[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
  ESTABLISHING A COMMISSION TO RECOMMEND IMPROVEMENTS FOR THE FEDERAL 
                       EMPLOYEES APPEALS PROCESS

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON THE FEDERAL WORKFORCE
                        AND AGENCY ORGANIZATION

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 11, 2006

                               __________

                           Serial No. 109-226

                               __________

       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


                                 ______

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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)
BRIAN P. BILBRAY, California

                      David Marin, Staff Director
                Lawrence Halloran, Deputy Staff Director
                       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
JEAN SCHMIDT, Ohio                   CHRIS VAN HOLLEN, Maryland

                               Ex Officio
                      HENRY A. WAXMAN, California

                     Ron Martinson, Staff Director
                           Alex Cooper, Clerk
          Mark Stephenson, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 11, 2006....................................     1
Statement of:
    Bransford, William L., general counsel, Senior Executives 
      Association; Colleen M. Kelley, national president, 
      National Treasury Employees Union; John Gage, national 
      president, American Federation of Government Employees, 
      AFL-CIO; and Karen Heiser, vice president, Federal Managers 
      Association Chapter 88.....................................    55
        Bransford, William L.....................................    55
        Gage, John...............................................    70
        Heiser, Karen............................................    90
        Kelley, Colleen M........................................    63
    McPhie, Neil A.G., chairman, Merit Systems Protection Board; 
      William Tobey, Deputy Solicitor, Federal Labor Relations 
      Authority; Cari M. Dominguez, Chair, Equal Employment 
      Opportunity Commission; Scott Bloch, special counsel, U.S. 
      Office of Special Counsel; Nancy H. Kichak, Associate 
      Director, Strategic Human Resource Policy Division, Office 
      of Personnel Management; and Scot Beckenbaugh, acting 
      deputy director, Federal Mediation and Conciliation Service     8
        Beckenbaugh, Scot........................................    42
        Bloch, Scott.............................................    28
        Dominguez, Cari M........................................    21
        Kichak, Nancy H..........................................    37
        McPhie, Neil A.G.........................................     8
        Tobey, William...........................................    16
Letters, statements, etc., submitted for the record by:
    Beckenbaugh, Scot, acting deputy director, Federal Mediation 
      and Conciliation Service, prepared statement of............    44
    Bloch, Scott, special counsel, U.S. Office of Special 
      Counsel, prepared statement of.............................    30
    Bransford, William L., general counsel, Senior Executives 
      Association, prepared statement of.........................    58
    Cabaniss, Dale, chairman, Federal Labor Relations Authority, 
      prepared statement of......................................    18
    Dominguez, Cari M., Chair, Equal Employment Opportunity 
      Commission, prepared statement of..........................    24
    Gage, John, national president, American Federation of 
      Government Employees, AFL-CIO, prepared statement of.......    72
    Heiser, Karen, vice president, Federal Managers Association 
      Chapter 88, prepared statement of..........................    93
    Kelley, Colleen M., national president, National Treasury 
      Employees Union, prepared statement of.....................    65
    Kichak, Nancy H., Associate Director, Strategic Human 
      Resource Policy Division, Office of Personnel Management, 
      prepared statement of......................................    39
    McPhie, Neil A.G., chairman, Merit Systems Protection Board, 
      prepared statement of......................................    11
    Porter, Hon. Jon C., a Representative in Congress from the 
      State of Nevada, prepared statement of.....................     4


  ESTABLISHING A COMMISSION TO RECOMMEND IMPROVEMENTS FOR THE FEDERAL 
                       EMPLOYEES APPEALS PROCESS

                              ----------                              


                         TUESDAY, JULY 11, 2006

                  House of Representatives,
      Subcommittee on Federal Workforce and Agency 
                                      Organization,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2 p.m., in 
room 2247, Rayburn House Office Building, Hon. Jon C. Porter 
(chairman of the committee) presiding.
    Present: Representatives Porter, Davis, Norton, Cummings, 
and Van Hollen.
    Staff present: Ron Martinson, staff director; Chad Bungard, 
deputy staff director; Jessica Johnson, chief counsel, OPM 
detail; Alex Cooper, legislative assistant; Brian Chatwin, 
intern; Mark Stephenson and Tania Shand, minority professional 
staff members; and Teresa Coufal, minority assistant clerk.
    Mr. Porter. I would like to bring the meeting to order, and 
thank you all for being here today. We are going to be called 
to vote in a few moments. I know you have experienced that 
phenomenon in the past. I think about 2:15 or 2:20, we are 
probably going to be called to vote, and I think we have a 
series of three or four votes.
    Today's hearing is Establishing a Commission to Recommend 
Improvements for the Federal Employees Appeals Process. Again, 
I would like to thank everyone for being here today to discuss 
the formation of a Federal Employees Appeals Commission.
    In a previous hearing, Justice Delayed is Justice Denied, 
there appeared to be general recognition by the agency 
stakeholders and the members of the subcommittee that problems 
exist in the Federal employee appeals process. The current 
system, implemented as a result of the 1978 Civil Service 
Reform Act, is complex, often confusing and may have outlived 
its original purpose.
    The GAO once had this to say about the current system: 
``Because of the complexity of the system and the variety of 
redress mechanisms it affords Federal employees, it is 
inefficient, expensive and time-consuming.'' In hopes of 
examining and potentially reforming the process, I have 
disseminated a draft legislative proposal to establish a 
commission whose purpose would be to study the challenges in 
the current Federal employee appeals process, and the many 
potential solutions available to increase the efficiency and 
fairness of the process.
    In the first hearing, we shed light on some of the more 
glaring problems with the current system generally: appeals 
take too long, are handled inefficiently and are oftentimes 
frivolous. Federal employees and managers do not always receive 
a timely resolution of their disputes, although the Merit 
Systems Protection Board [MSPB], the Equal Employment 
Opportunity Commission [EEOC], and the Office of Special 
Counsel [OSC], and the Federal Labor Relations Association 
[FLRA], all conduct their fiduciary duties admirably and are 
consistently striving for improvement.
    I anticipate that by working together, these agencies can 
better meet their administrative needs and the needs of the 
employees and managers in assuring that justice is available to 
all.
    In 1978, the current Federal employees appeals process was 
created with the expectation that splitting adjudication of 
employee disputes into multiple agencies would resolve the 
problems with the appeals system. Almost 30 years later, the 
current system has improved little upon the same problems that 
spurred the original changes. The current catalyst for change 
is the continuing inexcusable delays in the system.
    Last year, this subcommittee looked at only one possible 
approach to improving the Federal employees appeals process by 
consolidating appeals and filtering them through a one-stop 
shop agency or Federal court with the responsibility for 
employee appeals. Today, we are going to discuss the formation 
of a commission to look at other possible approaches to fixing 
the flaws in this system.
    The commission would be charged with exploring a whole 
realm of options and solutions to repair a somewhat broken 
promise. The goal here today is to discuss the form and the 
function of this commission. Our overall intent is not to 
curtail rights but rather to expedite justice, to ensure fair 
grievance procedures by eliminating its inefficiencies.
    For instance, I find it most unfortunate if our current 
belabored system acts as a deterrent to aggrieved employees 
because they fear it is a waste of time and not worth the risk 
involved in waiting years for a resolution, while they often 
continue to work in the same environment that gave rise to the 
claim in the first place.
    Written testimony submitted by the National Treasury 
Employees Union [NTEU], and the American Federation of 
Government Employees [AFGE] at last year's hearing expressed a 
need for reform of the current appeals process. NTEU explicitly 
stated it would be appropriate for the subcommittee to 
concentrate on exploring proposals to streamline the Federal 
sector EEO process. The AFGE praised the subcommittee's 
efforts, stating, ``Streamlining the employee appeals process 
is a laudable goal for the subcommittee, and we admit there is 
room for some improvement in this present system.'' AFGE called 
the current system hopelessly complex and expressed displeasure 
with the lengthy appeals routes in our current system, which 
splits jurisdiction and requires overlapping review.
    The commission's membership that I am suggesting that we 
form would be composed of 10 members, including representatives 
from each of the stakeholder agencies and organizations 
represented by the distinguished witnesses from whom we will 
hear shortly. With the formation of this commission, all of you 
here today have an opportunity to study the problems and 
recommend solutions that will best meet the needs of employees 
and managers seeking resolutions of employee grievances.
    I expect the commission will offer recommendations for 
streamlining the process to benefit both employees and 
managers. Additionally, the commission may want to explore how 
claims and disputes are reviewed in the initial stages of 
agency review, how improvements at this stage may improve 
efficiency in the appeals process. And in a June 2006 report 
the GAO found little evidence of coordination at the operating 
level between EEOC and OPM developing policy, providing 
guidance and exercising oversight, despite overlapping 
responsibilities in Federal workplace EEO.
    Coordination or lack thereof may need to be examined at 
every stage of the process. The emphasis would be to focus on 
the process and recommend program changes and legislative 
fixes, if necessary. By establishing a commission, I wish to 
bring together representatives from the primary stakeholders, 
those who are best situated to analyze what does and does not 
work within the current Federal employees appeal system.
    You are the experts, and I hope the visionaries who will 
have an opportunity to advise Congress as to how the Federal 
employee appeals process can be improved and streamlined at all 
levels. The subcommittee needs your assistance to build on a 
solid foundation to create a more efficient and effective model 
to reserve the valuable rights of Federal employees. There are 
many tools at your disposal: institutional knowledge of what 
has and has not worked well in the past; employees and managers 
who have been through the process and see room for improvement; 
vast advancements in technology; alternative dispute resolution 
with the potential for resolving employee disputes early in the 
process; and countless other resources to draw upon.
    This commission will have the opportunity to work together 
and recommend improvements to better meet the best interests of 
us all. I commend you for being here today and for your 
willingness to continue to work together to tackle a complex 
issue. We need to enhance our approach to achieving a just, 
efficient and effective employee appeal system. I am confident 
with your expertise we can reserve the rights of Federal 
employees while at the same time increasing the efficiency and 
effectiveness of the Federal employees appeals process.
    [The prepared statement of Hon. Jon C. Porter follows:]

