the Equal Employment Opportunity Commission, Office of Federal Operations. Beginning in 2000, the EEOC requires all federal agencies to make ADR available as an option for resolving EEO complaints at both the informal, “pre-complaint” and formal complaint stages. The EEOC has long recognized that the majority of EEO claims on its hearing dockets are not about unlawful discrimination, but involve less pernicious, but more widespread problems such as lack of communication, personality conflicts, and bad management practices. The EEO complaint system is not built to resolve these issues. ADR provides a mechanism for addressing these non-legal issues, while easing the pressure on crowded agency investigation schedules and EEOC hearing dockets.
ADR processes, primarily mediation and facilitation, are now a fixture of EEO complaint processing and disposition. ADR processes take up a significant percentage of Army informal and formal EEO cases, producing resolutions that could not be achieved through the traditional complaint process of investigation and adjudication. At the pre-complaint stage, ADR is one of two options offered to the aggrieved employee. At this stage, parties may also add non-EEO claims, i.e., claims that do not allege discrimination, to those slated for ADR, in order to resolve all contested issues at once, providing both employee and management a final, economical, and global solution. At the formal stage, ADR is always available, up to the final decision by the agency.
Whether used at the informal or formal stages (or both) of the EEO complaint process, collaborative ADR techniques like mediation and facilitation treat the dispute as a problem for employee and management to solve together, not a case to be won or lost. These processes open the door to better communication and a sense of teamwork, thereby lessening the tensions that foment conflict. For the employee, this produces a less stressful, more harmonious work environment. For management, it fosters a more productive workplace and redirects the focus where it belongs: the mission.
Non-EEO Workplace Disputes
There are two major classes of non-EEO workplace disputes: labor-management relations (LMR) and management-employee relations (MER). LMR disputes arise out of the collective bargaining relationship between management and unions representing bargaining unit employees. Thus, LMR disputes include grievances that are filed under a negotiated grievance procedure in a collective bargaining agreement (NGPs), allegations of unfair labor practices (ULPs), and disputes arising as part of the collective bargaining process (negotiability issues, impasses). These disputes are all subject to the Federal Service Labor-Management Relation Statute (FSLMRS), and are under the jurisdiction of the Federal Labor Relations Authority (FLRA). MER disputes involve the relationship between management and employees that do not directly implicate the collective bargaining process (regardless of whether the employee is part of a bargaining unit or not). Main examples are adverse personnel actions that can be appealed to the Merit Systems Protection Board (MSPB), administrative grievances filed by employees that are not represented by a union, and other workplace disputes that don’t fit any other category.
The FSLMRS requires that collective bargaining agreements provide for binding arbitration as the final step of the negotiated grievance procedure. Binding arbitration is a form of ADR, but because it can be invoked only by the union or management, not the employee, and places binding decision-making authority in the hands of an outside party, the arbitrator, it is not a favored ADR method. Otherwise, LMR and EMR disputes do not have ADR built in, the way EEO complaints do. Nevertheless, both the FLRA and the MSPB encourage voluntary efforts by the parties to resolve the dispute informally, and will accommodate such efforts consistent with their procedural rules. Beyond that, management and employees or their unions have a lot of leeway before a dispute finds its way to these tribunals to engage in ADR and other informal dispute resolution techniques. For example, management and union can form joint teams to review and propose solutions to ULP allegations or bargaining impasses; the collective bargaining agreement can be written to provide mediation as an employee-requested option at step one or 2 of the grievance procedure; or management and union or employees can agree to form joint peer review panels to evaluate and decide on grievances. All of these options, and others, give management and employees local control over disposition of disputes, without giving decision-making authority to outside third parties.