[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
JUSTICE DELAYED IS JUSTICE DENIED: A CASE FOR A FEDERAL EMPLOYEES
APPEALS COURT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE FEDERAL WORKFORCE
AND AGENCY ORGANIZATION
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 9, 2005
__________
Serial No. 109-115
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
25-705 PDF WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of
PATRICK T. McHENRY, North Carolina Columbia
CHARLES W. DENT, Pennsylvania ------
VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont
JEAN SCHMIDT, Ohio (Independent)
------ ------
Melissa Wojciak, Staff Director
David Marin, Deputy Staff Director/Communications Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on the Federal Workforce and Agency Organization
JON C. PORTER, Nevada, Chairman
JOHN L. MICA, Florida DANNY K. DAVIS, Illinois
TOM DAVIS, Virginia MAJOR R. OWENS, New York
DARRELL E. ISSA, California ELEANOR HOLMES NORTON, District of
KENNY MARCHANT, Texas Columbia
PATRICK T. McHENRY, North Carolina ELIJAH E. CUMMINGS, Maryland
------ ------ CHRIS VAN HOLLEN, Maryland
Ex Officio
HENRY A. WAXMAN, California
Ron Martinson, Staff Director
Chris Barkley, Professional Staff Member
Chad Christofferson, Legislative Assistant/Clerk
Mark Stephenson, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on November 9, 2005................................. 1
Statement of:
Bransford, William L., general counsel, Senior Executives
Association; Neil A.G. McPhie, chairman, U.S. Merit Systems
Protection Board; Dale Cabaniss, chairman, U.S. Federal
Labor Relations Authority; and Cari M. Dominguez, Chair,
U.S. Equal Employment Opportunity Commission............... 13
Bransford, William L..................................... 13
Cabaniss, Dale........................................... 30
Dominguez, Cari M........................................ 37
McPhie, Neil A.G......................................... 23
Letters, statements, etc., submitted for the record by:
Bransford, William L., general counsel, Senior Executives
Association, prepared statement of......................... 16
Cabaniss, Dale, chairman, U.S. Federal Labor Relations
Authority, prepared statement of........................... 33
Cummings, Hon. Elijah E., a Representative in Congress from
the State of Maryland, prepared statement of............... 76
Davis, Hon. Danny K., a Representative in Congress from the
State of Illinois:
Prepared statement of.................................... 8
Prepared statements of Ms. Kelley and Mr. Gage........... 45
Dominguez, Cari M., Chair, U.S. Equal Employment Opportunity
Commission, prepared statement of.......................... 39
McPhie, Neil A.G., chairman, U.S. Merit Systems Protection
Board, prepared statement of............................... 25
Porter, Hon. Jon C., a Representative in Congress from the
State of Nevada, prepared statement of..................... 4
JUSTICE DELAYED IS JUSTICE DENIED: A CASE FOR A FEDERAL EMPLOYEES
APPEALS COURT
----------
WEDNESDAY, NOVEMBER 9, 2005
House of Representatives,
Subcommittee on Federal Workforce and Agency
Organization,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:10 a.m., in
room 2247, Rayburn House Office Building, Hon. Jon C. Porter
(chairman of the subcommittee) presiding.
Present: Representatives Porter, Davis of Illinois, Norton,
and Cummings.
Staff present: Ronald Martinson, staff director; Chad
Bungard, deputy staff director; Patrick Jennings, OPM detailee;
Chad Christofferson, legislative assistant/clerk; Mark
Stephenson, minority professional staff Member; and Teresa
Coufal, minority assistant clerk.
Mr. Porter. Good morning, everyone. I would like to bring
the meeting to order.
We do have a quorum present. We would like to welcome you
all to ``Justice Delayed is Justice Denied: A Case for a
Federal Employees Appeals Court.'' I would like to thank
everyone for being here today, and I know that it took some
change in schedule, so for those that had those challenges, I
appreciate especially your ability to be here today.
Since the founding of this Nation, the bedrock principle of
judicial philosophy has been ``equal justice under the law.''
We hold this principle so dear that we have carved it into
stone in front of the Supreme Court. This principle should be
no less true of the Federal employee redress system as in our
courts.
But does the government deliver this result through its
employee appeals system? At present, jurisdiction for handling
Federal employee appeals is spread amongst the Merit Systems
Protection Board, the Equal Employment Opportunity Commission,
the Federal Labor Relations Authority, the U.S. Federal Courts
and the Office of Special Counsel. Critics have argued that
spreading appeals through so many agencies has inhibited the
process from being as fair as it could be. Although each agency
head here today deserves credit for implementing key reforms to
improve their respective agencies, the very structure of the
system may present challenges too great to overcome without
some fundamental reform.
Proposal for reform are what we are here to discuss. Today,
among others, we are going to be discussing a proposal to
consolidate all employee appeal and adjudication functions
under one roof, a one-stop shop for the appeals matters.
Advocates of this proposal claim that consolidating all these
agencies would decrease confusion for the employees, managers
and agencies; increase the efficiency of the process; and most
important, deliver a more fair result for all parties that are
involved.
Efficiency and fairness, though, are not always the words I
hear when the current appeals system is explained. Back in 1978
the GAO had this to say about the day-to-day functioning of an
average Federal workplace: ``Supervisors and managers instead
tend to use an informal [disciplinary] system of working
around, isolating, reassigning, sending to long-term training,
or even promoting unsatisfactory employees.''
Interestingly, GAO made this comment in the same year that
our current appeals system was created. It was believed at the
time that splintering all the adjudicatory agencies apart would
resolve the problems with the appeals system. Unfortunately, it
seems as if little has changed. Federal offices are hearing the
same complaints today as we heard back then. In 1996, for
example, GAO again testified regarding the problems of the
Federal employee redress system, and stated: ``Because of the
complexity of the system and the variety of redress mechanisms
it affords Federal employees, it is inefficient, expensive and
time-consuming.''
The latest Human Capital Survey conducted by OPM reflected
this sentiment yet again, revealing that employees are still
frustrated by a system that doesn't deal justly with poor
managers and poor employees. Under today's system, it is a
challenge to determine which agency has jurisdiction over cases
that involve a mix of discrimination, mismanagement or
retaliation claims. So many cases fall under two or more venues
that the time it takes to receive a decision is slowed to an
unacceptable pace for all parties. If we are unable to obtain
timely decisions for truly aggrieved employees, then justice
delayed is justice denied.
Likewise, jurisdictional confusion opens the door for a
problem known as ``venue shopping.'' Under this scenario an
employee with a complaint against his or her manager is
permitted to ``shop around'' and file a complaint with multiple
agencies. Feasibly, this person can simultaneously pursue a
complaint against a manager at the EEOC, MSPB and Federal
District Court. While the person in this example wouldn't be
held accountable if the claim is frivolous, to the accused it
can be a devastating experience. Because the system permits
this kind of behavior, according to an American Bar Association
publication, Federal employees are reportedly five times
likelier than their private sector counterparts to issue a
complaint against a manager.
The sad reality is that the existence of more claims does
not mean that we are better at uncovering discrimination and
abuse. To the contrary, the EEOC recently reported that of the
4,748 claims made by Federal employees in 2004 that were fully
adjudicated by EEOC, 96 percent were found to lack merit. Let
me repeat that statistic: not 10, 20, or even 50 percent, but
96 percent of cases fully adjudicated by the EEOC--at a heavy
cost to taxpayers, and a heavy cost to the employees that need
the help of the system. This demonstrates serious problems and
a staggering need for reform. Today's hearing will address this
and a host of other reform ideas.
In the end, it is essential that whatever system is in
place, we ensure that it is fair for all people involved,
employees and managers, and it is efficient in its use of our
taxpayer dollars. I look forward to hearing first from our
Senior Executive Association regarding its specific proposal
for reforming this system. I also look forward to hearing from
the other agencies that are here this morning and would be
impacted by such a reform.
But before I invite our witnesses to testify, let me
underscore that this hearing, first of all, is a look at the
issue. We are not expecting today to come up with a final
answer, but I do expect to come up with a final answer in the
not-too-distant future.
I hope that everyone can take away from this hearing a
point upon which we can all agree, and that is, for the sake of
the employees, for the sake of the managers, for the sake of
the agencies and the taxpayers, we can and must find a better
way to deal with how we handle this issue. I welcome all the
ideas from the panel here today, from my colleagues, from the
member agencies, employee organizations, and other interested
groups, to work together in a common partnership toward that
good. We are privileged to have some of the most knowledgeable
individuals in the field to be with us today.
The bottom line is there are folks that have been
discriminated against. There are folks that have problems with
managers, very legitimate problems. There are employees that
have problems with other employees. There are people that are
having problems that are not gaining access to the system
because it is tied up in our own bureaucracy. And as I tried to
state earlier in my comments, I applaud the folks that are here
today, for trying to do what you can with a system that we have
given you to work with.
But I would like for us to think out of the box. What can
we do to help that employee or that individual that needs help
the most, and to find a system that eliminates, as much as
possible, frivolous lawsuits so that there can be justice for
everyone involved.
[The prepared statement of Hon. Jon C. Porter follows:]
[GRAPHIC] [TIFF OMITTED] T5705.001
[GRAPHIC] [TIFF OMITTED] T5705.002
Mr. Porter. I would like to do some procedural matters, and
I ask at this time that we have unanimous consent that all
Members have 5 legislative days to submit written statements
and questions for the record, that answers to written questions
provided by the witnesses, also be included in the record.