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    Mr. Porter. With that said, I would like to invite our 
first panel to share some of their comments. But first, I would 
like to acknowledge that we now have a quorum present. Our 
meeting is in full compliance. I would also like to recognize 
the ranking minority member, Mr. Davis.
    Mr. Davis. Thank you very much, Mr. Chairman, and let me 
thank you for calling this hearing. I also want to thank all of 
the witnesses who have agreed to come and testify today.
    Mr. Chairman, last year the subcommittee held a hearing on 
a proposal by the Senior Executive Association [SEA], to 
streamline procedures for hearing Federal employee allegations 
related to personnel practices. SEA proposed the creation of a 
Federal Employee Appeals Court, which would combine most 
adjudicatory functions currently performed 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 
the proposal, the decisions of this court would be final and 
not subject to appeal, except in the case of employment 
discrimination.
    During consideration of the SEA proposal, one of the 
witnesses, MSPB Chairman Neil McPhie, proposed as an 
alternative the creation of a commission of relevant 
stakeholders that would suggest changes to the system. Creation 
of such a commission is the subject of today's hearing. 
However, we need to be clear about what the problem is before a 
commission is created to solve it.
    There does not seem to be much complaint with the process 
with regards to the MSPB or FLRA with the exception of so-
called mixed cases, which involve both MSPB and the EEOC. If 
that is the case, it would be better if the commission focused 
on the current process for resolving discrimination complaints 
in the Federal work place.
    Another concern is that the commission would be made of six 
political employees that represent the MSPB, FLRA, the EEOC, 
OSC, OPM and the Federal Mediation and Conciliation Services. 
Two of the commission's representatives would be Federal 
supervisors or managers and only two union representatives 
would sit on the commission. This is particularly troublesome 
because it is not clear whether the commission would have to 
reach a consensus on the final report or recommendations, or if 
there would be just a report of dissenting views.
    I need only think of the processes used to develop the 
Department of Defense and Department of Homeland Security 
personnel systems to know what happened when at the end of the 
day, the majority does not have to reach a consensus with the 
minority on how to proceed. Of course, all of us want to make 
sure that there is fairness, that there is equity, and that we 
arrive at the best resolution of problems, so that we can keep 
them to a minimum.
    I look forward to hearing from the witnesses on how to best 
address the concerns raised and the Federal appeals process. 
Again, Mr. Chairman, I thank you for calling this hearing, also 
for the efficient manner in which you start. I noticed that you 
were already going as I got here. [Laughter.]
    And again, we thank the witnesses and thank you very much, 
and I yield back.
    Mr. Porter. Thank you for the kind words of support. 
[Laughter.]
    Just remember, we are going to start meeting in Las Vegas 
instead of here at the Capitol, and so make sure you are on 
time, OK? [Laughter.]
    Thank you very much.
    Mr. Davis. There's a heavy discussion going on right now 
about that, that involves Las Vegas and Internet gaming.
    Mr. Porter. Yes, there is, as a matter of fact. What 
happens in Vegas stays in Vegas. [Laughter.]
    What happens in Rayburn stays in Rayburn, right? 
[Laughter.]
    Thank you. We do have some procedural matters. I ask 
unanimous consent that all Members have 5 legislative days to 
submit written statements and questions for the hearing record. 
Any answers to the written questions provided by the witnesses 
will also be included in the record. Without objection, so 
ordered.
    I ask unanimous consent that all exhibits, documents, and 
other materials referred to by Members and witnesses may be 
included in the hearing record, and that all Members be 
permitted to revise and extend their remarks. Without 
objection, so ordered.
    It is also the practice of this committee to administer the 
oath to all witnesses. So if you would all please stand and 
raise your right hands.
    [Witnesses sworn.]
    Mr. Porter. Let the record reflect the witnesses have 
answered in the affirmative.
    I would like to get the first panel started, and then make 
sure everyone is at the table, so the witnesses now will be 
recognized for their opening statements. We ask you to 
summarize your testimony in 5 minutes. Your full statement may 
be added to the record.
    We are going to be going to vote in about 7 or 8 minutes, 
so possibly we can have possibly two, so you don't necessarily 
have to wait around. We will hear from Mr. Neil McPhie, Mr. 
Bill Tobey, Cari Dominguez, Scott Bloch, Nancy Kichak and Scot 
Beckenbaugh. We will start with Mr. McPhie.

    STATEMENTS OF NEIL A.G. MCPHIE, CHAIRMAN, MERIT SYSTEMS 
  PROTECTION BOARD; WILLIAM TOBEY, DEPUTY SOLICITOR, FEDERAL 
  LABOR RELATIONS AUTHORITY; CARI M. DOMINGUEZ, CHAIR, EQUAL 
    EMPLOYMENT OPPORTUNITY COMMISSION; SCOTT BLOCH, SPECIAL 
   COUNSEL, U.S. OFFICE OF SPECIAL COUNSEL; NANCY H. KICHAK, 
 ASSOCIATE DIRECTOR, STRATEGIC HUMAN RESOURCE POLICY DIVISION, 
 OFFICE OF PERSONNEL MANAGEMENT; AND SCOT BECKENBAUGH, ACTING 
  DEPUTY DIRECTOR, FEDERAL MEDIATION AND CONCILIATION SERVICE

                 STATEMENT OF NEIL A.G. MCPHIE

    Mr. McPhie. Good day, Chairman Porter, Ranking Member Davis 
and other members of the subcommittee.
    My name is Neil McPhie. I am the chairman of the U.S. Merit 
Systems Protection Board. Thank you for permitting me to appear 
today to testify about the proposal to establish a commission 
to study the Federal employee appeals system. I commend the 
members of this subcommittee for their vigilance in exploring 
ways to improve the procedures for processing challenges to 
personnel actions in the Federal Government.
    I respectfully submit my written statement to the committee 
and will use this time to provide some information and address 
some areas of concern.
    Recently, as you previously mentioned, the Senior Executive 
Association [SEA], proposed the consolidation of the existing 
complaint, appeals and grievances processes into a single 
system to be administered by a Federal Employees Appeals Court. 
During last year's hearing on that proposal conducted by this 
subcommittee, I suggested that SEA's proposed and other 
recommendations warranted further study. I am pleased to have 
the opportunity to discuss the committee's proposed mechanism 
for conducting such a study.
    As you know, Congress and the administration have placed 
significant focus on reform of the Federal personnel system. As 
such, I believe the committee's proposal presents a timely 
opportunity to study the procedures used to resolve disputes 
arising in the Federal workplace. In recent years, Congress has 
granted both the Department of Homeland Security and the 
Department of Defense the authority to establish new human 
resource systems. The administration has drafted a bill known 
as the Working for America Act that would change pay, 
performance management and collective bargaining rules for the 
rest of Government.
    More recent legislation has been introduced addressing the 
employee performance appraisal process and the establishment of 
training programs. I am not here before this subcommittee to 
speak for or against any of those initiatives. As I have said 
time and time again, the Merit Systems Protection Board is 
prepared to play the role that policymakers designate for it, 
whatever systems that emerge.
    There is a perception that the multiplicity of laws and 
regulations that govern the Federal Government employment 
relationship make the current dispute resolution processes too 
complex, confusing and time consuming. As I discussed in the 
earlier hearing, a single personnel action may give rise to 
many different legal claims that may be asserted before several 
different bodies. A study that examines, among other things, 
the nature and extent of any overlap in the responsibilities or 
authorities of the multiple agencies that consider such claims 
is a crucial first step in identifying ways to improve the 
effectiveness of the Federal employee redress system as a 
whole.
    In this regard, the EEOC recently issued a detailed report 
on the processing of Federal sector discrimination complaints, 
suggesting that system improvements in that area may warrant 
consideration. Any study of complaint appeals and grievance 
processes would include a review of the operations of the Merit 
Systems Protection Board.
    And let me just touch upon some of the ways in which the 
Board handles its own business. We have worked at the Board 
aggressively to reduce our backlog and our average case 
processing times. The Board reduced its inventory of pending 
cases by 48 percent in fiscal year 2005, and by an additional 
16 percent in the first 8 months of fiscal year 2006.
    Average processing time for administrative judges in the 
first 8 months of fiscal year 2006 was 88 days. The average 
case processing time for headquarters decisions was 265 days in 
fiscal year 2005, and that figure has been reduced 
substantially in the first 8 months of fiscal year 2006 to 154 
days. We continue to identify ways through enhanced technology 
and resource development to work more efficiently and 
effectively.
    All the members of the Board are committed to seeing the 
Board carry out its designated role fairly and efficiently in 
whatever dispute resolutions systems policymakers devise. The 
proposed commission to study improvements to current complaint 
appeals and grievance processes is certainly timely and will 
serve to provide the critical data and information by which 
legislators can base their decisions.
    In my view, the proposed members of the commission, to 
include representatives from all stakeholders, to include 
Government agencies and labor, appears well suited to 
accomplish the objectives outlined in the bill. The proposed 
agenda and tasks are ambitious and will require necessary time 
commitments from all members. I am truly grateful to this 
subcommittee for recognizing the need and importance of a study 
and for designating the chairman of the Merit Systems 
Protection Board to chair the commission.
    I look forward to this unique opportunity and challenge, 
and I want to thank you for it. I will be happy to answer any 
questions the Members may have. Thank you.
    [The prepared statement of Mr. McPhie follows:]

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    Mr. Porter. Thank you, Mr. McPhie. We appreciate your being 
here.
    Next we will have Mr. Tobey, who is Deputy Solicitor of the 
Federal Labor Relations Authority.

                   STATEMENT OF WILLIAM TOBEY

    Mr. Tobey. Thank you, Chairman Porter, Ranking Member Davis 
and members of the subcommittee. I am William Tobey, Deputy 
Solicitor of the FLRA, here today to provide a statement on 
behalf of Chairman Dale Cabaniss. Chairman Cabaniss asks that I 
relay her apologies to you for being unable to attend today due 
to unavoidable scheduling and travel conflicts.
    If you do have specific questions for the FLRA, I will be 
happy to take those back to the chairman, so that we can 
followup with you in a timely manner. I will now turn to the 
chairman's statement.
    Chairman Porter, Ranking Member Davis, and members of the 
subcommittee, thank you for the opportunity to appear before 
you this afternoon, as you examine the idea of creating a 
Federal Employees Appeal Commission to study the challenges in 
the current Federal employee appeals process and the realm of 
possible solutions available to increase the efficiency and 
effectiveness of the process. I applaud your continuing 
interest and efforts to evaluate ways to improve Government 
operations, while retaining important due process rights for 
Federal employees.
    We were pleased to appear before you last November to share 
with you some background about our particular agency, its 
structure, and case processing. One of the issues that we were 
asked to address at that time with respect to the employee 
appeals process was the potential overlap of jurisdiction and 
the opportunity to raise issues in alternative forums. In our 
experience and under our statute, although there are examples 
of overlap, which I have reproduced as an attachment to this 
testimony, the issue of overlapping jurisdictions has not been 
a significant issue at the FLRA.
    Previously I noted, and I am sure we would all continue to 
agree, that there is room for continuous improvement, 
administratively and operationally. Both the President and the 
Congress have promoted, encouraged, and challenged us all to 
strive to ensure we are using taxpayer dollars and Government 
resources wisely, whether through the President's management 
agenda, OMB's program assessment rating tool, or Government 
Performance Results Act reporting and committee efforts such as 
this one.
    The Federal Employees Appeals Commission is one way for the 
numerous stakeholders here today to address possible 
improvements in the current process. One alternative the 
committee may wish to consider, however, is to seek the 
assistance of an independent entity or organization to 
accomplish the work of the commission, rather than the 
stakeholders themselves. I believe this would enable all 
stakeholders to participate fully while also enhancing the 
objectiveness of the final work product. For instance, the 
National Academy of Public Administration, or a similar 
organization, not only is structured to undertake such an 
effort, but also could provide a wealth of knowledge and 
experience from its many resources, including former Cabinet 
officers, Members of Congress, managers, scholars, and others 
who could provide additional insight or perspective.
    Mr. Porter. Excuse me, Mr. Tobey, but we are down to about 
4 minutes for a vote. So if you would hold your thoughts.
    Mr. Tobey. I am actually finished now. Thank you very much.
    [The prepared statement of Mr. Cabaniss follows:]

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    Mr. Porter. My apologies for that. Thank you very much.
    There is, I think, a series of about 3 votes, so it should 
be about 30 minutes, if things go well. Thank you. We will be 
in recess.
    [Recess.]
    Mr. Porter. I would like to bring the meeting back to 
order. Our 30 minutes was Federal time, about 55 minutes. So 
thank you for your patience.
    Mr. Tobey, is there anything you would like to conclude 
with?
    Mr. Tobey. No, I am finished, thank you.
    Mr. Porter. My apologies for that.
    Next we will have the Honorable Cari Dominguez, Chair, 
Equal Employment Opportunity Commission. Thank you for your 
patience. It is good to see you again.