Without objection, it is so ordered.
I ask unanimous consent that all exhibits, documents and
other materials referred to by Members and the witnesses may be
included in the hearing record, and all remarks by the Members
be permitted to be revised and to extend them.
Without objection, it is so ordered.
And it is also the practice of the subcommittee to
administer the oath to all witnesses, so if you could please
all stand, I would like to administer the oath.
[Witnesses sworn.]
Mr. Porter. Let the record reflect that the witnesses have
answered in the affirmative. Please be seated.
My able-bodied counsel is asking me to share with you that
you are lucky today because I am losing my voice. [Laughter.]
So today is a good day to be here. I promise not to give
you too hard of a time, but again, we appreciate you being
here. I would like to turn to my colleague, Mr. Davis, for any
opening comments.
Mr. Davis of Illinois. Thank you very much, Mr. Chairman,
and I don't think that with the kind of weather that you have
out in Nevada that you will ever lose your voice. You just kind
of slow it down when you get here.
But thank you very much, Mr. Chairman.
Today's hearing is on proposals to streamline procedures
for hearing Federal employees' allegations relating to
personnel practices. The Senior Executive Association has
presented the most detailed of such proposals. They propose
creating a Federal employee appeals court, which would combine
most adjudicatory functions currently preformed by the Office
of Personnel Management, the Merit Systems Protection Board,
the Equal Employment Opportunity Commission, the Federal Labor
Relations Authority, and the Office of Special Counsel.
Under this proposal, the decisions of this court would be
final and not subject to appeal, except in the case of
employment discrimination. It strikes me from a review of the
testimony that this proposal is driven in large part by
dissatisfaction with the length of time the current equal
employment opportunity process takes. There does not seem to be
much complaint with the process at the Merit Systems Protection
Board, or the Federal Labor Relations Authority, with the
exception of so-called ``mixed cases'' which involve both the
MSPB and the EEOC. If that is indeed the case, it may be that a
better approach would be to focus more narrowly on the current
process for resolving discrimination complaints in the Federal
workplace.
While I always keep an open mind on suggestions for
improving the operations of the Federal Government, I must say
that the proposal from the Senior Executives Association raises
some serious questions in my mind. We must tread very carefully
in this to ensure that due process rights of Federal employees
are not diminished in what is being presented as an
administrative reorganization. To that end I am disappointed a
bit that representatives of Federal employee unions were not
permitted to testify today. The National Treasury Employees
Union and the American Federation of Government Employees have
submitted written testimony, which I ask be made a part of the
record for this hearing.
It is also my understanding that employee representatives
will be permitted to testify in person at any future hearings
we may have on this subject.
Of course, as always, I look forward to this group of
expert witnesses. And, again, thank you, Mr. Chairman, for
giving us the opportunity to review this matter.
[The prepared statement of Hon. Danny K. Davis follows:]
[GRAPHIC] [TIFF OMITTED] T5705.003
Mr. Porter. Thank you, Mr. Davis.
Congresswoman, any opening comments?
Ms. Norton. Thank you very much, Mr. Chairman, and I thank
you for tackling this issue. I think everybody ought to be
forewarned that this is probably the most complicated issue in
the Federal service, and I know because I was there at the
birth. This I disclose as a matter of disclosure, because I was
Chair of the Equal Employment Opportunity Commission when both
reorganizations occurred, reorganization No. 1 and
reorganization No. 2. That is what this one was.
Reorganization No. 1, I am still very proud of. It was the
transfer of the civil rights functions in the Labor Department
to the EEOC, that is to say, the EPA and the Age Discrimination
and Employment Agent Act, as well as, of course, certain of the
Civil Service Commission functions.
Reorganization Plan No. 2 created the--what do we call it--
the FLRA and the OPM, etc. Recognizing that four new agencies
were being set up, the President's Reorganization Plan No. 1
called for the EEOC to be the chief coordinator. I must say
that we played that role when I was at the EEOC. It completely
atrophied after I left EEOC. I see no evidence that EEOC has
played a coordinating role involving all of the agencies
involved, even though it has reached out in many ways. It would
have taken very aggressive action because the coordination
would have meant you would coordinate among other agencies, the
Justice Department, every agency that had anything to do with
civil rights matters.
We are more than 25 years later. Everybody is frustrated
with the accumulated experience. I should stress that when you
are dealing with four agencies and they have overlapping
jurisdiction, and it is the first time that these agencies in
fact are operational, there was an attempt in 1978 to make sure
that everybody's jurisdiction remained intact. Actually, I am
surprised that, with more than 25 years later, in looking at
this again, because I believe that the experience does inform
us of--and long ago informed us of where some changes might
have been made.
I am going to listen very intently, because I believe in
government, I believe in the EEOC and the civil rights
functions, and therefore, I believe that those who believe in
them ought to be at the front of the line seeking to make
changes. But I think that there ought to be a fair warning to
those who want change, structural change, because this is the
committee that created Department of Homeland Security. I still
support that idea. I do not support the way the product has in
fact operated. It is still trying to get itself to look like a
Federal agency. I am a major cosponsor of a bill to take FEMA
out of the Department of Homeland Security. I think it needs to
be nimble, to not have its funds, for example, subject to being
stolen in the name of security when you get hurricanes every
year, and hopefully you don't get terrorist threats, anything
like that.
We have seen, with the structural reform that we have
already done, the virtual destruction of collective bargaining,
according to a Federal court which heard the matter. We have
seen other court suits now going forward as we deal with what
we did in DOD and DHS with pay.
So I am not sure about you, Mr. Chairman, but if there is
to be an appetite for structural reform, it seems to me that
the presumption has to be overcome that we are ready and we
have such a good proposal here tested and at least proven that
we should move ahead on it.
But I think that we ought to remember that September 11th
led to the changes that we have made, and frankly, I believe
the September 11th deserve a better response than the monster
we created in Department of Homeland Security. Again, I still
support the idea. I do not support what has been made of the
idea, which means that coming to a committee with an idea ought
to, if anything, arouse skepticism if there is no indication
that the idea would work or would work better than what is
there, and that is what it seems to me is the burden of those
who want to change.
The need for change, interestingly, is agreed across the
board, and that is not always the case when it comes to the
various groups that would be involved in a matter like this.
What moves me always is the word ``streamline,'' because, see,
those are magic words to me. I think that people get to hate
government when it gets to be complicated. For myself, I will
be remembered, if at all, not about substantive things I am
proud of at the EEOC like the sexual harassment guidelines, or
the affirmative action guidelines, but for eliminating the
EEOC's backlog by introducing streamlined processes that
focused on early settlement of individual cases at a time when
ADR was not even a word. So I come prepared to hear about
something that would streamline a process.
But, Mr. Chairman, we have just participated in creating a
super agency that has yet to show it can work, and the question
I think for us is we want to create a super court. Maybe so,
but the burden is on those who want to do it. I will want to
know, is the problem in the appeals? Is that where we have to
start? That is interesting. Often you have to start earlier
than that to get a problem. Is the problem venue shopping? I
couldn't be more in your corner. I can't go into court here in
the District of Columbia and the Federal Court at the same
time. That is a problem. But what does that have to do with
appeals? That has to do with, forum shopping has to do with
where you file in the first place.
So I am a little confused about focusing on appeals, except
that this notion of mixed cases comes into play. I don't even
want to go into what mixed cases is. The witnesses will
testify, but a very few cases have overlap between EEOC and
others. If you want to change the system because of those
cases, then we need to understand if it is worth creating a
whole super agency because of those cases, whether we ought to
concentrate on those cases or whether we want to ask ourselves
even deeper, more radical questions. What is the source of the
problem? Is the source of the problem when the case gets to
appeal? Fine. Then you are telling me that the cases are fine
as they start. I am glad to hear that because I was not aware
of that.
Very complicated issue. I think the way to go about it is
the way the chairman is going about it, analytically. But I
must say, Mr. Chairman, that unlike other matters before us, in
order to get a hold of this issue, if you really want to deal
with the super court notion, it does seem to me that you ought
to prepare yourself--and I am sure you have, Mr. Chairman--for
what amounts to a mental exercise. I mean if you want to
exercise it, you know, to exercise your mind is like doing a
crossword puzzle, first try to understand this and then try to
understand what the proponents want to do. Then perhaps we can
make a decision on whether this is the right way to go or
whether there are alternatives.
And I appreciate, Mr. Chairman, that you have looked at
this problem. It is not a huge problem, but for Federal workers
who spend a lot of time in the system, they deserve a lot
better.
Thank you very much.
Mr. Porter. Congresswoman, we are glad you are a part of
this committee because we are going to need your help on this
issue very, very much.
Mr. Cummings, any opening?
Mr. Cummings. Yes, just very briefly, Mr. Chairman. I want
to thank you for holding this critically important hearing to
evaluate the restructuring proposal for the Federal employee
appeals process.
For over two decades, Mr. Chairman, five distinct agencies
have admirably worked to ensure that Federal employees have an
appropriate forum to resolve their claims of unfair or unlawful
treatment that occurs in the workplace.
As it now stands, agency involvement of the Federal
employee appeals system includes: the Merit Systems Protection
Board, which hears individual appeals regarding agency adverse
actions; the Office of Personnel Management, OPM, which is
charged with administering the Federal personnel system; the
Office of Special Counsel, OSC, which investigates and
prosecutes specialized cases with a focus on protecting
whistleblower; the Equal Employment Opportunity Commission
[EEOC], enforces the right of equal employment opportunity by
hearing cases concerning discrimination; and finally, the
Federal Labor Relations Authority, which adjudicates
disagreements between agencies and unions.