                 STATEMENT OF CARI M. DOMINGUEZ

    Ms. Dominguez. Thank you, it is good to see you.
    Thank you very much, Chairman Porter and Congressman Davis 
and members of the subcommittee. I very much appreciate the 
opportunity to be invited back today to testify on this very 
important topic. I am Cari Dominguez, the Chair of the U.S. 
Equal Employment Opportunity Commission.
    Mr. Chairman, I do have a few comments to make, but request 
that my full written testimony be made part of the official 
record.
    As I have stated in previous testimony before this 
subcommittee, I welcome and support your efforts to find ways 
to improve the efficiency and the effectiveness of the Federal 
EEO complaint and appeal processes. This afternoon we meet to 
discuss a draft bill that would establish a Federal Employees 
Appeals Commission. As I understand it, the commission would be 
charged with reviewing the current appeals and grievance 
systems for Federal employees, as administered by the EEOC, the 
Merit Systems Protection Board, the Federal Labor Relations 
Authority and the Office of Special Counsel. The focus of the 
proposed commission's review would be on identifying 
redundancies or overlaps of responsibility or authority by 
these agencies, as well as any procedural ramifications of such 
overlaps.
    The proposed commission would also look at timeliness 
issues, particularly the amount of time it takes the subject 
agencies to process matters brought before them. And of course, 
at the end of this review, the commission would present to the 
President and the Congress a report containing recommendations 
along with their findings.
    When I appeared before the subcommittee last November, my 
testimony described the role of the EEOC and the complaint 
processes that we administer. I offered then my firm belief 
that there is an urgent need to reform the Federal sector 
complaint processing system. The current system is not ideal 
and Federal sector employees clearly deserve better.
    I have shared, expressed concerns that the Federal EEO 
complaint process is too slow and cumbersome and subject to 
real or perceived conflicts of interest. Unlike the processes 
of most of the other agencies which receive complaints and 
grievances directly, an EEO complaint is filed with and 
initially processed by the agency that is accused of 
discrimination, and not the EEOC. The Federal agency accused of 
discrimination investigates the complaint against it. EEOC is 
not at all involved unless the complainant requests an 
administrative hearing before one of our administrative judges.
    Almost always, the complaint has languished for more than 
180 days at the agency where it was filed before the employees 
comes to EEOC to request a hearing. And even then, the 
complaint must return to the agency for final disposition. 
Thus, EEOC's ability to affect the processing of the complaint 
is extremely limited until late in the game when the matter is 
finally presented to us.
    As I also noted in my earlier testimony before this 
subcommittee, I believe that the primary area of EEO complaint 
processing most urgently in need of reform is the initial 
processing conducted by the agency where each complaint 
originates. It is the systems lapse, and not any jurisdictional 
overlaps or redundancies associated with the missions of any of 
the agencies here represented, which adversely affects overall 
complaint processing and certainly undermines public confidence 
in the system. Even the mixed cases we have talked about so 
often involving both EEOC and MSPB affect fewer than 3 percent 
of the cases which come before us.
    Notwithstanding the obvious internal control problems 
associated with Federal agencies conducting their own 
investigations, many Federal agencies have made real 
improvements in the timeliness of processing EEO complaints. 
For example, in fiscal year 2004, it took Federal agencies on 
average 469 days to close an EEO complaint. The average 
processing time for closure this last fiscal year was 411 days, 
a 12 percent reduction, but still considerably more than the 
270 days allowed by EEOC's regulations for complaints without a 
hearing.
    Agencies are also becoming far more efficient in 
investigating EEO complaints. In fiscal year 2004, the average 
time for investigating a complaint was 280 days. In 2005, it 
was 237 days. So I am very, very encouraged that many of the 
Federal agency heads, to whom I have directed my concerns about 
internal complaint processing, have been receptive.
    The recent trends in decreased investigative times and 
enhanced resolution efficiencies are indeed good signs of 
progress. However, we need more work in this area. Only 55 
percent of agency investigations were timely completed in 
fiscal year 2005, and only 25.5 percent of the agencies met the 
regulatory timeframe.
    At EEOC, we have significantly reduced the processing times 
for the majority of the cases that have come before us. Our 
average processing time for hearings has declined to 249 days, 
almost a 30 percent reduction from fiscal year 2004. And the 
average processing time for the appeal closures has dropped 
from 207 days in fiscal year 2004 to 194 days in fiscal year 
2005. We are really working hard to address resource and 
operational constraints which can affect the efficiency of our 
case processing. But there are no indications of any impediment 
posed by any purported duplication of effort by our sister 
agencies, MSPB, FLRA and the OSC. Yet in spite of these gains, 
I am convinced that the EEO complaint process can be further 
scrutinized for greater efficiencies and enhanced performance.
    With respect to the draft bill, while I would welcome an 
independent review of these systems, I would propose another 
alternative. I would recommend that any commission studying 
this issue include independent, external experts who would 
bring to bear their extensive knowledge and expertise gained in 
a variety of settings, both public and private sectors. The 
National Academy of Public Administrators, the only 
congressionally chartered organization of its kind, would be 
ideally suited to examine this issue. Other appropriate 
consultative entities include Excellence in Government and the 
Partnership for Public Service. These reputable organizations 
not only apply higher-order thinking to these issues, but also 
remove any questions or doubts pertaining to potential 
conflicts of interest or perceived self-interest.
    Again, I thank you very, very much for the opportunity to 
comment on this draft bill, and greatly appreciate your 
leadership and support in this important aspect of our work. I 
will be happy to answer any questions that you might have.
    [The prepared statement of Ms. Dominguez follows:]

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    Mr. Porter. Thank you very much.
    Next we will have the Honorable Scott Bloch, Special 
Counsel, U.S. Office of Special Counsel. Welcome.

                    STATEMENT OF SCOTT BLOCH

    Mr. Bloch. Thank you, Mr. Chairman, ranking member, and 
members of the committee, and my distinguished colleagues on 
the panel. I thank you for the opportunity to come before you 
and to weigh in on this important issue of how do we best 
address complexities in the appeal system and possibly 
streamline it.
    One of the problems I think that we confront in our 
agencies is when we are not efficient, when we have too much 
complexity, too many Kafkaesque layers of review. Then people 
lose faith in the system, and the cynicism creeps in, where 
managers don't really take seriously the rights of employees, 
and employees don't feel that their rights are going to be 
observed, even if they file actions.
    I believe the committee has properly located the questions 
that are important in this issue. OSC itself is no stranger to 
these issues. Because we have thousands of complaints in a 
variety of enforcement areas that we receive every year, and we 
are a small agency, we realize the importance of utilizing 
proper procedures and of streamlining.
    In the past several years, my agency had a significant 
backlog of cases, as did many of my colleagues' agencies here. 
In the first year of my tenure, we cut by half or more the 
processing times for complaints in our screening unit. And we 
set up procedures to have cases that took 2 to 4 years on 
average through the whole process to take about a year.
    How did we do this? Well, we set up a special projects unit 
[SPU], to study problems and ways of streamlining and to 
utilize best practices. At the same time, we also brought in an 
outside management consulting firm that did a stem to stern 
analysis of all our procedures and all of the acts that we go 
through in order to process all of our complaints. And then 
they created these charts, which I called snake charts, that 
resembled what we used to call the Rube Goldberg puzzles 
because they were so complicated.
    But we eliminated the backlogs within 18 months and slashed 
our average processing time in our screening unit from 6 months 
down to under 40 days and the prosecution, as I said, to about 
a year. During this backlog reduction process, we more than 
doubled our percentage of positive cases that go for further 
investigation and prosecution to our what we call our IPD unit, 
and also doubled the number of whistleblower disclosures that 
go to agencies for investigation, while eliminating that 
backlog as well. The point being that one can streamline and at 
the same time not only protect employee rights at the level you 
have been doing, but actually improve the protections of 
employee rights. That is a challenge that I would issue to the 
committee, and to all of us if we are going to be involved in 
the process, that not only do we streamline, but we improve 
results for the work force.
    As you remember, Mr. Chairman, bipartisan staff teams sent 
by this committee exhaustively reviewed our backlog reduction 
procedures last year, along with yourself and Chairman Davis, 
had very kind words for our efforts and for our results for 
whistleblowers. I think this all bears on the issue at hand, 
whether to establish a commission to study the ability to 
improve the Federal employee grievance process. I think this is 
a very important project.
    A well regulated system to handle complaints and appeals 
must exist to protect the integrity of Government, because it 
ensures that employees receive due process, and it ultimately 
preserves the principles of the merit system. OSC will be proud 
to be a part of finding solutions.
    Now, one thing I wanted to point out to the committee is I 
prepared a chart, working with my excellent staff, and put it 
on one page, and I believe all the committee members and others 
on the panel have a copy of this, just how is it that an 
employee comes through our system and comes to MSPB, what types 
of cases and in what circumstances. And to show that yes, there 
is complexity, but there is some method to the madness. And 
also to demonstrate that I think there is some benefit to 
having visualized the process in its entirety.
    Now, this doesn't include the FLRA, this doesn't include 
all the EEOC's process or the agency's EEO process. But one 
could do that, and you could put it all on one chart and you 
could actually see where things are coming and where they are 
going, where the choke points are, where the bottlenecks are, 
where the problems might exist and what if you lifted this or 
moved this around. So that is one thing I think we can do that 
is concrete is to put together an understanding, both visually 
as well as written out, as to what constitutes the nature of 
the problem.
    But I want to caution the committee as well that we don't 
want to engage in draconian solutions that in any way remove 
employee rights. I think we want to be careful not to be so 
anxious to reform the system that we take away rights. I don't 
think we have to do that, I don't think that is going to be 
necessary. I think that remedies can be fashioned and new 
approaches and streamlining can be engaged in that are going to 
benefit agencies as well as employees, as well as all of the 
members here at the table.
    And with that, I will conclude and be happy to answer any 
questions you may have.
    [The prepared statement of Mr. Bloch follows:]

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    Mr. Porter. Thank you. We always like charts. [Laughter.]
    Actually, it does help follow the flow. I appreciate it. 
Thank you very much.
    Next we have Nancy Kichak, Associate Director, Strategic 
Human Resource Policy Division of OPM. Welcome. It is good to 
see you again.

                  STATEMENT OF NANCY H. KICHAK

    Ms. Kichak. Thank you.
    Mr. Chairman, Congressman Davis and members of the 
subcommittee, I appreciate the opportunity to represent the 
U.S. Office of Personnel Management and Director Linda Springer 
here today to discuss the idea of establishing a commission to 
study the challenges in the current Federal employee appeals 
process and the realm of possible solutions available to 
increase the efficiency and effectiveness of the process.
    While the dispute resolution and appeals process is only 
one aspect of OPM's interest in good government, it is an 
important one. Workplace disputes with employees, agency 
actions taken against employees and the dispute resolution 
processes that follow have implications that can impact the 
morale and effectiveness of individual employees and their 
agencies. Central to any discussion of consolidating and 
streamlining dispute resolution processes should be the goal of 
making the Federal work force more effective and efficient 
while retaining its fundamental underlying principle of merit.
    Federal employees work hard and expect to be treated like 
professionals. The vast majority of Federal employees will 
never be involved in the dispute resolution process. But they 
want to know that it is there and functioning effectively. They 
want to know that whatever dispute they bring to the process 
will be adjudicated in a timely, fair and impartial manner.
    The current system for adjudicating workplace disputes has 
been criticized as time-consuming, complex and producing 
inconsistent decisions. The proposed legislation would create a 
commission to study the current appeals processes and issue a 
report in 12 months with recommendations on a minimum of seven 
significant topics. We agree that this is an issue that 
deserves attention and we appreciate your leadership in 
exploring ways to address these longstanding criticisms and 
improve the efficiency and effectiveness of the process.
    We do have some concerns regarding the proposal to 
establish a commission to study and make recommendations. Our 
first concern involves the short period of time provided, 12 
months after the commission's first meeting, to study 4 broad 
areas and make recommendations on at least 7 distinct and 
substantial issues. We recommend that the period provided for 
the commission's work be extended to at least 18 months after 
the commission's first meeting.
    We also believe that if a commission is established, the 
enabling legislation should encourage the commission to consult 
with other Federal agencies and independent organizations, not 
reflected in the current draft bill, that have unique roles or 
expertise in the Federal employee appeals process.
    Finally, the proposal would provide the commission with a 
director and staff. It does not, however, specify how the 
director would be appointed. Since that official would 
presumably have a key role in the administration and the 
ultimate success of the commission, we suggest that the 
legislation clearly describe how that individual is to be 
selected and who has the authority to make the appointment. 
Perhaps a majority vote of the commission would be required.
    In sum, we agree there is room for improvement of the 
Federal employee appeals process. We appreciate your leadership 
in this area, and we look forward to continuing the dialog on 
this and other important personnel issues. Mr. Chairman, thank 
you for the opportunity to testify before you and the 
subcommittee today. I will be happy to answer any questions.
    [The prepared statement of Ms. Kichak follows:]

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    Mr. Porter. Thank you very much.
    Next we will have Scot Beckenbaugh, acting deputy director, 
Federal Mediation and Conciliation Service. Welcome.