Today's hearing presents us with the opportunity to discuss
a proposal by the Senior Executives Association to streamline
the Federal employee appeals system with the creation of a
Federal Employee Appeals Court. Specifically the proposal calls
for a single forum that would merge the appeals functions
currently adjudicated by MSPB, OPM, OSC, EEOC and FLRA, into
what would be considered a super agency. As the testimony of
William Bransford articulates, the purpose of this new entity
is to provide a simple and expeditious mechanism resulting in
protection of the merit system by resolving employee concerns
with relative speed, impartiality and in fairness, while
preserving all employee appeals rights.
In principle, I am sure that we can all agree that we best
honor our public servants by having a Federal employee appeals
system that provides a just, timely and thorough resolution of
employee grievances. Further, I am sure that we can all agree
that the current appeals system is not perfect, and could
benefit from some efforts to improve its effectiveness and
efficiency.
I am expressly troubled by the lack of timeliness in the
resolution of some mixed cases where there is a jurisdictional
overlap between EEOC and MSPB, and the ability to continuously
balance an appeal in such a case for additional review to
another adjudicative forum. However, I am not 100 percent
convinced that the SEA proposal for Federal Employee Appeals
Court is the best course of action. At this point it seems that
the five agencies at the center of the Federal employee appeals
system are able to sufficiently fulfill their unique missions.
The challenges that confront us seem largely concentrated
to the extraordinary delays and disarray associated with mixed
cases. With that said, the wholesale restructuring of the
arbitration system seems unwarranted.
John Gage of the AFL-CIO wisely stated in his testimony
that in particular, there is no need to create a system which
deprives Federal employees of their fundamental civil right to
challenge discriminatory employment decisions, while permitting
private sector and other public sector employees to file cases
in Federal courts, State courts and before State administrative
agencies as they can do now. Something seems awfully wrong with
that picture.
With that said, EEOC field restructuring plan that is
typified by its calls for reduction of offices and staff, seems
particularly unwise. No one wins if EEOC is incapable of
enforcing discrimination laws, and if it is inadequately
staffed to decrease backlogs and delays. Moreover, it seems
appropriate that in focusing on specific challenges before us,
that we look within the current system to determine how any
perceived or actual inefficiencies associated with mixed cases
can best be addressed.
With that, Mr. Chairman, I yield back and look forward to
the testimony.
Mr. Porter. Thank you, Mr. Cummings. I would like to
respond just to a couple things. For the employees, I will be
meeting with them, as I had asked, sometime before the end of
the year for their assistance, as we look at the pay-for-
performance proposals that has been before us, and by design my
intentions were to have this discussion--and I appreciate your
comment, Mr. Davis, as to why they are not here--but my goal is
to actually have a personal one-on-one meeting to talk about
the pay-for-performance proposal and to talk about some of
their challenges in having a proper hearing. So your point is
well taken, and I appreciate you bringing it up so I can make
it clear that is my intention, and look forward to their input.
I thought today we should hear from the management team and
some of the challenges that they have, but probably more
importantly, this hearing is really being driven by the
employees that are very frustrated and are looking for some
help and assistance. So we are looking for ideas. I do not have
an intention of creating a new bureaucracy. I believe that we
have systems in place to provide input and proper litigation
when necessary. But there may well be a more efficient approach
for the employee, whether it be a clearinghouse or a one-stop
beginning to point them to the right agency.
So I would hope as our discussions unfold, that I would not
send the message that I am hoping or even intending to create
additional bureaucracy or a super court system. But I do think
that with the talent that we have, with the management team and
the employees, we can find a system internally to make it
easier for those that have been wronged to find some relief as
quickly as possible.
So appreciate my colleagues and your input, and look
forward to future discussion.
So today, as in the past, know that our witnesses have 5
minutes each for their opening remarks, and after which the
members of the committee will have a chance to ask questions.
We only have one panel today, but I say today I am looking
forward to additional hearings on this issue as we move
forward. Today that panel will be comprised of Mr. William
Bransford, general counsel for the Senior Executives
Association; Neil McPhie, chairman of the Merit Systems
Protection Board; Mr. Dale Cabaniss, chairman of the Federal
Labor Relations Authority; and Cari Dominguez, Chair of the
Equal Employment Opportunity Commission. And again, if I can
say, Cari, I know it was a challenge and I appreciate you being
here today.
Mr. Bransford, thank you for appearing before the
committee. I look forward to your testimony. Please proceed.
STATEMENTS OF WILLIAM L. BRANSFORD, GENERAL COUNSEL, SENIOR
EXECUTIVES ASSOCIATION; NEIL A.G. McPHIE, CHAIRMAN, U.S. MERIT
SYSTEMS PROTECTION BOARD; DALE CABANISS, CHAIRMAN, U.S. FEDERAL
LABOR RELATIONS AUTHORITY; AND CARI M. DOMINGUEZ, CHAIR, U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
STATEMENT OF WILLIAM L. BRANSFORD
Mr. Bransford. Thank you. Good morning, Mr. Chairman, and
members of the subcommittee. I am William Bransford, general
counsel of the Senior Executives Association, the professional
association that represents the interests of career senior
civil servants. We appreciate the opportunity to testify about
an initiative we believe will correct the broken state of the
Federal employee appeals process and improve Civil Service
management. We look forward to presenting the perspective of
the career Federal executive.
SEA proposes that jurisdiction for the appeals and
complaints processes for Federal employees currently
investigated and adjudicated by the Merit Systems Protection
Board, the Federal Labor Relations Authority, labor
arbitration, the Office of Special Counsel, the Office of
Personnel Management, and the Federal sector EEO system, be
moved to and consolidated into one independent Federal Employee
Appeals Court.
The court we propose would be an Article I court similar to
the U.S. Tax Court, and would have complete jurisdiction over
Federal employee workplace issues, with appeals to the Circuit
Court of Appeals for the Federal circuit for EEO matters. Our
proposal ensures that all substantive appeal and complaint
rights, including jury trials and compensatory damages for EEO
cases would be preserved, and the new court would include
investigative and dispute resolution functions that would
employ all Federal employees whose jobs might be affected by
the consolidation.
The current system serves as a barrier to Federal managers
effectively managing workplace misconduct and poor performance.
The simple threat of an EEO complaint by an unhappy
subordinate, which can hang over a manager for 3, 4, 5 or even
6 years, gives pause to even the best manager before deciding
to take action against a problem employee.
Consider the EEOC's 2004 report, 601 days on average for
agencies to issue a merit decision in an EEO complaint when no
judge is involved. Even including cases withdrawn, settled or
dismissed, average process time is 469 days. A case that goes
to an EEO administrative judge lengthens these time limits
considerably. This extensive process found only 321 cases of
discrimination out of over 23,000 complaints closed last year,
a rate of 1.3 percent. Even including cases that settle, nearly
80 percent of EEO complaints still have no merit. Of course,
even one instance of discrimination is too many. We believe
this new court would provide a reinvigorated system that can
screen out frivolous complaints early and more effectively deal
with discrimination.
One reason the current EEO system is so clogged is that it
investigates every complaint, no matter how obviously specious
of unconnected to actual discrimination. This is because the
agencies investigate themselves, so every complaint is
thoroughly reviewed to avoid accusations of conflict of
interest. An independent court could take these same complaints
and dismiss those with no merit, while putting resources into
investigating and adjudicating viable cases. The sheer waste is
reason enough to seriously examine reform of the current
system.
And that is just EEO complaints. Consider labor arbitration
for employees in bargaining units on adverse actions that can
also be appealed to the Merit Systems Protection Board, and
there is the Office of Special Counsel for Whistleblower
Reprisal, and on and on.
The multitude of possibilities, the complexity of the
system, and the delay, hinder good management. First level
supervisors are reluctant to act, and higher level management
is unsure about the level of support to give the front line
manger. There is also the risk of reprisal allegations if a
management decision needs to be made affecting an employee who
has filed an EEO complaint. Simpler, more effective reform will
help managers feel more comfortable to deal with problem
employees in good faith, and will also help more quickly expose
poor managers. Equally important, those with legitimate
complaints and grievances will see them attended to more
expeditiously.
In the meantime, and until this court is operational,
Congress should provide for statutory assurances that make the
manager more a part of the EEO process. We propose that
agencies be required to advise management of the filing of a
complaint, to provide managers with relevant documents and the
right to representation during meetings and investigations, to
be consulted before a case is settled, and to be reconsidered
for lost awards, lowered performance ratings and other negative
personnel actions that occurred because of an EEO complaint if
the EEO complaint is eventually found to be without merit.
As the Merit Systems Protection Board rapidly processes
cases and focuses on the statutory standard of efficiency of
the service and the merit system, we believe its practices and
culture would provide an excellent framework for the new court.
We hope that today's hearing will spark a debate about
reform of the Federal employee appeals process, particularly
the lengthy and bulky processing of EEO complaints. Tomorrow's
Federal managers will face increased expectations and
accountability as reform of the Federal Civil Service's
performance management system takes place. These managers
deserve a new appeals system that adequately protects employees
and the merit system, but does so in an expeditious and
understandable manner.
I have heard comments this morning attacking our proposal.
I hope we can focus more on the problem the Senior Executives
Association, in recognition of a serious problem, has put forth
a very serious proposal that we believe will correct the
matter, but more than that, we hope the debate will lead to
some reform that will make a meaningful difference.