               STATEMENT OF SCOT L. BECKENABAUGH

    Mr. Beckenbaugh. Thank you, Chairman Porter, Ranking Member 
Davis and members of the subcommittee.
    Before I begin, I would like the full written statement of 
my testimony to be submitted into the record at your pleasure.
    I am Scot Beckenbaugh, the acting deputy director of the 
Federal Mediation and Conciliation Service, and a career 
mediator with the agency. On behalf of the Service, I want to 
thank you for the opportunity to speak today regarding the 
proposal to establish the Federal Employees Appeals Commission.
    FMCS has reviewed the draft bill that has been circulated, 
and again, welcome the opportunity to make several points 
regarding the draft to the subcommittee. To do that, I first 
need to provide you with some background, as a small Federal 
agency, about what we do and how we do it. Our mediators 
provide conflict resolution services to our Nation's employers 
and their unionized employees with the goal of preventing or 
minimizing economically disruptive work stoppages and improving 
the labor-management relations throughout this country.
    Outside of the collective bargaining arena, FMCS provides 
employment mediation services, primarily in the Federal sector. 
These Federal cases arise from allegations of workplace 
discrimination, non-contract covered disciplinary actions, 
adverse action appeals and in some instances, Merit Systems 
Protection Board claims. In fiscal year 2005, we mediated 
approximately 1,200 employment disputes for Federal agencies.
    We were created by Congress as an independent and 
autonomous agency by the Labor Management Relations Act of 
1947. From its inception, a hallmark of this agency has been 
the strongly held value and belief that the agency's mission 
requires absolute neutrality, confidentiality and acceptability 
to the parties who participate in the mediation process. As I 
am sure all of you know, mediation is an entirely voluntary 
process that is done with the consent of the parties in a 
dispute. And that the success or failure of the mediation 
process is dependent upon the mediator's ability to gain 
credibility with the parties and to win their trust.
    Throughout our near 60 years of history, we have avoided 
taking part in legislative and public debates on labor-related 
matters of policy, out of concern that by doing so we would 
jeopardize our position as neutrals on collective bargaining 
issues. If we are perceived as having taken a position that is 
hostile to the interests of either labor or management on 
public policy issues, we risk losing the credibility and 
acceptability of those parties and thus our effectiveness as 
mediators in their disputes.
    As a neutral dispute resolution agency, we believe that we 
can be effective only so long as neither labor nor management 
has reason to believe that we favor or disfavor policies or 
procedures or proposed changes in those that are in their 
interest.
    In appearing here today, I respectfully ask for the 
subcommittee's understanding of our agency's very unique 
position as a mediation agency. We wish to support and assist 
in the work of the subcommittee as well as the commission, if 
it is established, but would respectfully request a 
modification of the current draft proposal.
    We do have substantial experience at FMCS in the design and 
development of dispute resolution systems. In fact, it is a 
part of what we do every day. If the proposed commission on 
appeals process is established, we believe our proper function 
would be to work with the commission in a technical assistance 
capacity. We can provide facilitation services for the 
commission, and if necessary, assist in hearings, fact-finding 
and debate. The commission itself can draw upon our knowledge 
of dispute resolution systems.
    However, I hope the members of the subcommittee do 
understand our strong belief that serving as a member of the 
commission and being called upon to make recommendations or to 
endorse whatever policy recommendations the commission might 
make would likely compromise our credibility as neutrals and 
potentially impinge on our ability to work effectively as 
neutral mediators.
    We thank you again for the opportunity to state our views 
on this proposal. I hope the subcommittee will take our 
comments into consideration as you proceed on this legislation 
on the proposed commission. And I would be honored to answer 
and take any questions you may have.
    Thank you.
    [The prepared statement of Mr. Beckenbaugh follows:]