Thank you very much.
[The prepared statement of Mr. Bransford follows:]
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Mr. Porter. Thank you very much, appreciate your testimony.
Mr. McPhie.
STATEMENT OF NEIL A. McPHIE
Mr. McPhie. Thank you. Good morning, Chairman Porter,
Ranking Member Davis, and members of the committee. My name is
Neil McPhie. I am the chairman of the U.S. Merit Systems
Protection Board. Thank you for the opportunity to appear
before you today to testify about the proposal to establish a
Federal Employee Appeals Court.
My comments today summarize my written statement, and I
respectfully ask that my written statement be included in the
record.
The Senior Executives Association advances two main reasons
for consolidating the existing complaint, appeals and grievance
process into a single system administered by a court. The first
reason given is that the current system is complex and
confusing, in that personnel actions can be challenged before
multiple bodies that apply different law.
The second reason given is that under the current system it
takes too long to resolve challenges to personnel actions. I
believe the second reason, delayed resolution of disputes, is
the greater concern. I submit, however, that the proposal ought
to be subjected to fuller study.
As to the first reason to establishing a court, it appears
that managers who view the current system as too complex and
confusing are primarily responding to the multiplicities of our
laws and regulations that govern the Federal employment
relationship, and not the fact that there are multiple avenues
available for challenging personnel actions.
Without providing an exhaustive list I would point out that
an employee could claim that a single personnel action was
improper for any or all of the following reasons: it was not
taken for the efficiency of the service; it was discriminatory;
it was taken in retaliation for the employee's whistleblowing;
it violated the corrective bargaining agreement; or it
constituted an unfair labor practice.
Under the current system each of the claims I have just
described could be considered by a different body, or in some
instances by an arbitrator. Nevertheless, all of the claims
could still be made if those bodies were combined into a single
entity. My point is that insofar as day-to-day management of
the Federal work force is concerned, complexity may be an
outgrowth of the numerous detailed rights that policymakers
have conferred on civil servants. In general the perceived
complexity of the current system does not seem to be directly
caused by the availability of multiple avenues for review of
personnel action.
In this connection I note that the current system has
safeguards intended to prevent inconsistent decisions. For
example, by statute an employee who believes that a personnel
action was taken against him because of his whistleblowing must
make a binding election among three possible review mechanisms:
a grievance, a direct appeal to the MSPB, or a complaint for
corrective action before the Office of Special Counsel. A
choice of any one of these avenues forecloses the other two.
Without going into further examples, I would simply observe
that the current system is not designed to reach inconsistent
decisions.
As to the second main concern, lengthy delays, I note that
a typical non-mixed case--that is one that does not go to
EEOC--moves through the administrative system fairly quickly.
In fiscal year 2005 the MSPB's administrative judges issued
decisions in an average of 92 days. In over 50 percent of the
cases, the administrative judges' decisions became the final
decision. Based on fiscal year 2005 figures, on average it
takes no more than 122 days from the date of the personnel
action to the AJ's final decision. Either party may seek review
of the administrative judge's decision before the full MSPB,
and the Board members are striving to decide cases on average
within 120 days.
In fiscal year 2005 the Board reduced its pending
headquarters inventory by 38 percent, from 955 cases to 593. A
smaller inventory obviously means that newly filed cases will
be decided more quickly. The MSPB is firmly committed to
reducing its processing time as new Department of Homeland
Security and Department of Defense appeals systems go into
effect, although as I have stated in the past before you all,
that MSPB will treat cases from all agencies equally.
Assuming that the full MSPB can decide cases within an
average of 120 days, in a typical case the total time from the
date that personnel action is taken until a final judicially
reviewable administrative action is rendered should be about
277 days, roughly 9 months.
The mixed case process where there is an appeal from an
action that is both within the Board's jurisdiction and that
the employee believes was discriminatory, presents a
significant timeliness challenge. If the employee chooses to
pursue every step in the process within regulatory timeframes,
then approximately 695 days, or nearly 2 years, will have
passed before administrative review is complete. The proposal
from the Senior Executives Association would significantly
modify the procedures by which discrimination claims are
decided.
It comes as no surprise, when I would tell you that it is
my hope that you as policymakers would exercise great caution
when studying ways to modify procedures for certain
discrimination claims.
In conclusion, it is possible that streamlining benefits
may be achieved by consolidating current dispute resolution
bodies into a single Federal Appeals Court. I would suggest,
however, that the efficiencies sought by the Senior Executives
Association could possibly be gained by reforming the current
system. An appropriate course, in my view, would be to form a
task force of the stakeholders to study possible changes and
work to resolve inefficiencies in the current system.
Naturally, the MSPB will be pleased to assist any such task
force with its work.
Again, thank you very much for permitting me to come and
make these remarks.
[The prepared statement of Mr. McPhie follows:]
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Mr. Porter. Thank you, Mr. McPhie.
Ms. Cabaniss.
STATEMENT OF DALE CABANISS
Ms. Cabaniss. Chairman Porter, Ranking Member Davis, and
members of the subcommittee, my name is Dale Cabaniss. I have
the honor of serving as the chairman of the Federal Labor
Relations Authority. Thank you for the opportunity to appear
before you this morning as you examine the idea of creating a
one-stop shop for the resolution of Federal employee
complaints, appeals and grievances. I appreciate your
continuing interest in this topic and your efforts to evaluate
ways to improve government operations, while retaining
important due process rights for Federal employees.
There are a lot of comments that have been raised that have
merit. I agree with Chairman McPhie that it is important to
have the stakeholders involved, and I would encourage that
committee to further study the idea of a Federal Employee
Appeals Court.
As you know, in 1978 the Civil Service Reform Act was
enacted to replace a then-existing patchwork system of Federal
employment governance. Chapter 71 of the statute established
the Federal Labor Relations Authority by consolidating three
previously independent entities: the Federal Service's Impasses
Panel, the Office of the General Counsel, and the Federal Labor
Relations Authority, decisional component which was preceded by
the Federal Labor Relations Council. Under our statute, our
General Counsel, our Administrative Law Judges, the Authority
and the Federal Service's Impasses Panel, retain their
important statutory independence of their prosecutorial and
adjudicative responsibilities, but we co-exist in terms of
managing our administrative overhead.
From this perspective, the FLRA does represent a one-stop
shop as a single point of entry for certain cases falling
within our jurisdiction. During my time at the FLRA it has been
my experience that each of these previously separate components
has been able to successfully retain its statutory independence
without the need for excessive, duplicative administrative
budget, human resource or technology personnel.
As you are aware, the Federal Labor Relations Authority
does not initiate cases. All proceedings before the FLRA
originate from filings arising through the affirmative actions
of Federal employees, Federal agencies, or Federal labor
organizations. For example, an employee who believes he or she
has suffered an alleged unfair labor practice may petition the
FLRA General Counsel. Our General Counsel, through one of the
seven regional offices nationwide, will investigate this claim.
If the General Counsel ultimately issues a complaint, the case
moves to the Office of Administrative Law Judges where it will
either settle or be scheduled for a hearing. If a case moves to
a hearing, it will either settle or the assigned judge will
issue a decision. Upon issuance of an ALJ decision, the
nonprevailing party may then appeal to the FLRA Authority
decisional component for adjudication. The Authority will issue
a decision, after which judicial review may be had in either
the U.S. Court of Appeals for the circuit in which the
aggrieved party resides, or the U.S. Court of Appeals for the
District of Columbia.
Examining this process more closely, you will see that a
ULP case can potentially route through three of our agency's
four major case processing components, the OGC, the Office of
the Administrative Law Judges, and the Authority. And each
component engages in case processing activities that vary in
complexity, time and procedures.
To address potentially lengthy case processing and to
improve the agency's overall responsiveness to its customers,
during the past year we began collecting baseline performance
and activity costing information, and revising our internal
performance standards. Consistent with all executive
departments and many other small agencies, we will soon
implement agency-wide processing goals that are aligned
directly with our executives' and managers' performance
appraisals. Thus, regardless of which component a case is
currently in, we will remain cognizant that there is a
customer, whether agency or union, waiting not only for a fair
decision but a timely result as well.
One of the issues that has been identified with respect to
the employees appeals process is the potential overlap of
jurisdiction and the opportunity to raise issues in alternative
forums. This is not a significant issue at the FLRA. For
example, Section 7116 of our statute provides that issues which
can properly be raised under an appeals procedure may not be
raised as an unfair labor practice. This includes employment
matters such as hiring, firing and the failure to promote.
These matters are generally subjected to the jurisdiction of
the MSPB.
However, there are some instances in which different
independent agencies could issue rulings involving the same
employee complainant. For example, if a group of employees are
terminated from Federal service, they may appeal that
termination to the MSPB. Depending on the factual situation, at
the same time, the union representing that bargaining unit may
file an unfair labor practice charge with the FLRA alleging the
agency failed to follow the collective bargaining agreement in
effecting the employment action. The two cases are related, but
because they raise different legal issues, there is the
possibility of different rulings in different forums.
In another example, where a factual situation involves
multiple related actions by an agency, it would be possible to
litigate the various parts separately if different legal issues
can be identified. For example, a bargaining unit employee
could be terminated from Federal service for insubordination
resulting from his or her refusal to accept an overtime
assignment. The bargaining unit employee could appeal the
termination from Federal service to the MSPB, while also
alleging an EEO violation for how he or she was treated during
the investigation of the incident. At the same time, the union
representing this particular bargaining unit could file an
unfair labor practice charge alleging the employee was ordered
to take the overtime assignment in reprisal for the employee's
union activity. Because each piece of litigation raises a
separate legal issue, each case will operate independently from
each other. However, I should point out this is a rare
occurrence. This is not something that you would see very
often.
In conclusion, while there is presently not a great deal of
overlap in jurisdictions between the FLRA and the other
agencies represented here today, I am sure we would all agree
there is room for continued improvement administratively and
operationally.
Thank you again for the opportunity to appear this morning.
I would be pleased to respond to any questions you may have or
provide any additional information you seek.
[The prepared statement of Ms. Cabaniss follows:]
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Mr. Porter. Thank you very much.
Ms. Dominguez, appreciate you being here.
STATEMENT OF CARI DOMINGUEZ
Ms. Dominguez. Mr. Chairman, Congressman Davis, members of
the subcommittee, thank you very much for inviting me to
testify today on this very important topic. I am Cari
Dominguez, Chair of the Equal Employment Opportunity
Commission. First and foremost I want to applaud and commend
this committee for allowing us this opportunity to look into
ways for improving the Federal employee appeals and complaint
process.
Designing a process that efficiently and effectively
resolves workplace disputes is of paramount importance to the
Federal Government and to taxpayers. The EEOC plays a very
significant role in that process. While this hearing is focused
on the multiple complaint and appeal processes that are
available to Federal workers, our view is through the lens of
the EEO process. That is the process that we deal with on a
daily basis.
Many of the concerns that have been expressed and raised by
the Senior Executives Association are concerns that we share.
We recognize that reform of the Federal EEO system is
warranted. Indeed, the Federal EEO process has been perennially
criticized as too slow, too cumbersome, too expensive, and
subject to perceived or real conflicts of interest.
Many of the critics of the system consider the current
arrangement under which the same agency accused of
discrimination investigating itself has a conflict of interest.
The EEO process is also sometimes used to address workplace
disputes that belong in another forum. Clearly, these issues
raise the question as to whether agencies, employees and
taxpayers are being well served.
In my view, what is needed is a better model and a more
flexible system. It is critical that sufficient resources be
devoted to those cases where it is likely that discrimination
has occurred.
EEOC's private sector charge process serves to inform us.
As you know, we were established as part of the Civil Rights
Act and we have been conducting investigations filed by private
sector employees in the past 40 years. Our private sector
complaint processing system was at one point overburdened and
very time intensive. At one point we had over 110,000 charges
backlogged, and the average processing time to complete a
charge was well over a year. Without any significant change, we
estimated that it would take more than 16 months to even begin
an investigation.
In the mid 1990's the Commission adopted a system known as
Priority Charge Handling Procedures, using a similar model to
the triage system that is applied in the health care field,
whereby the most compelling cases are handled first.
We have found that this system has been far more efficient,
responsive and fair, not to mention economical, than the
previous approach, where all charges, regardless of merit, were
afforded the same time and attention. The average processing
time for charges filed with EEOC in the private sector is now
less than half of what it was 10 years ago, and has averaged
165 days in the last 3 years.
I believe that we need to draw from lessons learned in the
Commission's private sector model to design a Federal sector
system that is truly the best.
One of the concerns frequently voiced is that the various
processes for employee complaints and appeals are redundant and
overlapping. There is a type of case that has been mentioned,
where EEOC reviews decisions of the MSPB to ensure proper
application of the employment discrimination laws. These are
known as the mixed cases, and are frequently cited by those who
raise the redundancy issue. Yet over the years, review of the
MSPB decisions has constituted a very small number of appellate
cases, in fact, only 1.1 percent of our 2005 receipts.
Likewise, EEOC may review certain grievance decisions from
the Federal Labor Relations Authority on issues of
discrimination, but again, those cases make up very little of
EEOC's appellate docket, two-tenths of appellate receipts in
2005.
We believe that reform of the various complaint and appeal
processes to include the Federal EEO process can be a very
positive step. Although the concept of a one-stop process is
worth exploring, we believe that it requires further study. We
question whether the creation of an Article I Court, without
any changes to the administrative agency process, would
actually yield the results intended. The EEO workload alone for
a new court could be significant. In fiscal year 2004, more
than 19,000 EEO complaints were filed with agencies. By
contrast, over the last 5 years, Federal employees have filed
fewer than 1,300 lawsuits raising discrimination issues in
Federal District Courts. This amounts to about a tenth of 1
percent.
Further, the proposal under consideration would place all
workplace disputes into a single judicial forum, one that has
potential to become more legalistic, more expensive, more
intimidating, and likely more time consuming than the existing
processes. It may well have the effect of discouraging
employees from seeking redress for any discrimination
experienced, and that should not be the goal or result of any
reform proposal.
Ensuring a workplace free of discrimination is vital to our
Nation's interest. Much progress has been made, but much more
remains to be done. Improving on an approach that allows for
the proficient resolution of workplace disputes is an objective
that we all share and work diligently to meet. It is important
that we and this subcommittee continue to look for ways that we
can design a system that works better. We believe that reform,
informed by what works well in the current administrative
framework, is a good starting point, and provides the best
platform for those efforts.
Thank you very much for the opportunity to comment, and I
will be happy to answer questions.
[The prepared statement of Ms. Dominguez follows:]
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Mr. Porter. Thank you very much.
Before we get into questions, I would like to heed the
request of Mr. Davis that we include statements prepared by the
National Treasury Employees Union and the American Federation
of Government Employees to be submitted as part of the record.
So without objection, so ordered.
Thank you very much.
[The information referred to follows:]
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Mr. Porter. I have a few questions for the EEOC. Where do
you think the delays are occurring in the Federal sector, EEO
processing, and what suggestions do you have to make it more
fair and more efficient and effective?
Ms. Dominguez. Thank you, Mr. Chairman. Since joining the
Commission, we have looked at this issue very carefully and
deliberately, and I am convinced that the greatest delay occurs
during the investigative process conducted by Federal agencies.
There is a reluctance to look at the merits of the case and
then apply some judgment, primarily because of fear that at
some level in the process the case will be reversed. So I think
there is a reluctance by Federal agencies to conduct anything
less than a thorough and full investigation, even when the
allegations do not warrant such a lengthy review.
Mr. Porter. You mentioned that the system, 96 percent of
the cases are fully adjudicated, and of course, at heavy costs
to taxpayers because of purely the manpower and the time. And
96 percent are of course deemed to be without merit. Is that
indicative that the system is working because 96 percent are
without merit? Does that mean the system is working?
Ms. Dominguez. We believe that what it tells us is that 96
percent of the issues in which we found no discriminatory
findings may relate to other management issues or other kinds
of issues that cannot be substantiated through our
discrimination analysis. We have put a lot of other things in
place. One of the things we have encouraged agencies to do--and
I have been personally meeting with agency heads--has been to
engage more in the precomplaint counseling process. This is the
time right before someone files a complaint, to do more
mediation, to do more counseling, to do more outreach and
training. We believe those are the tools that Federal agencies
should continue to strengthen. We still have a very high
conversion rate between the precomplaint counseling stage and
the actual filing of a complaint. Government-wide it is about a
45 percent conversion rate. We think we can drive that down and
keep complaints from being filed if each agency continues to
engage much more aggressively in dispute resolution
administrative processes.
However, I do think that once a formal complaint is filed,
it is the old adage of, you know, there is a perception that
the fox is guarding the hen house, and I believe that we need
to remove that responsibility. It would be better for the
agency. It would engender greater trust, and I think we could
see dramatic improvement in the efficiency of the process.
Mr. Porter. Thank you.
I would like to remind my colleagues, if we can keep our
questions to approximately 5 minutes, I am happy to do
additional rounds if necessary. Mr. Davis, any questions?
Mr. Davis of Illinois. Thank you, Mr. Chairman.
Mr. McPhie, both you and Ms. Dominguez, what is it about
the mixed cases that cause so much delay, and which makes it
more difficult to process those in a more timely manner?
Mr. McPhie. You want me to go first?
Mr. Davis of Illinois. Yes.
Mr. McPhie. The way the regulations are set up, a person
has a right, if they are dissatisfied with an MSPB decision on
discrimination, to seek review before the EEOC. And we get our
agency decision very, very quickly. And it leaves our hands, it
is at the EEOC. We have no control over the process, and then
it would come back to us at some point in time in the distant
future. It goes back and forth, and I have always wondered why,
unlike other provisions described here this morning, people
couldn't elect a remedy. Once they elect, they have to stay
with that process. If they elected the Board remedy, for
example, the case would be finished.
Mr. Davis of Illinois. So the joint action is not so much
the problem as the regs governing EEOC becomes more of a
problem than any difficulty of the two agencies concurrently
working together?
Mr. McPhie. Oh, yes. EEOC is the expert, there is no
question about that. And the Board, over 25 years, has
developed a history that is quite good. EEOC has said that. But
the process, I mean the regulation gives the person an
unfettered right, if they don't like what they get from the
Board, to take it over to the EEOC. Unless the regulations are
changed, then you have to respect that right.
Ms. Dominguez. I fully agree with that. I believe that
there is access to review on the discrimination aspects of the
claim by the Commission, and while as I mentioned, it makes up
about 1 percent of all of the appellate reviews, there is that
component.
Mr. Davis of Illinois. Thank you very much.