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    Mr. Porter. Thank you very much.
    Congresswoman, do you have any statements you would like to 
make before questions?
    Ms. Norton. Mr. Chairman, I appreciate what you are trying 
to do. I do want to say for the record that the last hearing 
was enough to make everybody want to throw up their hands and 
give it to somebody other than us to try to figure this out.
    My own sense is that we have drawn in the whole herd here 
to deal with a problem that doesn't involve all of them, the 
mixed case problem involving MSPB and EEOC mainly. I can 
understand, though, Mr. Chairman, your desire to be, as long as 
one is going to deal comprehensively about it, I continue to 
believe that the up-front problem is far more important than 
the appeal problem. Many of these cases shouldn't get to 
appeal. We need to look at these agencies as to how they are 
funded. There is a $4 million cut in the EEOC. I don't care 
what they do, they are going to have problems dealing with 
cases of every kind.
    But even apart from funding, agencies which accept 
complaints are likely to become inefficient unless they are 
constantly streamlining from the front end. Then of course, we 
would know what we have to deal with in the appeal process and 
would probably have a simpler problem.
    Mr. Chairman, I must say that I do think that some group 
should be given this problem. But I would have a very hard time 
voting for a commission that had to go through the House and 
the Senate. I mean, normally, the Government should be simply 
putting people, if we want the insiders to do this, we should 
simply direct them to get together and in fact do it. I don't 
see why a statute would be necessary.
    If we wanted to set up a commission, you don't set up a 
commission, I say, with all due deference, Mr. Chairman, of 
insiders. You might set up an independent commission who then 
would have the cooperation of these agencies, so that you get 
some fresh eyes to look at this problem. What you would now 
get, it seems to me, are people ensconced in the problem, some 
of them wish they had never heard of the problem and will 
simply want to just get it over with. Others will have to deal 
with it.
    You will get uneven participation. I agree with you, sir, 
about the Federal Mediation Service. The last thing you want is 
your fingerprints on any of this. And it may be that we don't 
have the fingerprints of any of the agencies on it. There are 
going to be problems with whatever we come forward with.
    I felt I had to be here today, despite an urgent problem, 
because I am one of those who has to confess as guilty, it is 
the case that this system has been designed by the agencies and 
by Congress to preserve as many rights as possible. In the 
process of preserving as many rights as possible, we have 
balloxed up things for employees.
    Mr. Chairman, I just want to say right from the beginning, 
that as I see this commission, and you have tried to go down 
and just get kind of representatives of everybody, I have a 
real difficulty with the composition of the commission, with 
first of all the people who get all messed up are employees. So 
they get two representatives. That is token representation, it 
seems to me, because if there doesn't have to be some kind of 
consensus, then they aren't even going to matter, they just 
will come in and testify, because their ``votes'' won't matter. 
You have the SES and the managers, I have no idea where they 
come out on this, poor souls, because they have to handle much 
of this.
    And then you have the people at the top of the agency, 
their special assistants or whatever, who, Mr. Chairman, I must 
tell you, will have to learn this stuff first. Because they 
don't deal with these things. They are going to have to find 
somebody in their agency who is knowledgeable enough to sit at 
the table with others.
    So my own sense is that if we wanted to do something as 
fancy as a whole big commission, instead of having an order 
from the chairman to go and do what is necessary to fix this 
problem, then my own suggestion would be that it would be an 
independent commission, fresh eyes, perhaps, I don't know, 
academics, people who we pay to study their navels to come in 
and tell us what is best who have no dime in that dollar and 
might give us objective opinions that none of the agencies 
would have to fuss about, because they would know that they had 
not come from inside, and they would know that we hadn't given 
more attention or more weight to one agency rather than the 
other, because it might be more or less involved.
    Thank you very much, Mr. Chairman.
    Mr. Porter. Thank you. I think because of all the rains, we 
were looking for Noah's Ark. We have two of everybody, we could 
make sure we had everyone's interests addressed.
    Ms. Norton. Two of us, too.
    Mr. Porter. Yes, your point is well taken. Thank you.
    Mr. Cummings, anything you would like to add in a 
statement?
    Mr. Cummings. I will be very brief, Mr. Chairman.
    Just two questions. Ms. Dominguez, you noted in your 
testimony that the mixed cases, we are seeking in the mixed 
cases, we are seeking to streamline representing fewer than 3 
percent of the cases that come before EEOC, is that right?
    Ms. Dominguez. That is correct, yes, sir.
    Mr. Cummings. I think that is noteworthy. You further 
suggested that the problem lies with the Federal processing 
system. How would you recommend we reform it?
    Ms. Dominguez. Mr. Cummings, I believe, as I have stated 
both today and in my earlier testimony last November, that we 
really do need to look at the investigative phase at the 
earlier stages of the process, looking at how one takes in EEO 
complaints, and being able to dispose of those complaints that 
have no basis before they start getting into the system and 
really bottleneck the complaints that do have merit.
    So our whole interest here is to try to streamline the 
process, looking at it from the beginning, from the time an 
employee is concerned about certain practices or perceived 
discriminatory treatment that requires attention, and then take 
the process. At the moment, for example, the agency against 
which the complaint is filed investigates itself, then they may 
come to the Commission toward the tail-end of the process, then 
they may go back to the agency for a final agency decision, at 
which point it could come back to an appeal.
    So the process is extremely cumbersome. And really, I think 
the victim in this whole scheme is the complainant.
    Mr. Cummings. That is all I have, Mr. Chairman.
    Mr. Porter. Thank you.
    I think sometimes lost in this debate is the employee. I 
think someone mentioned that earlier in their opening 
statement.
    The bottom line is, the employee who has a legitimate 
complaint--what can we do to make sure that they can have 
proper help and assistance in a very reasonable, timely 
fashion? I think we each have our own areas of expertise, and 
as we were compiling ideas for this legislation, we were trying 
to address as many concerns in these different areas as 
possible.
    But the bottom line is, there are employees that need 
assistance and need it rapidly and need it efficiently so they 
can take care of their problem. I have heard lots of different 
suggestions from the panel regarding makeup. And if we were to 
do a commission approach, I have heard numerous folks suggest 
that maybe we should use an independent commission.
    I guess I would just like to get an idea, from the 
independent side, how many of you think we should just do an 
independent panel?
    [Show of hands.]
    Mr. Porter. One. OK. How many of our panel today thinks 
that we should have an independent commission? One person. I 
would like to now take a moment, I have heard all of you 
suggest some changes to the existing legislation as far as who 
you think should be on the board. Can we just take a moment, 
Mr. McPhie, what was your suggestion on the makeup of the 
board? Did you have one?
    Mr. McPhie. I thought the stakeholders who are present. If 
there are stakeholders who are not present, they should be 
present. When we were talking about this and a board member 
asked the question, well, what about the other employees who 
aren't represented by a group, a union or whatever. And we 
scratched our heads and we asked ourselves, who represents 
them? The fact is, they are not represented.
    Mr. Porter. The groups other than those listed, is what you 
are saying?
    Mr. McPhie. Well, I said those listed appear to be the 
stakeholders.
    Mr. Porter. The employee groups?
    Mr. McPhie. Yes. If you don't get the stakeholders 
involved, I submit that implementing anything is going to be 
tough.
    Mr. Porter. Mr. Tobey, what do you think?
    Mr. Tobey. Chairman Cabaniss' suggestion was to consider 
employing the services of an independent organization like the 
National Academy of Public Administration to lend credibility 
to the final work product of the commission.
    Mr. Porter. I think independent is your suggestion.
    Mr. Bloch.
    Mr. Bloch. Well, I backed into a solution when we were 
talking earlier during the break of a hybrid, of having both 
the stakeholders on the commission but also having the 
independent entity that would fashion and oversee the process. 
I think you need both.
    Mr. Porter. Ms. Kichak.
    Ms. Kichak. We think the process could be expanded to 
include other agencies that are involved in the appeals 
process, plus the Department of Justice. We do think 
independent organizations should be consulted. But we think 
that the agencies involved in the process, such as EEO and 
Merit Systems Protection Board are a vital part of any board 
that is going to reach a solution on that.
    Mr. Porter. Mr. Beckenbaugh.
    Mr. Beckenbaugh. Certainly as an organization that deals 
with dispute resolution process design, our only encouragement 
would be regardless of how you decide to proceed to include as 
broad a range of actual stakeholders, people who are going to 
be impacted by outcome with the idea of getting the greatest 
buy-in in terms of the outcome of the process. That is 
certainly when we facilitate regulatory negotiations as a 
neutral body in those processes or a public policy dialog, 
which is a service we provide. Those are certainly our 
recommendations pretty uniformly across the board in these 
kinds of scenarios.
    Mr. Porter. Personally, I like the Congresswoman's 
suggestion that I tell you to go fix it. [Laughter.]
    And you have 3 weeks.
    But I know that is not reasonable, at least the timeframe, 
not that we shouldn't come back with a suggestion. That is the 
end of my questions for the moment. Mr. Davis.
    Mr. Davis. My approach to problem solving has always been 
to try and learn as much about the problem as I possibly can. 
Then I know what I am trying to solve. I have heard 
speculation, I have heard possibilities, I have heard that we 
could do this, we would have to do that.
    Is there anybody who sees a definitive problem?
    Yes, we have had problems with this mic all afternoon. So 
we never know when it is working or what makes it work.
    But is there anyone who would delineate a definitive 
problem with the system and the process that we currently use? 
What is a problem? Is there something that we need more of? Is 
there someone definitively left out who needs to be in? Is 
there some approach that could be used or should be used that 
we are not using? Do we need more mediation? Do we need 
whatever? Is there anyone who would have a definitive approach?
    Ms. Dominguez. Yes, Congressman Davis, if I may, from an 
EEO perspective, there are numerous problems with the system 
the way it is currently designed. It takes too long to dispense 
justice. When someone comes in, alleging discrimination, and 
justice delayed, as we know, is justice denied. So the system 
takes too long. The system is very cumbersome. There are too 
many levels of review, too much going back and forth from the 
agency to an adjudicatory body back to the agency. The system 
is very cumbersome.
    And the system has also been criticized for the questions 
about conflicts of interest. When you have an agency, for 
example, investigating itself, no matter how much effort is 
taken to make sure that those processes are clean and removed 
from any conflict, there is still that perception of conflicts 
of interest.
    So from an EEO perspective, I can say without a doubt that 
we just have too many cases languishing and that it needs to be 
looked at. We need an overhaul and we need to start from the 
beginning phase of the process.
    Mr. Davis. In my opening comments, I mentioned the fact 
that there seemed to be not enough. I have some concerns 
relative to the amount of union representation. Do we feel that 
there is enough stakeholder spread or that there is the 
stakeholder balance that we need to have in order to have 
greater assurance of a level of equity in decisionmaking?
    Mr. McPhie. I testified I think you do. AFGE and NTEU are 
two very big, very important unions. They are at the table. I 
hesitate to come forward and tell you I know the answer, 
because I think if I knew the answer, why not just tell it to 
you and we could all go home and we wouldn't need a commission. 
I think the areas that the committee chose to study are good 
areas. I think embedded in those areas are problems that we 
ought to address. If you focus on the expectation of the 
employee filing a complaint, seems to me that person deserves 
an answer, up or down, within a reasonable period of time.
    To the extent that does not happen, we have to put our 
heads together and come up with a system that preserves the 
opportunity to get a fair shake of that complaint. But also, is 
that person, the resolution of that complaint, quicker than we 
do it now?
    Mr. Davis. So you are saying that the structure is very 
important, because otherwise, I mean, everybody can have a 
different opinion or a different point of view, or can see 
things differently. But if the structure is correct, then in 
all likelihood, the appropriateness of the solution will be 
balanced?
    Mr. McPhie. Yes, I think part of it is a systems analysis. 
We know we have issues with employees, we have employees, we 
have employers, we have this job to do. We know we have issues, 
we know people sometimes complain about different things. It 
seems to me we have to devise a system that accommodates a 
resolution of those issues. And we have to ensure that whatever 
we do, peoples rights are protected. They have a right to a 
hearing, for example. People forget, before the board, they get 
a due process hearing, which is contained in the due process 
clause of the constitution. These things are important.
    So whatever we do, we can't forget that. The question is, 
how do we do it efficiently?
    Mr. Davis. Thank you very much, Mr. Chairman.
    Mr. Porter. Congresswoman Norton.
    Ms. Norton. Let's try to take this vexing problem down to 
its size. Mr. McPhie I guess would be the person to ask. What 
percentage of cases are mixed cases in the system in the first 
place?
    Mr. McPhie. Well, I wouldn't question what Chair Dominguez 
says.
    Mr. Porter. What is that number?
    Ms. Dominguez. Three percent.
    Mr. McPhie. She said 3 percent.
    Ms. Norton. Are we talking about 3 percent of all the 
cases?
    Mr. McPhie. But don't forget, there are real people behind 
those cases.
    Ms. Norton. Well, there are real people----
    Mr. McPhie. Every one of those persons deserves, in my 
opinion, a response to their case. That case is important to 
them. Three percent of a sizable number means there are a lot 
of people out there in that 3 percent. I chose to think of it 
as a people issue, and not necessarily only as a numbers issue.
    Ms. Norton. Well, the people have thought to think of it as 
a numbers issue, though, because they can't get through the 
system for a very long time. The reason I concentrate on how 
many cases we are talking about is, we are talking about a 
whole big commission to deal with 3 percent of the cases. And I 
am just looking for a way to deal with the chairman's concern 
that might be more efficient and economical.
    Let me ask this question. Mr. Tobey, do you know anything 
about mixed cases? I am not asking this to embarrass you. In 
the course of your professional work, have you had occasion to 
learn much about mixed cases?
    Mr. Tobey. That kind of work has not come in my direction 
at the FLRA too much. We have a somewhat different situation 
with regard to our relationship to the other agencies. There 
might be situations which give rise to disputes that would be 
heard in a different forum, but there is not the same sort of a 
mixed case situation.
    Ms. Norton. If we are dealing primarily with mixed cases, 
there would be a limited contribution you would have to make if 
you were on this commission, I take it?
    Mr. Tobey. That is correct.
    Ms. Norton. How about you, Ms. Kichak? Do you know much 
about mixed cases in your work at the Strategic Human Resource 
Policy Division of the OPM?
    Ms. Kichak. Yes. One thing I know is that what has brought 
us here today is not just mixed cases. Even though mixed cases 
are very complex, the process for resolving disputes is not 
timely even for cases that are not mixed cases. If the only 
problem with employee disputes was mixed cases, then you are 
right, you wouldn't need this many folks. But many of the 
problems previously described at EEO, I shouldn't say problems, 
but the time that certain cases take to reach resolution are 
not mixed cases. There is a timing problem in other kinds of 
cases also.
    Ms. Norton. So you think the commission is necessary to 
deal with slow processing of cases throughout the Federal 
Government?
    Ms. Kichak. That is correct.
    Ms. Norton. Do any of you think that the best way to deal 
with that problem would be to create a Federal appeals court? 
Does anybody there want to raise a hand for a Federal appeals 
court? All right, I see by process of elimination we know one 
thing that won't be in the final recommendations if this is to 
be the group.
    Do any of you yourselves feel that if this task were given 
to you as Federal agencies that you could solve the problem?
    Ms. Kichak. I will say we at OPM do not feel we could solve 
this problem alone.
    Ms. Norton. Then I don't know why you ought to be on the 
commission. The commission consists of nothing except you all. 
Now, if you don't think you can solve the problem if we gave it 
to you as a group, then why should we give it to you as a 
commission?
    Mr. McPhie. I am not certain that I agree that the problem 
cannot be solved. I think it can be solved.
    Ms. Norton. I am asking you, if we were to say to this 
group, and here I am leaving out the chairman's time limit, go, 
sit together for----
    Mr. Porter. Ms. Norton, you are sounding like a Republican, 
so keep talking, you are doing fine. [Laughter.]
    Ms. Norton. Go, and a year from now, report back to us on 
your solution to this problem. Do you feel that you could do 
that?
    Mr. McPhie. I think it is a difficult task, but it can be 
done.
    Ms. Norton. I am asking you if you feel this group could do 
it, sir. We are not asking if this is a task that was beyond 
any human being to do. I am asking whether or not this group as 
a group, if they were charged to do it, as a group, could do 
it.
    Mr. McPhie. Well, since the group hasn't met as a group, it 
is very difficult to predict what is going to happen.
    Ms. Norton. So you don't know if the group could do it or 
not?
    Mr. McPhie. I think with the expertise, with a true 
willingness to solve it, and a true willingness to report back, 
and of course it is the will of the Congress, they can take the 
recommendations and do whatever the Congress wants to do with 
it. But I think you will get from this group an honest 
evaluation and suggestion.
    Ms. Kichak. Excuse me. If you asked me could OPM do it 
alone----
    Ms. Norton. No, that is not my question.
    Ms. Kichak. Well, I am sorry, but I misunderstood your 
question.
    Ms. Norton. Could you, this group, the assembled group at 
the table, could you do it if you were charged to do it within 
a year?
    Ms. Kichak. I think the assembled group at this table could 
make suggestions to improve the process substantially. 
Personally, we recommended more than a year, but I think within 
a reasonable amount of time, this group collectively could make 
substantial recommendations, recommendations that would improve 
the process.
    Ms. Norton. Ms. Dominguez.
    Ms. Dominguez. I would say that one of the alternatives 
that I recommended would be to have an independent group with 
input from all the stakeholders here. I don't think you can do 
it by yourself. But I do think that we are so enmeshed in our 
day to day issues, and all of us here are working very hard at 
management reforms, and to do the things that we can do within 
the constraints of the laws and the regulations that we 
administer.
    So I think that we certainly can provide input. But I would 
like to see it led by an independent body that would then 
involve all of us and also do some independent evaluations of 
other good practices and benchmarks that exist.
    Ms. Norton. Yes, I kind of heard, I appreciate your 
comment, Commissioner Dominguez, because I kind of heard in an 
earlier response a concern at the table that if you weren't 
doing it somehow your input would not be sufficient in this 
process, and one really wonders about that.
    Let me ask you this. Does the assembled group think that a 
group like this would be helped if there were some independent 
members added to the group?
    Ms. Kichak. Yes.
    Ms. Norton. Anybody disagree with that?
    Mr. McPhie. In fact, I think I observed a little bit 
earlier that I don't see it as an either-or proposition. I 
think the involvement of groups like NAPA is very good, there 
is no question about that. They have expertise, Max Dyer's 
group, and so on. There is no question.
    But I don't know why it is one or the other. I believe if 
the stakeholders can agree, it doesn't matter what the experts 
say, the recommendations are not going to be consensual, and 
that is going to be the trick.
    Ms. Norton. Do you think, in light of the fact that people 
are ensconced in their own agency, have no reason to want to 
figure out how these, have had no reason except as they may 
have arisen anecdotally, to want to figure out how your agency 
does something, do you think the involvement of so many 
agencies with different degrees of concern and interest would 
affect the outcome? Some agencies are more heavily implicated 
than others. Some will have to speak far more often.
    In light of that, do you think that a consensus process, 
rather than a vote by some kind of majority, if you had some 
kind of process involving you it would be better?
    Mr. McPhie. I think we should strive real hard to give you 
all a consensus position. I don't think this whole effort is 
best served by having minority reports and majority reports and 
sub-minority reports and so on. The whole purpose is to try to 
get stakeholders to identify ways in which they can improve the 
systems they administer, period.
    So the goal is consensus. It has to be.
    Ms. Norton. Well, thank you, Mr. McPhie. I must say that 
anything other than that would simply transfer the burden to a 
partisan group called the Congress of the United States. So 
without a consensus, which would mean that all of you have had 
to compromise to some extent, which means recognizing that the 
other agency has to be considered, without that kind of 
process, one wonders whether you would be making more problems 
than you would solve. I appreciate your views.
    Mr. Porter. Mr. Van Hollen, it is a good thing you got 
here, because we are going to put you in charge of a committee. 
[Laughter.]
    Thank you for being here. We appreciate it.
    Mr. Van Hollen. Let me just first of all apologize for 
being late. I serve on another subcommittee of the Government 
Reform Committee, and there is a hearing ongoing right now. I 
am afraid I am going to have to get back to that. But I just 
wanted to come by and thank everyone on this panel for this 
testimony and the people who are coming on the next panel. I do 
look forward to reading the testimony and trying to weigh the 
different issues. I was listening to my colleague here talking 
about some of the very important questions that have been 
raised, and I look forward to trying to get the answers from 
all of you on some of the questions that she and others have 
raised.
    Again, I apologize for being late, and I apologize for 
having to leave early. We have been unfortunately double 
booking some of these hearings on the same Government Reform 
Committee and trying to jump back and forth. Thank you, Mr. 
Chairman.
    Mr. Porter. Thank you very much. We appreciate your 
schedule and the challenges. Thank you for being here.
    I would like to thank the panel. We appreciate your input. 
Thank you.
    And we will have panel two. We will be vacating the room at 
approximately 5 o'clock. We appreciate your patience.
    Next on our panel will be Mr. William Bransford, the 
general counsel, Senior Executives Association; Ms. Colleen 
Kelley, national president of the National Treasury Employees 
Union; Mr. John Gage, national president of the American 
Federal of Government Employees, AFL-CIO; Ms. Karen Heiser, 
vice president of FMA Chapter 88, Federal Managers Association.
    Welcome and thank you for your patience. I know that you 
have been very patient with us in the past, and we appreciate 
it again today. Thank you.
    Mr. Bransford, welcome.