Mr. Bransford, I would hope that certainly my comments were
not part of the notion of opposition to or attacking the
proposal. I think I have a very open mind about this, and I am
trying to arrive at what will get the best protection as
expeditiously as possible, certainly for those employees who
feel that somehow or another, they are just not getting a fair
shake. I mean I get people who call me and who come by my
office, and there are times when I think we are going to have
to call a psychiatrist--[laughter]--or somebody to keep them
from going berserk, in terms of what they express about the
process and whether or not they are going to ever get fairness.
You indicated that your most serious concern is the length of
time that it takes to resolve discrimination complaints and
mixed cases. We have heard some information relative to the
mixed cases. What is there about the discrimination complaints
that makes it so difficult?
Mr. Bransford. There are, Congressman Davis, two things
about them I think from a manager's perspective. First, the
manager is not a part of the process. The EEO process in the
agency works separately and it is supposed to do that. And I
think to a certain extent when the agency is investigating
itself, it should be free from management influence, but the
manager doesn't feel like they are part of the process.
And second, it goes on for so long, years. And the manager
has to continue to work on a day-to-day basis with that
employee who is unhappy with the manager, and very often that
employee is a problem employee, is a poor performer or is
engaging in workplace misconduct. The employee has filed an EEO
complaint. The manager must then manage and make tough
decisions and face a reprisal complaint because of an EEO
complaint that has no end, all of this in a process where the
manager is not a part. I think it creates difficulty for the
manager.
And then from the employee's perspective, because I have
also been involved in these cases from the employee's
perspective, when a case takes so long to resolve and there is
a finding of discrimination, it is very difficult to give
meaningful justice to an employee who has been wronged after 3
or 4 or 5 years.
Mr. Davis of Illinois. Thank you very much, Mr. Chairman.
Mr. Porter. Congresswoman, do you have any questions at
this point?
Ms. Norton. Thank you very much, Mr. Chairman.
I want to say to you, Mr. Bransford, that I am very
sympathetic with what you go through. I mean I had to live with
this system. I had to live with a system where people found
multiple charges at a time, frankly, when we were trying to
bring the agency, which had been a scandal, back to life. And
so I hope you won't take our questions as meaning we don't see
the problem. I lived with it. It is a terrible problem, about
having someone who just lingers, and understands the system
well enough to find ways to linger.
Could I ask you, did you, in designing this idea, speak
with or consult with the unions who are apparently just,
perhaps even more frustrated with the present system as you
are?
Mr. Bransford. I have not had discussions with unions about
this specific proposal. I have had numerous discussions with
union officials over the years about the basic problem. This
proposal, I would point out, was first designed about 10 years
ago, and studied at that point. We have since revised it and
developed it and have continued to push for it, and I think
within the last 3 years, particularly in what has happened with
Department of Homeland Security and the National Security
Personnel System. I think the debate becomes even more
necessary because the focus has been on reforming MSPB appeal
rights, and I think the problem is actually broader.
Ms. Norton. The reason I asked the question----
Mr. Bransford. But I have not consulted with them on this
proposal.
Ms. Norton. The reason I ask the question, Mr. Bransford,
is that where management and labor have the same basic
criticism, one would think that is an opportunity for them to
take at least a go-round at seeing if they could together come
up with an answer even if they had basic differences. Someone--
I don't know if it was you, Mr. Chairman, or someone in their
testimony--indicated that it would be advisable for there to be
a task force of the stakeholders, as say, kind of a beginning
point.
Mr. Bransford, would you disagree with that as one way to
proceed?
Mr. Bransford. I think that is a very good way to proceed,
and I think that task force of stakeholders should include the
labor unions.
Mr. Porter. Excuse me, Congresswoman, I am not sure who
said it, but we will give you credit if you like. It is a good
idea. [Laughter.]
Ms. Norton. I mean it may have been in someone's testimony,
Mr. Chairman. I got it from--oh, it was Mr. McPhie. And
particularly since very often management and labor don't agree
that there is even a problem, boy, that is a good head start it
seems to me.
I was a little puzzled by the very informative sheet that
the SEA put out on the Federal Employee Court of Appeals. In
talking about the need for reform, Mr. Bransford, you have a
section here about the number of days it takes for various
parts of the system to proceed, and you start with the 601 days
for the agencies to decide a discrimination case, and you say,
``when no judge is involved.''
Mr. Bransford. That is right.
Ms. Norton. So that means we haven't even gotten to the
appeal process yet. Then you go on, 280 days for agencies just
to complete investigations. Here, we are not to appeal yet.
Mr. Bransford. That is right.
Ms. Norton. We are still on the ground.
Mr. Bransford. We are still in the agency.
Ms. Norton. And even in the agency, in a real sense we
really may be hopping--I mean there is something called bottom-
up and top-down. Then you go on that the EEOC judge takes 463
days. Well, if you combine the number of days before you even
get out of the agency, you have about twice as many days as it
takes for the EEOC judge to be involved in the case. And of
course, no appeals court touches that, I take it?
Mr. Bransford. Well, it has not gone to Federal Court yet.
At that point it can go--then after that, it can go to Federal
Court.
Ms. Norton. After that. So we are still left with the
employee down there not knowing whether or not there is any
cognizable claim even. I am wondering whether or not we want to
nip the problem in the bud, as they say, because I go on again
with your sheet, because you complain, I think quite rightly,
that the process, this process, this process that doesn't get
to appeal--so few cases get to appeal. You say the process
rarely finds discrimination, meaning that managers are often
unfairly labeled as discriminating officials.
And then you go on to cite how few cases find
discrimination. One of the reasons for that, Mr. Chairman, is
that this is a free system. These are well-educated employees,
and whatever message you send, they are going to receive. And
by the way, if you send a message that there is an appeals
court, a brand new nice appeals court, don't underestimate
Federal employees, please. I am sure that will be just where
everybody tries to get. I just want you to keep that in mind.
But again, here we have very few cases.
Now, Ms. Dominguez testified about ways that the EEOC is
trying to reach out to help these agencies get through that
process. I would like to know whether or not you think that
given the resources that go into this system, even before any
appeals judge get a hold of it, whether it wouldn't be wise for
the committee to concentrate on carrying out the Federal
mandate that is now law, that every agency has to have a viable
ADR process, because I think that if anything, this means that
whatever version of ADR we are using, is failing, and you,
therefore, after it has failed, are trying to get hold of the
few cases that make it to the appeals system with good reason,
but leaving the process as it is where all of the delay really
is.
So I am asking you whether or not your employee, you who
are the manager, wouldn't be better off if there were a way to
settle this case or to negotiate the case early on, and then if
it can't be negotiated, and the employee wants to go on up,
that is another problem. But isn't our time better put into--
given what appeals are going to produce, isn't it better put
into trying to get rid of frivolous cases, cases that might be
easily settled, because you say right here, 20 percent of the
cases settle but many result in small significant benefit for
the complainant, meaning that the complainant is willing to
take a small benefit. So I am asking you aren't we kind of
putting the cart before the horse and wouldn't it be better for
the committee to focus on trying to get these cases resolved
early so that whatever appeals process we decide upon has very
few cases in the first place.
Mr. Bransford. The short answer is, yes, I believe that
there should be more effort made to alternative dispute
resolution and mediation. However, I don't think that would
solve the problem.
The Senior Executives Association supports requiring
managers to actually participate in alternative dispute
resolution. The EEO does--and it is one of the significant
improvements of the last 4 or 5 years--require ADR programs in
agency EEO systems, which I believe has actually resulted in a
reduction of many complaints that could have gone forward. But
the problem is----
Ms. Norton. That is one agency. We are dealing with five
agencies, all of which were created because they have very
distinct expertise. I mean the reason that in 1978 this
happened in the first place was because the government found,
the Congress found, that the specific missions of these
agencies were so dissimilar, so dissimilar that they warranted
actually setting up different agencies. That took a whole lot
to do.
Now, essentially you come back and you put them all
together again, at least up at the top. There has to be a very
good reason for doing that, Mr. Bransford.
Mr. Bransford. And the basic reason for doing it is to
recognize that it is all about the Federal employee complaint
system that very often has overlapping concerns, overlapping
issues. Under the current system if you go to the EEOC on an
issue and you want to take it to Federal Court on
discrimination, you have to go through the discrimination
route. If you want to argue Federal Civil Service, you take it
through the MSPB and the Federal Circuit.
Ms. Norton. Would you be in favor of what we have in the
Federal court system or in most court systems, you choose your
forum?
Mr. Bransford. You choose your forum, that is right, and--
--
Ms. Norton. I am sorry. Would you be in favor of that as
one way to deal with this problem, so that you wouldn't then
say, oh, I chose my forum, but here I am going to relitigate it
in another forum.
Mr. Bransford. But you would still have multiple ways of
attacking a problem, and I think tighter rules on choosing your
forum would be a positive reform, but I don't think it takes
care of the compete problem because you still have a very
lengthy delay in the EEO processing that is not being
addressed.
Ms. Norton. Mr. Chairman, I can stop here if you want to go
to other people.
But again, you keep going back to a delay in the EEO
processing. Therefore I want to focus you on the EEO
processing. If the delay is there, then the question for the
committee is why don't we tackle where the biggest delay is? We
may still find we have delays in the appeal process. That is on
the table as far as I am concerned, but the notion of not
tackling where the real delay is, that is where the employee is
encountering problems. Where is your little sheet that I had?
Your employee, and if you say that is who you are doing this
for, your employee that you are so concerned about, and your
manager, at 601 days for the agency. That is the agency where
you are, Mr. Bransford.
Mr. Bransford. That is correct.