  STATEMENTS OF WILLIAM L. BRANSFORD, GENERAL COUNSEL, SENIOR 
EXECUTIVES ASSOCIATION; COLLEEN M. KELLEY, NATIONAL PRESIDENT, 
    NATIONAL TREASURY EMPLOYEES UNION; JOHN GAGE, NATIONAL 
  PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-
    CIO; AND KAREN HEISER, VICE PRESIDENT, FEDERAL MANAGERS 
                     ASSOCIATION CHAPTER 88

               STATEMENT OF WILLIAM L. BRANSFORD

    Mr. Bransford. Thank you, Mr. Chairman, members of the 
subcommittee.
    I appreciate your invitation to testify on behalf of the 
Senior Executives Association about establishing a commission 
to recommend improvements for the Federal employee appeals 
process. I testified before this subcommittee 7 months ago on 
behalf of SEA regarding its proposal for a Federal employee 
appeals court, a central place to seek redress for legitimate 
Federal employee workplace complaints. As general counsel of 
SEA, I was pleased to put forward our proposal as one idea to 
fix a longstanding problem.
    The impetus for SEA's proposal is the broken state of the 
Federal employee appeal and complaint system. The hearing last 
November revealed widespread consensus among the stakeholders 
in the system that significant problems exist with the current 
Federal employee system, which must be fixed to ensure fair and 
timely treatment for both the employee who files an appeal or 
complaint and those who are accused of wrongdoing.
    SEA believes that reform of this broken system must occur 
and applauds this subcommittee for its work to develop the 
concept of this commission. For many years, Federal managers 
and other employees have labored under a complaints mechanism 
that allows employees numerous bites of the apple, a multitude 
of different paths to pursue and the ability to tie up 
management for years with what are often frivolous complaints. 
Some Federal employees abuse the complaints and appeals process 
with impunity, slowing down the system for those cases that 
truly need consideration.
    The current system has also made the Federal manager an 
easy and convenient target. With pressure from both higher 
level management and subordinates, the Federal manager is often 
perplexed about how and when to do the right thing. While 
Congress has occasionally grappled with this issue, we now have 
an opportunity to develop a consensus on improvements from the 
stakeholders, employees, managers and agencies. We all 
acknowledge that problems exist. The proposed legislation will 
provide a framework for real discussion on change, which will 
lead to real solutions.
    Having the key stakeholders in the Federal employee appeal 
and complaint system around one table to study these issues 
will provide a healthy forum for resolving the myriad problems 
being discussed today. SEA is pleased that the MSPB will use 
its leadership to chair this proposed commission and SEA is 
hopeful the commission to study the employee appeals process 
will soon become a reality.
    While SEA has proposed a central place to seek redress for 
legitimate Federal employee workplace complaints, we believe 
there is more than one path to appropriate reform, and we look 
forward to working with other stakeholders to solve this vexing 
problem. The question are: what needs to be changed and what 
needs to be uniformly incorporated across the system? Several 
facts are clear already and provide a good starting point.
    The MSPB has performed well with employee appeals and we 
believe it provides a model for reform of the system. The board 
has rapidly processed cases and is generally supportive of 
reasonable management efforts to discipline problem employees 
and to respond to poor performance while at the same time 
preventing abuses of the merit system.
    Contrast the MSPB's performance with what happens in a 
typical EEO case. According to the EEOC's 2005 report, which 
shows improvement over previous years, cases still take too 
long to resolve. EEO professionals often candidly admit that 
employees sometimes mis-use the EEO process to raise complaints 
of job dissatisfaction when they lack evidence of 
discrimination because it is perceived as the only forum 
available in which a matter can be raised effectively and heard 
outside the agency. This is reflected in the fact that only 1.5 
percent of the total cases filed result in findings of 
discrimination.
    One reason the EEO process is so clogged is that a very 
high percentage of those 23,153 complaints are fully 
investigated, even though it is apparent to any informed 
observer that the complaint lacks merit. Why are blatantly 
frivolous complaints so meticulously investigated? Federal 
agencies are required to investigate themselves when an EEO 
complaint is filed, which is an obvious conflict of interest. 
To address concerns about a process that has inherent conflicts 
of interest, the Federal sector EEO system responds by fully 
investigating and processing every EEO complaint, even though 
it is obvious that it lacks merit from the outset.
    And of course, some complaints do have merit. There is 
nothing more frustrating for a Federal employee than to prevail 
in an EEO complaint many years after it has been filed, and 
then to realize that justice cannot be attained because 
circumstances have changed in the lengthy time span during 
which the complaint was processed. Similarly, for those 
managers in the approximately 17,000 EEO complaints filed 
annually that lack merit, the burden of managing those 
subordinate employees over the long period of the complaint 
life span is unreasonable and should be relieved.
    Thank you for the opportunity to testify. We look forward 
to working with you and your staff and this proposed commission 
to find common sense solutions to these complex problems.
    [The prepared statement of Mr. Bransford follows:]

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    Mr. Porter. Thank you. We appreciate it, Mr. Bransford.
    Ms. Kelley, welcome.

                 STATEMENT OF COLLEEN M. KELLEY

    Ms. Kelley. Thank you, Chairman Porter, Congresswoman 
Norton. It is a pleasure to be here on behalf of NTEU and the 
150,000 Federal employees who we represent in 30 agencies.
    NTEU has worked for over 65 years to improve and defend 
Federal employee protections, rights and benefits. We take very 
seriously the proper adjudication of the statutory and 
contractual rights of our members, and any acts of 
discrimination or unfair treatment toward them.
    Last year, the subcommittee considered a proposal by SEA 
for the establishment of a new court to be known as the Federal 
employee appeals court, intended to combine all appeal 
processes for Federal employees into one forum. NTEU strongly 
objected to this proposal. We have provided a detailed 
explanation as to the reasons for our objections to the 
subcommittee.
    NTEU agrees that complaints should be resolved quickly 
without compromising justice or fairness. We feel, however, 
that the proposed Federal employee appeals court is misguided. 
NTEU also believes that the proposal for a commission to 
recommend legislative or structural changes to the appeals 
process misses the real issue.
    The proposed legislation asks the commission to review 
consolidation of operations or agencies. We do not believe that 
replacing or consolidating agencies with specialized expertise 
with a new entity that will have no particular expertise will 
improve the appeals processes. The jurisdictions of the various 
affected agencies cover complex subject matters and the career 
staff has built up significant expertise.
    The proposed legislation also charges that the commission 
has two other duties: to look at organizational, procedural and 
structural changes; and to look for ways to reduce the time for 
appeals. It appears as though a concern with the processing of 
equal employment opportunity issues is the main force driving 
the desire for change in the complaint and appeal process.
    The answer is not study commissions or legal structural 
changes. The answer is adequate funding and staffing at the 
EEOC and at other agencies, so that they have the resources and 
the personnel to do their job in a fair and a timely process. 
As we sit here today and as we have heard referenced earlier, 
the administration is making moves to cut the budget of the 
EEOC by $4 million. The EEOC is understaffed. My understanding 
it has been under a hiring freeze since 2001, and the agency 
projects that its backlog of cases will continue to grow again 
next year, as it did from the past year.
    It is totally understandable that neither employees nor 
managers are pleased when cases linger on for ever-increasing 
lengths of time. Congress should not be waiting for a 
commission study to make a report when Congress has the 
authority to correct the problem this year. The EEOC budget 
should not be cut by $4 million, but should be increased, so 
that additional staff may be hired. EEOC funding should be at 
such a level that its backlog of cases not only does not 
increase, but that it is actually reduced.
    It seems that this study commission is being charged with 
fixing a car when the only problem is that the gas tank needs 
to be filled. NTEU's position is that these agencies should 
first be given the resources they need to do their job. Only 
then, if problems still exist, should we explore structural, 
legislative and procedural changes.
    And finally, Mr. Chairman, establishing a commission to 
recommend changes in the Federal employees processes is relay 
an unnecessary waste of taxpayer money. NTEU and other 
interested parties have given their views on the SEA proposal, 
and I am sure that we will be happy to work with the committee 
on any other alternatives that improve the process without 
diminishing any party's rights, such as winning adequate 
funding for the agencies that need it.
    I would also just add that the comments made about 
employees' mis-use of the existing systems, you could make a 
long list of many things that are abused, including many 
managers and executives who may abuse the authority they have 
when dealing with employees. I don't see anyone taking away the 
authority that managers and executives have when they mis-use 
it, so I don't see that employee rights should be taken away 
from them under the guise of a commission to streamline a 
process when the known problems with the process are not being 
dealt with.
    Thank you, and I look forward to any questions you may 
have.
    [The prepared statement of Ms. Kelley follows:]

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    Mr. Porter. Colleen, I like you, because you always tell me 
what you think. I appreciate that. [Laughter.]
    Thank you very much.
    Mr. Gage.