Ms. Norton. For the agency to decide a discrimination case.
You still got it at that point, you, the agency. And then 280
days for the investigation. I am just perplexed, Mr. Chairman,
why I would want to leap over to the appeals process without
tackling this and finding ways to make this--to reduce this
process, given the results you, yourself point out here. Most
of these cases are going to wash out in the first place, so we
are interested in the tiny, tiny number that don't wash out.
Mr. Porter. Congresswoman, that is why we are here today,
and I think your point is well taken.
Mr. Bransford. Our proposal would actually start the
process in the court on day 1, not day 601, and the
investigation, the consideration of the complaint would be done
by the independent Court of Appeals, the Federal Employee----
Ms. Norton. Then I have to have a followup question. Then
what you are suggesting, Mr. Bransford, is we have a court
where we transfer the complexity in the administrative process
now to, of all places, what is always a more costly process, a
court process. You do say in your sheet that the Court's
jurisdiction would encompass duties the Office of Special
Counsel, the General Counsel's Office of the FLRA. The court--
imagine this now--the court would have an investigatory arm. In
America we are used to agencies investigating. Encompassing the
duties of the OSC, the Office of Special Counsel and the
General Counsel of the FLRA. This transfer of jurisdiction, it
seems to me, doesn't do anything about the number of days,
doesn't do anything about the delays. What it does do is pile
them all up in one agency, and we know from experience that if
you want to make a problem worse, create a big bureaucracy and
say, now all of the problems are yours, all the delays are
yours, all of the jurisdiction, including jurisdiction that a
court has never had, which is jurisdiction over investigations,
that is all yours. And somehow if we put all of that in a
court, simply because it is under the same roof, everything is
going to be done more quickly than it is done now.
I don't know, Mr. Chairman, I remain to be convinced.
Mr. Porter. Thank you, Congresswoman, appreciate it.
Mr. Cummings.
Mr. Cummings. I am just going to be very brief because I
think Ms. Norton pretty much expressed my frustrations here.
But I just want to just bring some of the--you know, Mr.
Bransford, and I think it was Mr. McPhie, I understand you are
trying to do something to help employees, and particularly
employees that find themselves in a situation where they need a
remedy for what they at least perceive to be a problem. I am
just wondering, you know, I have read a statement from Colleen
Kelley, the president of the National Treasury Employees Union,
who seems to think that this is not the greatest idea. I guess
when I am trying to help somebody, I would kind of like to know
that the help that I am offering them is truly help and not
something that they would deem is not helpful. So I am just
wondering--and then I want to put alongside of that, when we
did the Department of Homeland Security, we combined some 22,
put together 22 agencies and created a super agency. When we
look at what happened with Katrina, there is not one human
being that cannot say that there was a failure on the part of a
lot of folks, local, State and definitely Federal.
So I am trying to figure out. She claims, that is, Ms.
Kelley claims that this is a bureaucratic nightmare, and I
think that is to some degree what Ms. Norton was kind of
getting at. I just want to make sure--first of all, have you
been in contact with any of the union folk?
Mr. Bransford. I discussed the broad problem with the
unions. I have not discussed with them or had a debate with
them about this specific proposal, nor have I attempted to get
their buy-in to it.
Mr. Cummings. Not necessarily buy-in. I tell my staff, in
dealing with people, one of the best things that you can do is
consult with people, at least talk to them, because the person
who could be your greatest advocate can become your worst enemy
if they are not at least in some way included in the process.
It seems to me that if I am trying to create something and redo
something to help someone, it just seems to me--you don't have
to have a buy-in, but at least consultation, because I am sure
the unions catch a lot of the flack when these problems come
up. I was just curious as to what your process was, that is
all.
Mr. Bransford. What our process was in developing this
proposal?
Mr. Cummings. Yes.
Mr. Bransford. We talked to quite a few officials and ex-
officials at the various agencies that do this, and we talked
to many managers, and received feedback from them about their
concern, and in addition to that, we talked to a lot of
employee advocates about how these different agencies actually
work.
I have discussed with AFGE and NTEU and other labor unions
the basic problem of the employee appeals system, including the
efforts of the last 3 years to diminish the authority and use
of the Merit Systems Protection Board, and I am well aware of
their position on that. I am also well aware, Congressman
Cummings, that the unions would probably be very much against
my proposal because of its provision to eliminate labor
arbitration.
Nonetheless, we believe that it is the best avenue, it
makes the most sense. The Merit Systems Protection Board was
created to hear the very same cases that labor arbitrators also
hear, and it makes no sense to have a Board that is accountable
to Congress and to the courts, and labor arbitrators that are
not nearly as accountable, and a perception of managers--and
the employee advocates, I might also add--that in general
arbitrators often unreasonably favor the employee in their
decisions. It seems to me to be, when you look at it, an option
that is unnecessary, especially considering the Board, but one
that is very much cherished by the union, and it goes back a
long way, and I would expect them to oppose our proposal on
that basis alone.
Mr. Cummings. Where would the court be centralized? I mean
where would it be? Would it be regional? I mean would we have
courts around the country? I take it that MSPB and the FLRA
maintain some kind of regional agencies throughout, or
umbrellas out there, and I am just wondering first of all,
where do you propose this court being?
Mr. Bransford. I think those details need to be worked out
as the legislative process unfolds, but I would imagine like
most Title I courts, it would be headquartered in Washington,
but I would assume it would have offices throughout the
country. The MSPB has I think five or seven regional offices.
The FLRA has offices that deal with Federal employee issues,
and the EEOC has quite a few offices. So I would think you
would have to set up offices in every place where currently to
Federal agencies deal with Federal employee complaint issues.
Mr. Cummings. And offices meaning that they would also be
places where matters could be adjudicated. Is that what you are
saying?
Mr. Bransford. Matters would be adjudicated. Hearing
examiners and judges would be housed in those offices, and
court staff to investigate and do dispute resolution.
Mr. Cummings. Well, the jury is still out. Thank you.
Mr. Porter. Thank you, Mr. Cummings.
We are going to be voting on the House floor in about 10
minutes, and I am willing to have another round of questions if
the committee would like. Congresswoman.
Ms. Norton. Commissioner Dominguez, wouldn't some of this
problem go away if the EEOC had the same kind of enforcement
authority in the Federal sector that it has in the private
sector?
Ms. Dominguez. Congresswoman Norton, certainly it would
improve. We are often frustrated because there is oftentimes a
resistance to provide necessary data during the hearings
process, and of course, the Commission doesn't have any kind of
sanctioning powers to impose submission of that data.
Let me just for the record--I know that SEA provided the
data for 2004 in terms of hearings, but I am just very proud to
report that in 2005 we have gone from 421 days to 249 days, so
we are trying to squeeze out the efficiencies, but there is a
point where you have to look at the foundation of the process,
not necessarily what the current process is, but how are we
organized. And that I think was really the key part here.
Ms. Norton. I think first things first. We may have
problems in the appeal process, but I am yet to understand why
it would begin there rather than where all the delay is.
Mr. Bransford, for as long as--and there has been Federal
law and administrative process, it has been Federal process to
keep people out of court. That is why you have all of these
decisions, some of them counter-intuitive in this process, but
have all these decisions saying exhaust your remedies, exhaust
your remedies.
Your proposal would actually make what are now
administrative functions into judicial functions, functions
literally of a court. Isn't that turning the whole notion of
keeping people out of court on its head, and reversing what has
been Federal policy for decades? Why would we want to do that?
Mr. Bransford. Well, we would want to do it for two
reasons. One is, by creating a Title I court like this, I think
you are creating an organization that would have a tremendous
degree of independence and integrity, sufficient, for the
second reason, to remove these Federal employee cases from
Federal District Court and actually putting them in this Title
I court, where employees would have----
Ms. Norton. I am talking about the administrative function.
Mr. Bransford [continuing]. One shot at it. We think by
creating a specialized court that was focusing only on Federal
employee issues, you could do this effectively without having
an administrative process, and that administrative process that
you are discussing is quasi-judicial already, the MSPB and the
FLRA and the EEOC and the Office of Special Counsel, which we
think this court----
Ms. Norton. Mr. Bransford, are you aware that in the
processes right here, most employees don't get a lawyer. Once
you say you are going into some kind of court, most--many cases
are handled by people themselves, pro se, by non-lawyers, by
union representatives who aren't lawyers, by friends who come
in to help them. Now we are creating, under your proposal, an
administrative court, a lot of complexity in it, complexity
that is now in the administrative process. Wouldn't there be a
need for a lawyer in this court process?
Mr. Bransford. Well, there are also people who go to
Federal District Court pro se.
Ms. Norton. Very few. That is no answer to my question.
Mr. Bransford. I would agree. I would agree with that,
but----
Ms. Norton. The question here is, do you envision that
people would be able to go into this process without a lawyer,
or would feel that perhaps before an Article I court, they best
have a lawyer?
Mr. Bransford. I feel that this process could be set up
specifically to handle pro se cases exactly like they are
handled at the MSPB or the EEOC----
Ms. Norton. So here we have then a court doing what the
administrative process does, only we call it a court and we
send a signal that it should be treated like a court. There are
a lot of mixed functions in here. One of the great debates of
the administrative process when the NLRB was set up was about
firewalls and fairness. One thing that having separate agencies
does is to at least make it clear that notion of fairness isn't
being violated because it is all mixed up in the same agency. I
regard that as a problem that needs to be dealt with.