                     STATEMENT OF JOHN GAGE

    Mr. Gage. Thank you, Mr. Chairman.
    On behalf of the more than 600,000 employees represented by 
AFGE, I want to thank you for this opportunity to present our 
views on the issue of creating a commission to study 
streamlining employee appeals.
    The proposed commission would be charged with studying and 
proposing revisions to the current Federal employees grievance 
and appeals system, having four main duties: one, identifying 
overlaps between the jurisdiction of these four agencies; 
comparing the average processing times of the various types of 
cases in agencies; identifying impediments to the fair and 
timely investigation of adjudication of such cases; and 
finally, presenting recommendations for improvements in seven 
specific areas, to include possible consolidation of agencies 
and/or organizational, procedural or other changes in order to 
improve the efficiency, effectiveness and fairness of their 
appeal system.
    AFGE cannot support the commission as proposed. It is too 
large, has too broad a mandate, would take too long to 
deliberate, and would lack any real credibility because its 
makeup is too heavily weighted in favor of political 
appointees. Despite our opposition to the commission as 
currently proposed, we appreciate the subcommittee's expressed 
willingness to act in this area and certainly believe there is 
room for improvement in three of the areas identified in the 
bill. These are: adequately funding the EEOC to reduce its case 
backlogs, both Federal sector and private sector; improving the 
EEOC investigation process, which presently takes much too long 
and involves a built-in conflict of interest; and last, 
reforming appeals of mixed cases, or those cases which involve 
two elements, adverse action along with discrimination or other 
prohibited personnel practices.
    I will discuss each of these problems briefly and discuss 
ways to fix them which do not require additional study and 
which would be cheaper, easier, more fair and better for all 
involved. If a commission is to be established, its charge 
should be limited to these three areas. First, the EEOC must be 
adequately funded in order to reduce its huge backlogs, both in 
the Federal sector cases processing and Federal sector appeals, 
as well as in the private sector. Since 2001, budget cuts and 
hiring freezes have crippled the agency, increasing backlogs 
numbering in the tens of thousands. Despite this growing 
backlog, the agency has already lost 20 percent of its work 
force, and has been unable to replace experienced 
investigators, lawyers, paralegal and clerical staff because of 
a hiring freeze in effect since 2001.
    The remedy for the backlog is simple: provide the EEOC with 
adequate funding so they can hire the additional staff needed 
to process its Federal sector discrimination cases in a timely 
manner. Any available funding should be put directly into the 
EEOC's budget and earmarked for reducing case backlogs.
    AFGE would also support a proposal to remove the authority 
to investigate EEOC charges from the employing agencies, and 
transfer this function to the EEOC itself. However, Congress 
would have to allocate substantial funding to go along with 
this substantial workload, so that the EEOC could hire adequate 
staff or arrange for details or transfers of EEO investigators 
from the various agencies to a new central office or regional 
office.
    The goal of the transition would be to complete all 
investigations within the statutory mandate of 180 days. Such a 
reform could significantly improve both the quality, timeliness 
and the perceived credibility of the Federal employee 
investigative process, and could lead to better decisionmaking 
and fewer hearings in the long run. However, the already 
overburdened EEOC should not be reassigned this responsibility 
without ensuring adequate funding. That would be worse than the 
status quo.
    The most pressing issue to reform is the cumbersome and 
duplicative appeal process for mixed cases, which involves two 
separate causes of action, an adverse action coupled with 
allegations of discrimination or other prohibited personnel 
practices. Under current rules, such cases could be heard in at 
least two separate administrative agencies and two separate 
courts. The solution to the problem identified in the 
Government employee appeals process is not to merge the highly 
dissimilar MSPB, EEOC, FLRA and OSC into a single super-agency. 
Instead, the real challenge is to cut down on the number of 
multiple forums that employees can or in some cases must use 
when attempting to process a single appeal to finality, 
especially the dreaded mixed case.
    The solution to the problem of extraordinary delays and 
procedural confusion and processing of mixed cases is to 
simplify and streamline the Federal appeals process by 
permitting employees to choose a single forum to decide all 
issues in accordance with established law. Law and regulation 
could be revised to eliminate any layer of cross-appeal among 
arbitration decisions, the EEOC and/or the MSPB, no matter 
where the case arose. Similarly, employees who elect to file 
cases with MSPB or EEOC in the first instance should expect 
finality in their administrative appeals while retaining the 
right to seek de novo judicial review in appropriate cases.
    Mr. Chairman, let me conclude my remarks by emphasizing 
that the committee needs to redirect its streamlining efforts, 
one, away from any proposal to create a commission, and two, 
toward the heart of the confusion: the backlogs at the EEOC and 
the overlapping jurisdiction of the MSPB and EEOC, where simple 
discrimination cases can languish for years and where employees 
are forced to file numerous appeals of the same case. Once an 
employee and an agency get wrapped up in a mixed case, it may 
be years before they see the light of day.
    That concludes my statement, I will be happy to answer any 
questions.
    [The prepared statement of Mr. Gage follows:]

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    Mr. Porter. Thank you, John. You are pretty mellow today.
    Mr. Gage. Yes, I am. [Laughter.]
    I just got back from Alaska. It is mellow up there.
    Mr. Porter. We will talk about that. Thank you for your 
comments.
    Ms. Heiser.

                   STATEMENT OF KAREN HEISER

    Ms. Heiser. Chairman Porter, Ranking Member Davis, on 
behalf of the nearly 200,000 managers and supervisors in the 
Federal Government whose interests are represented by the 
Federal Managers Association, allow me to thank you for the 
opportunity to present our perspective on the need for reforms 
in the employee appeals process.
    We are pleased to comment on the draft legislation to 
establish a commission to review jurisdictional and procedural 
issues and make recommendations to Congress for improvement. 
The established systems for employees to address grievances 
against a manager or agency are inconsistent in their ability 
to respond to a complaint in a timely manner and to weed out 
frivolous claims. Employees have a broad range of avenues 
available to them. They can present appeals to multiple 
independent organizations and even send letters to the 
congressional representatives. We support the mission of all 
these agencies and respect them as independent bodies, 
established to help maintain the integrity of the Federal work 
force.
    However, at the hearing before this subcommittee on 
November 9, 2005, it became clear there was a disparity in the 
efficiency and effectiveness of these agencies. The point was 
made that managers and supervisors must weigh as equal burdens 
the choice to make the right decision and the likelihood of 
going through the process of appeals and potential retaliation. 
As was pointed out in the testimony of the Senior Executives 
Association, employees can file claims without merit and 
maneuver through the appeals processes for years. In the 
meantime, managers are passed over for career-advancing 
opportunities in the face of mostly un-meritorious claims.
    More importantly, this same resolution limbo allows claims 
of merit to linger for years as an employee works with a boss 
who has taken unwarranted action against them. In either 
scenario, entire work groups suffer in this dysfunctional work 
environment.
    Under the current EEOC process, an employee can file a 
claim with little or no substantiation. Then, due to the 
enormous volume of cases, EEOC often puts pressure on 
settlement to avoid adding to the backlog. According to its 
2005 annual report, the EEOC seems to be moving in the right 
direction to improve the timeliness of investigations, hearing 
receipts and merit decisions. We commend the commission for 
their efforts to improve the process, address the backlog and 
reduce the overall time line for responses.
    However, much still needs to be done. Of the 22,974 cases 
closed in 2005, only 345 were found to have discrimination 
involved, as per the EEOC annual report. That means 1.5 percent 
of the cases were found to be meritorious in their claims of 
wrongful action, which is slightly more than the 1.3 percent of 
cases in 2004 that were found to have the same statistics.
    The other independent agencies do not seem to have the same 
backlog or process problems, but remain in need of review. The 
Merit Systems Protection Board is closer to the mark in their 
timeliness of processing claims and percentage of decisions 
rendered. On average, the board renders decisions within 100 
days of filing and supports the actions of managers and 
supervisors 80 percent of the time. In practice, however, MSPB 
encourages settlement over full processing of the claim, which 
somewhat invalidates these results.
    It is clear to us that the entire appeals process offers 
too many options to employees looking to file frivolous claims 
against managers trying to address poor conduct, under-
performance or other problems. The EEOC process must be 
streamlined and more stringent standards must be placed on 
claims filed by employees. We also believe that managers' 
rights need to be taken into consideration due to the excessive 
number of frivolous claims determined each year by EEOC 
decisions.
    The legislation proposed by you, Chairman Porter, to 
establish a commission to review the Federal employee appeals 
process presents a thoughtful and deliberate balance in the 
effort to address these issues by first identifying the current 
state. This will allow agency employee representatives to sit 
down in an open dialog and discuss reform proposals in the 
light of a thorough assessment of all the Federal employee 
appeals outlets and their missions. The proposal of a 
commission to study these issues takes us a step forward in 
addressing the failures of the Federal employee appeals process 
and opens the door to understanding proper solutions to remedy 
the problem.
    For too long, managers, supervisors and employees have 
suffered at the hands of lengthy processes and broken systems, 
disconnected options and eventually unsatisfactory decisions. 
For the manager working with an employee who is a frequent 
filer or an employee working with a discriminatory supervisor, 
resolution must come at a quicker pace.
    We support the efforts of Chairman Porter and believe this 
legislation would take us closer to fixing the broken system 
that currently exists in the Federal employee appeals process, 
and we are honored to be included in this hearing and the 
proposed legislation.
    If I could offer a couple of comments that are not in my 
written statement, but in response to issues that came up 
during the first panel, there was discussion over commission 
membership, independent observers or independent oversight 
authority and the question was put to the last panelist whether 
they felt they could solve this problem. I would put to you two 
thoughts for consideration regarding any type of independence. 
The involvement of organizations like the Center for 
Excellence, etc., as resources is certainly valuable. As far as 
any type of independent oversight, we feel GAO would be the 
most appropriate body.
    However, in following Mr. Bloch's thoughts, my home base 
has been engaging in a very aggressive continuous improvement 
campaign the last few years involving this same type of thing 
where we have disconnected bodies of people who contribute to a 
problem. And I would put to you that this process has to be 
facilitated by someone from outside the Government who is an 
expert--top-notch at resolving these problems. The idea of 
charting isn't necessarily Power Point presentations, it is 
called value stream mapping, so that each organization has a 
golden opportunity here to improve what they are responsible 
for, and together perhaps improve the entire process of 
resolving employee disputes and issues.
    There is a lot of good material out there, it is 
organizational quality improvement stuff, and I think it is 
right on point with your efforts. Congressman Davis, you had 
asked if anyone was not represented. I have some food for 
thought on that. Due to no lack of effort on the part of my 
fellow panelists, Mr. Gage and Ms. Kelley and their peers in 
the labor community, there are a lot of unrepresented, non-
bargaining unit Federal employees that don't have an outlet in 
this voice.
    And I don't like to offer problems without suggested 
solutions. The best one I could come up with right now is 
perhaps a detailed posting by OPM for 1-year assignments to 
this commission for your thoughts.
    Thank you very much. I am happy to answer any questions you 
have.
    [The prepared statement of Ms. Heiser follows:]

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    Mr. Porter. Thank you very much.
    You mentioned 22,000 cases and 300 and some. This is really 
a question for everyone on the panel today. Of the 22,000, a 
figure for the comment, how many of those are filed where they 
actually know that they are not a legitimate complaint, would 
you guess?
    Mr. Gage. I am really glad you asked that, because I hear 
this frivolous complaint issue. Here is what this is about. And 
a lot of it is right up front, due to timeframes. Someone will 
come into the union office, had my leave denied. OK. We have 2 
more days, you have 15 days to file union grievance, maybe this 
happened 2 weeks ago. But I think they didn't do it because I 
don't think they like me because I am a woman or I am a Black 
person or whatever.
    So now, we have a discrimination complaint. Or we have an 
allegation. Perhaps the union steward will put that into a 
counselor--that is the first step--the 45 day counselor. Now, 
after the counselor's report, it could be that this is not an 
EEO case. This should have been handled under the contract and 
under the grievance procedure, but you can't get back to the 
grievance procedure, because the timeframe is gone.
    Mr. Porter. Yes, we have finished that 45 days.
    Mr. Gage. Yes. And I think a lot of these cases that are 
termed frivolous are not EEO cases, but they are legitimate 
cases that should be handled.
    Mr. Porter. Going on the wrong path.
    Mr. Gage. It is going on the wrong path. Now, we have 
negotiated some things where we would apply the grievance 
timeframe after the 45 day of the counselor. So I don't think 
it is in anybody's interest that you have a case in the wrong 
forum. Management has to go and investigate the thing and do 
all that, when right up front, that matter can be taken care 
of, if there was some time for a little investigation just to 
make sure the person was in the right forum. And I will bet you 
that is half of your frivolous cases.
    Mr. Porter. John, let me go back to that a second. So 
somebody walks in with a problem. Explain to me how it is 
assigned.
    Mr. Gage. Well, the steward has to advise the person of 
their rights. You have 15 days to file a grievance, 2 days if 
it is a leave issue. But then the person might say something 
that sounds discriminatory. Now, the steward then is really 
caught between a rock and a hard place about giving the person 
proper rights. And many times, they will throw the thing, 
saying, go to a counselor, or see if it is EEO, I can't tell 
right now, but all I do know is I have 1 day to decide.
    Mr. Porter. So they may err on the side of safety to put it 
into the system?
    Mr. Gage. Exactly. And I think a lot of employees do that, 
too.
    Ms. Heiser. I think that brings up a huge problem, or a 
huge, I shouldn't say problem, but an issue with any resolution 
of issues like this, is that there is really no baseline data. 
This EEO report, which happens to be the only one I have, is 
filled with huge numbers. And huge numbers lead to huge 
questions. I don't know that there is any baseline data as to 
exactly where all these cases do come from and if there are any 
common threads in them. I think that would have to be done as 
any type of an improvement process these folks engage in.
    Ms. Kelley. I would also suggest, Mr. Chairman, that you 
really have to look behind each case to see what drove the 
conclusion. Many of them are settled. There is a lot of push to 
settle. And there is an interest in both parties, everyone 
involved, to bring it to a conclusion. I can tell you from the 
issues that NTEU deals with in this forum that our goal is to 
get this resolved sooner rather than later for everyone 
involved, so that it is not just hanging out there.
    I don't think there is really a solid way to measure what 
is frivolous. There are easy allegations to make, but I have 
never seen data that first defines what that means, what it 
means to an individual, and then second, what the criteria are 
that could even be measured against, rather than just kind of a 
general framing that really sets a bad tone and implies that 
those who come to the system for help are doing a bad thing. It 
should be an avenue of appeal for them to feel safe and not to 
be charged with being frivolous because they have questions 
they can't get answered, and this is an available forum.
    Mr. Bransford. Mr. Chairman, if you look at the EEOC 
statistics, 23,000 cases, a little over 20 percent are settled, 
345 cases had findings of discrimination, my calculation is 
about 17,000 cases that were not settled, that were not 
findings of discrimination. Now, a good percentage of those I 
think are frivolous, and I think Mr. Gage makes an excellent 
point when he says that people file EEO complaints because they 
are unhappy with something that happens at work, even when they 
have no evidence whatsoever of discrimination.
    And I think that gives rise to the need for an effective 
grievance procedure, an effective complaint procedure. I think 
because of the complexity of the time limits and the going back 
and forth, sometimes you can, sometimes you can't, it is very 
legalistic, I think that is one of the reasons why the Senior 
Executives Association put forth the idea of going to one place 
with one time limit, you bring an employee issue there and you 
bring your points in and then somebody takes a look at it early 
on and makes a decision whether there is merit to go forward 
with it, or whether there is no merit, whether you don't set 
forth a claim. I think you could get a handle early on on some 
of these frivolous cases and get them out of the system before 
they clog it up.
    Mr. Porter. It does seem to me the term frivolous, we have 
to be careful with that. Because many times, it sounds like it 
is just the direction or the decision on which course to take 
may have sent it on the wrong path. That doesn't make it 
frivolous. And I understand that first party is going to be as 
cautious as possible and try to make sure they do have all the 
checks and balances.
    And again, I appreciate this being very informal, I think 
everyone here wants the same thing, we want to help the 
employee. Without creating another organization, if I were to 
put together a suggestion as the Congresswoman mentioned, but 
that suggestion would be that there be a screening panel made 
up of stakeholders that would help with that first step. Not 
creating another whole organization or another whole layer of 
Government, but a coordinated effort between the different 
agencies of a clearing panel. I can give an example--maybe I am 
oversimplifying it--but in Nevada, we are not sure if we still 
do, but we had a screening panel for lawsuits for medical 
liability claims where there was a panel made up of doctors and 
lawyers and stakeholders that would look at lawsuits before 
they could go forward to have proper findings.
    But it seems to me that if we could help with a 
clearinghouse for the first step, that would really help the 
process, just have a screening panel that would help decide 
which avenue to take. What do you think about that?
    Mr. Gage. I think it is in everyone's interest to get in 
the right forum, first of all.
    Mr. Porter. Yes, because that has to save a lot of time.
    Mr. Gage. It absolutely would. And I really feel just from 
practical experience, when our union tries to prosecute EEO 
cases that really are good grievances, they are not EEO. And 
that has to be up front. And there has to be a process up front 
to be able to really get the employee, first of al, in the 
right direction. Regarding screening processes, I would like to 
hear more what you think.
    Mr. Porter. I am thinking out loud, and I would like to 
spend a little more time on this, but I am just looking for 
other ideas. Thank you.
    Mr. Davis.
    Mr. Davis. The idea of a screening panel is kind of 
interesting. Of course, a question would be, how do you arrive 
at decisions? I mean, if you are seeking consensus, I think 
that is one process. If you are going to be willing to end up 
with a partisan kind of voting process, that is another 
process. I just don't know how well that works when where you 
stand often determines the outcome.
    Or another way to put it is where you sit I find in life 
often determines where you stand. Some people will see this 
glass as half filled and somebody else will look at as half 
empty. And trying to get consensus becomes very difficult. 
Although I think it would be great if we could actually work 
toward that.
    My question is, though, Mr. Bransford, you support, that is 
the Senior Executive Association sees some merit in the concept 
of a Federal appeals process, right? And with some tweaking and 
some additions or subtractions or deletions that you could see 
it having some merit.
    Mr. Bransford. Congressman Davis, that is our proposal to 
solve the problem. First and foremost, we think there is a 
problem and we think that the commission as proposed and some 
of the ideas discussed here today, if they could be added to 
the legislation to get the input of other groups, to issue a 
report to solve this problem, I feel that a consensus could be 
reached, and I think a consensus should be reached. I don't see 
or envision an idea of minority reports or dissenting opinions 
or anything like that.
    So I would hope that these stakeholders, people of good 
faith and a lot of knowledge and experience with the system, 
could come together and make recommendations for effective 
reform.
    Mr. Davis. Ms. Kelley, if I understand your position, you 
are not as optimistic about that.
    Ms. Kelley. That is true. I am not. I have been a member of 
a panel like this before, where the hope and intent was 
consensus. It ended up exactly, Congressman Davis, as you 
described, as rather a partisan report with dissenting views. 
And that was in large part, in my view, based on how the group 
was made up from the very beginning, which I know is a point of 
interest to you as to what the makeup should be, and the fact 
is, as it is proposed, even though NTEU is very clear that we 
are opposed to the commission, we don't think it is even 
necessary.
    But if there were to be anything, the idea that two seats 
of eight, I believe, would be union representatives surely is 
important to have our voice there in the conversation. I would 
rather be in the conversation than on the outside, sending in 
messages or notes.
    However, if the die is cast because of the makeup of the 
group, then that casts a question about the hope and the intent 
of putting the group together in the first place. So I do have 
concerns.
    Mr. Davis. And Mr. Gage, you are even less optimistic, if I 
read you correctly.
    Mr. Gage. I am always more optimistic than Colleen. 
[Laughter.]
    But I agree with her right down on the line on this. We 
have been in this movie before, when we tried to really solve a 
problem and it comes down to employees losing rights, rather 
than a protection of their rights. We have seen that in a 
couple of other forums in this town.
    Ms. Davis. Ms. Heiser, your organization does see merit.
    Ms. Heiser. We think the problem is not clearly enough 
defined to set a target to find a solution. We think that the 
problems need to be explored a little more thoroughly. There 
are very different approaches that MSPB and EEO see. And we 
certainly did not use the term frivolous lightly. We think 
that, for instance, the EEO process is less structured and that 
it is easier for an employee to file something, and the promise 
of settlement is there for every single process. We think that 
facet of EEOC hurts legitimate claims.
    So we think that the problem really needs to be defined 
more before aiming for a solution.
    Mr. Davis. The interesting thing that I find is that we all 
represent employees. All of you represent employees. Yet you 
see this somewhat differently. I wonder if anybody would be 
interested or willing to venture to speak to why you might see 
it differently. Although the bottom line is that all of you 
represent employee groups, but different groups of employees, I 
guess, have different experiences. And based upon their 
experiences, sort of see things differently. And therein lies 
also a problem of not being able to just say, this is a labor 
management, Black or White kind of issue. But there are other 
factors involved in the process of determining the outcome.
    If there were more representation from stakeholders in the 
proposal, Mr. Gage, Ms. Kelley, would either of you see 
yourself moving closer to support of the proposition?
    Ms. Kelley. I think it would depend on a lot of other 
things, about how the commission was framed, what the mission 
statement or whatever the charter was, what the decisionmaking 
process would be. If there were to be facilitation, if that 
would be to truly move toward a new solution rather than 
everyone defending turf or just assuming that the process is 
not just to streamline the process, but to streamline employee 
rights. And I don't hear the subcommittee saying that.
    The interest in maintaining rights has been stated over and 
over. But that is not what I hear from everyone who would be 
involved in this. And if that was the goal, if it was stated up 
front, employee rights will not be decreased, and the goal is 
to figure out how to have a better process, a streamlined 
process that does not decrease employee rights, that is a 
different conversation than a lot of what I am hearing from 
some involved in this process.
    Mr. Davis. Would any of you be willing to just give your 
rights away to an independent commission, say, we put our faith 
in the old independent commission, and whatever you arrive at, 
we think you are going to be fair, we think you are going to be 
just, and we are going to get our just view and go on about our 
business?
    Mr. Gage. No, I don't think that would happen. It is just 
of--I don't know, it is tough for the unions to step out there 
and some would distrust us at this point in time. So I think 
that we would really have to have this guarantee that this 
would not be a forfeiture of employee rights and it is to truly 
to streamline a system and making justice a key word.
    Mr. Bransford. I think, Congressman Davis, first and 
foremost, that SEA's proposal is to protect employee rights and 
not diminish them. We were on the forefront of protecting the 
Merit Systems Protection Board appeal rights when those were 
challenged in the initial proposals for reform at the 
Department of Homeland Security and the National Security 
Personnel System. And there was, some of those initial 
proposals would have been a far greater diminishing of employee 
rights than ultimately occurred. We believe that is a very, 
very important part of this process.
    But I think there are a lot of things. And one of the first 
things to do is to take the EEO system out of the agencies. 
This is something that was, I think Ms. Dominguez, Chair 
Dominguez was getting at, and Chairman Porter's idea of a 
screening panel. These are all things this commission can 
discuss. How do we get the EEO system out of the agencies so 
that there is no conflict of interest, so that the people are 
comfortable getting rid of these cases where employees 
complain, raise an EEO complaint because their supervisor did 
not say hello to them that morning. Those kinds of complaints 
are filed and they are investigated and they do clog up the 
system.
    Ms. Kelley. But I would also say that taking the 
investigation process out of the EEOC can be done without 
forming a new commission to look at how processes can be 
streamlined. I mean, if everyone agrees that is an issue that 
needs to be looked at, I think we have heard from a lot of 
different parties that is an ongoing issue for employees at 
every level of the organization, then that can be addressed. We 
don't need a commission to do that. Let's just focus on that, 
acknowledge it is a problem.
    My concern over the idea of an independent group coming up 
with something that we just all accept is that I know there are 
a lot of, and a lot of them have been mentioned, very highly 
qualified independent groups who I think would be very valuable 
participants in the commission, if it were formed, even though 
NTEU is opposed to it being formed.
    But I have to tell you, when I hear the references that I 
hear to why this process needs streamlined, it is that only 
some small percentage of EEO cases are ever found to be valid 
and 17,000 of them are frivolous and that the MSPB rolls 80 
percent of the time in favor of management are not compelling 
issues to me, that give me any comfort that if those are the 
kinds of facts or the foundation that anybody is going to be 
looking at as a criteria for the future, that does not bode 
well for front line employees who are depending on a fair and 
credible process.
    And you will not find those kinds of decisions and numbers 
in negotiated grievance and arbitration processes that we 
pursue for the majority of issues that employees face in the 
workplace today. Because it a much more, it is a fair, open 
process, it is not about a lot of things we have heard 
described here today. So that would be my concern over just 
saying yes to anyone.
    Mr. Davis. Thank you all very much, and Mr. Chairman, I 
want to thank you. I know that Solomon has been looking for a 
running buddy for a long time. [Laughter.]
    Mr. Porter. One last question, and you don't need to 
elaborate. And I hate to admit it, but I am going back to what 
John said, I don't want to give John too much credit, but I 
will for the moment.
    How many of these 97 percent or whatever are really just 
misdirected from the beginning to the system?
    Mr. Gage. I did one look at one particular local, and it 
was over half.
    Mr. Porter. I wouldn't doubt it. At a minimum probably 
half.
    I am going to leave you with one thought. If there was a 
panel that provided guidance, not a mandate, but just a 
recommendation on the steps to follow, and certainly leave it 
to the employee to make the final decision, but if I were an 
employee and I had a problem, I would just like to know where 
to go for help. And I would like to know that I am going the 
right pathway. I would like to know that I am not wasting my 
time or anybody else's. I think most folks would want that 
option.
    They may disagree with that guidance, and if we allowed the 
option to continue down the path, I still think we would free 
up a lot of time and help the employee in a much more rapid 
response and proper direction. I am going to be looking at 
different options, because again, I think everyone is looking 
for the same thing. But I wouldn't want to take away any of the 
employee's rights. I would actually like to enhance the tools 
they have available to them, so they can get it resolved 
quicker.
    So with that, let me say thank you all very much for your 
testimony. We appreciate your all being here, and the meeting 
is adjourned. Thank you very much.
    [Whereupon, at 5:05 p.m., the subcommittee was adjourned.]

                                 
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