You have the court handling advisory functions of
independent agencies. You have things in this court that no
court has ever had anything to do with, functions like issuance
of guidance on labor relations issues. It doesn't sound to me
like this is a court at all, but a combination agency and
court, some kind of hybrid, that transfers a lot of complexity
now in the administrative process upward.
I do have a question for Ms. Cabaniss. Ms. Cabaniss, you
are aware that we have before us not as a piece of formal
legislation, but what has been outlined certainly in a form
which could become legislative, a proposal called ``Working for
America Act.'' So in viewing this proposal, I have had to look
at it in light of that proposal because--and to ask you what
would be left of the FLRA if on the one hand you get the
Working for America Act, on the other hand you get this act?
For example, under the proposed Working for America Act--I
am looking here at the executive summary--the unions would lose
certain rights that now apparently are before you, the right to
attend formal discussions between management and employees. You
handle I guess such grievances. Existing union right to attend
formal discussions between management employees on any
personnel matter. There is, you know, emergencies. An agency
could declare emergency whenever it--excuse me--damn well
pleased, and there goes consultation and a whole lot of things
that by fiat don't come any longer if we were to pass this act,
and the Working for America Act.
And so this needs--you are very modest here--you kind of
say, this needs a little study. I am asking you if we pass both
of these things, the Working for America Act and this proposal,
whether or not there is any need for an FLRA, or whether we
shouldn't just streamline government all together, and
eliminate the FLRA?
Ms. Cabaniss. That is a very good question. I see the
proposals as being distinct. The SEA proposal clearly looks as
if it would take the place of the FLRA. The Working for America
Act, as I understand it, would limit the scope of bargaining.
It doesn't necessarily take away any of the responsibilities of
the FLRA. It might change the type of cases that come before
the FLRA, which certainly could have an impact on the number of
cases, depending on what the ultimate scope of bargaining is,
and how many times, you know, unions take to have those cases
come before the FLRA. So it certainly would have an impact on
our jurisdiction.
Ms. Norton. But there wouldn't be much left of the FLRA if
we had this proposal.
Ms. Cabaniss. As I understand it, it looks like it would
largely take the place of----
Ms. Norton. Just as well abolish the FLRA.
Mr. Porter. Thank you.
Ms. Norton. I think that is a very weighty and heavy notion
to bear in mind here, and if it is that easy, Mr. Chairman,
fine, but it hasn't seemed that easy to me.
Thank you very much, Mr. Chairman.
Mr. Porter. Thank you for your comments.
Mr. Davis, any questions?
Mr. Davis of Illinois. Yes.
Mr. Bransford, if we could go back. It seems that I
remember at a point you suggested that part of the problem with
the EEO process was that managers were not really integrated
into that process. If that is the case, could there not be some
way to correct or fix that to the extent that input from
managers could be a part, and would that not maybe help to
streamline the process a bit?
Mr. Bransford. Yes, it would. I believe that managers
should be more a part of the process, and the Senior Executives
Association has a legislative proposal that we have entitled
the Federal Managers Fairness Act to do exactly that, to make
managers more a part of the process. And to the extent that
this independent court does not become a reality or is delayed
in becoming a reality, we think it is important that managers
are brought into the EEO process, that they be informed when a
complaint is filed, that they be entitled to representation
during investigations, that they be provided with relevant
documents, that they be consulted, not necessarily in any
authoritative way, but at least advised before a case is
settled so that their input could be obtained, and that they be
reconsidered for lost awards, lost promotions, lowered
performance appraisals if an EEO complaint is later found to
not have merit.
We think that is important, and I suspect that the SEA's
proposal on this court would be studied for some period of
time. We hope that the other reform would take place in the
interim, would be less necessary if an independent court were
set up because we think these cases would move through it
rapidly.
Mr. Davis of Illinois. Representative Norton has sort of
indicated that this would be a different kind of court, sort of
a hybrid, something different than what individuals are
generally accustomed to. Do you think that employees might end
up feeling that they were shortchanged if they now are blocked
from moving to Federal court in the traditional sense, or that
they now can't go anyplace else, that this is it, and other
people have the chance to go to Federal Court, maybe even to
the Supreme Court, if necessary, that someone might feel that
their rights had been diminished or taken away?
Mr. Bransford. I have thought a lot about that because I
think that is a very important question. Where I come down on
it is by creating an Article I court you are going to give the
court I think sufficient prestige and credibility that it will
be able to fairly, fully decide these cases. They would be
appealable to the Federal Circuit and then ultimately to the
Supreme Court for EEO cases, so they would be fully appealed.
The current system is to some extent clogging the Federal
Courts. The data that was thrown out here this morning is only
1,300 cases, but there are still quite a few in Federal Court,
and these are cases that have already gone through the
administrative process. Unlike in the private sector, where an
employee goes through the EEOC process in a less intensive way
and faster, and they can go to Federal District Court, there's
no separate mechanism.
It seems to me that the Federal employee appeals and
complaints system has learned enough to be able to set up this
type of a court to give it sufficient significance so that
Federal employees would accept it, decide cases rapidly, and
also deal with cases as far as the input in a less formal way,
so that employees could feel comfortable doing that without
having a lawyer if they chose to.
Mr. Davis of Illinois. And finally, anyone who would
respond, is there any way that you can think of that would just
simply shorten for people the process? I mean the title I think
``Justice Delayed, Justice Denied.'' I mean there are people
who obviously just simply feel their cases will never get
adjudicated, that they will just hang forever and forever and
forever and forever, and they will never know. Does that do an
injustice to our judicial notions and our judicial system, and
is there a way to really kind of speed that up?
Ms. Cabaniss. I know, at least in the FLRA's experience, in
our statute Congress required us to do a certain type of case
within a specific time deadline. Perhaps Congresswoman Norton
has a better sense than I do of why that was the case. When the
decision was made that the FLRA has to act on cases involving
issues of representation, we have to act as the Authority
within 60 days. Those kind of time limits were not imposed in
our statute for other types of cases. That is the only issue
that I would option--suggestion that I would make, if Congress
makes a determination that the cases should be done within a
specific amount of time, you might look to that, and the
history behind it as a model.
Mr. Bransford. Congressman Davis, if I could address your
point. Current law does impose time limits, but the time limits
don't have meaningful sanctions because when the time limit
expires, the employee then has a right to move on to the next
phase, and they can choose where to go. And very often, when
you are representing an employee, as I have had the occasion to
do over the years, and you get to that 180 days, you are left
with a choice of, well, do I go to Federal Court and its very
expensive process, do I go to the EEOC which is a less
expensive but still expensive process, or do I wait for the
agency to finish the investigation and learn a great deal of
useful information? Usually you decide to wait, and the agency
just takes off and takes its time.
So if the time limits had more meaningful sanctions,
perhaps that could speed the process up.
Mr. Davis of Illinois. Thank you very much, Mr. Chairman.
Mr. Porter. Thank you.
A lot of good people that have real problems won't enter
the system because they are afraid it is going to take so long
or that they are wasting their time or have some of that
intimidation. I would like to note for the record that members
can submit additional questions.
Ms. Norton. Mr. Chairman, could I just--irresistibly
because we have had a hearing on the Working for America Act,
where you were just seeking reactions to it, and here--my
recollection is that Ms. Cabaniss did not appear at that
hearing and I am not sure anybody from the FLRA appeared at
that hearing. I would like to know whether she supports the
Working for America Act proposal?
Ms. Cabaniss. I don't really think that it is appropriate.
You all had the opportunity to talk to all the stakeholders,
see where they are. The one thing I do support and I think is
appropriate, is that you all are having this discussion.
Unlike, for example, Superfund or the Clean Air Act, so many of
these statutes come up for reauthorization that Congress has an
opportunity to bring in all the stakeholders, those who are
affected, have the hearing, and discuss is this where we want
to be? Where do we want to go?
I don't know that conversation has really taken place
wholesale on the statute governing the FLRA. Obviously, there
have been changes over the years, amendments through the
appropriations process, but I don't know that anyone has really
taken a hard look or whether or not the statute best serves the
interest of the agencies, but more importantly the interest of
the employees. We are a complex statute. Generally you do need
a lawyer to come before the FLRA. I think it is always
appropriate to have that discussion whether or not our statute
is best serving the needs of our customers.
Ms. Norton. But you are not prepared to endorse that
proposal at this time?
Ms. Cabaniss. No, ma'am, I am not, just because it is not a
piece of legislation yet. We haven't been involved.
Ms. Norton. But for us to be doing a piece of legislation
that affects primarily your agency, it seems to me that you
would be the first to want to have something to say about it.
Ms. Cabaniss. Well, if given the opportunity to formally
engage on that, we would certainly be happy to.
Ms. Norton. You hear her, Mr. Chairman? She would be happy
to engage in it. She is not engaging right now when I ask her
questions, but perhaps you can engage Ms. Cabaniss later.
Mr. Porter. Thank you for your questions, and thank you for
your testimony. I appreciate you all being here. Members do
have time to submit for the record additional questions.
Thank you all for being here. Have a good day.
[Whereupon, at 11:53 a.m., the subcommittee was adjourned.]
[The prepared statement of Hon. Elijah E. Cummings and
additional information submitted for the hearing record
follow:]
[GRAPHIC] [TIFF OMITTED] T5705.043
[GRAPHIC] [TIFF OMITTED] T5705.044
[GRAPHIC] [TIFF OMITTED] T5705.045
[GRAPHIC] [TIFF OMITTED] T5705.046
[GRAPHIC] [TIFF OMITTED] T5705.047