[Senate Hearing 115-420]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 115-420

             NOMINATIONS OF HON. ERNEST W. DUBESTER, 
           HON. COLLEEN D. KIKO, AND JAMES T. ABBOTT

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

                                 HEARING

                               BEFORE THE

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS


                             FIRST SESSION

                               __________

            NOMINATIONS OF THE HONORABLE ERNEST W. DUBESTER,
          HONORABLE COLLEEN D. KIKO, AND JAMES T. ABBOTT TO BE
               MEMBERS, FEDERAL LABOR RELATIONS AUTHORITY

                               __________

                            NOVEMBER 7, 2017

       Available via the World Wide Web: http://www.govinfo.gov/

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs
        
        
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT] 


                  U.S. GOVERNMENT PUBLISHING OFFICE                    
30-098 PDF                  WASHINGTON : 2019                     
          
-----------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, 
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected].         
        
        

        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
              David N. Brewer, Chief Investigative Counsel
               Margaret E. Daum, Minority Staff Director
               Donald K. Sherman, Minority Senior Counsel
                     Laura W. Kilbride, Chief Clerk
                   Bonni E. Dinerstein, Hearing Clerk

                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Lankford.............................................     1
    Senator Heitkamp.............................................     2
    Senator McCaskill............................................    12
    Senator Hassan...............................................    13
    Senator Harris...............................................    17
Prepared statement:
    Senator Heitkamp.............................................    23

                               WITNESSES
                       Tuesday, November 7, 2017

Hon. Jim Sensenbrenner, a Representative in Congress from the 
  State of Wisconsin.............................................     3
Hon. Colleen D. Kiko to be a Member, Federal Labor Relations 
  Authority
    Testimony....................................................     4
    Prepared statement...........................................    24
    Letter from the Office of Government Ethics..................    26
    Biographical and financial information.......................    29
    Responses to pre-hearing questions...........................    50
    Responses to post-hearing questions..........................    69
Hon. Ernest W. DuBester to be a Member, Federal Labor Relations 
  Authority
    Testimony....................................................     6
    Prepared statement...........................................    72
    Letter from the Office of Government Ethics..................    74
    Biographical and financial information.......................    77
    Responses to pre-hearing questions...........................   103
    Responses to post-hearing questions..........................   123
James T. Abbott to be a Member, Federal Labor Relations Authority
    Testimony....................................................     7
    Prepared statement...........................................   126
    Letter from the Office of Government Ethics..................   128
    Biographical and financial information.......................   131
    Responses to pre-hearing questions...........................   154
    Responses to post-hearing questions..........................   173
    Letter of support............................................   177

 
                             NOMINATIONS OF
                     HONORABLE ERNEST W. DUBESTER,.
                     HONORABLE COLLEEN D. KIKO, AND 
    JAMES T. ABBOTT TO BE MEMBERS, FEDERAL LABOR RELATIONS AUTHORITY

                              ----------                              


                       TUESDAY, NOVEMBER 7, 2017

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:29 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. James 
Lankford, presiding.
    Present: Senators Lankford, Daines, McCaskill, Tester, 
Heitkamp, Peters, Hassan, and Harris.

             OPENING STATEMENT OF SENATOR LANKFORD

    Senator Lankford. Good morning, everyone. Today we will 
consider of Colleen Kiko, James Abbott, Ernest DuBester as to 
be members of the Federal Labor Relations Authority (FLRA). The 
Committee takes these nominations very seriously, so we are 
pleased to have three very strong candidates before us. All 
three nominees are highly experienced in Federal Labor 
Relations and have largely dedicated their careers to public 
service in the Federal Government. We thank you for your work.
    The Honorable Colleen Duffy Kiko, originally of North 
Dakota--earned a B.S. from North Dakota State University and 
her law degree from George Mason School of Law. Ms. Kiko began 
her career at the Federal Labor Relations Board in 1976 as a 
supervisory labor relations specialist while it was still a 
division of the Department of Labor (DOL). She has been 
associated with FLRA longer than it has been in its current 
capacity as an independent agency.
    After her initial job at FLRA, Ms. Kiko went to law school, 
then returned to Federal service, working first at the 
Department of Justice (DOJ), then the House Judiciary 
Committee. In 2002, Ms. Kiko became a judge in the Department 
of Labor's Employees' Compensation Appeals Board. Then in 2005, 
she was appointed by President Bush to serve as General Counsel 
(GC) at the Federal labor Relations Board, a post she held 
until 2008 when she returned to the Department of Labor 
Employees' Compensation Appeals Board.
    Ms. Kiko, you began your career at the FLRA as a worker 
bee, and now you are sitting here before us nominated to be the 
Chair of FLRA. I believe you would call that a real Washington, 
D.C., success story in many ways.
    Mr. James Thomas Abbott of Virginia earned his B.A. from 
Malone University of Canton, Ohio, in 1980 and his J.D. from 
Temple University in 1983. Mr. Abbott spent almost two decades 
working as an Army civilian as counsel who focused on labor, 
personnel, and ethics issues. During this time, he was awarded 
the Commander's Award for Civilian Service, Department of the 
Army, in 1996, and in 2002, he was awarded the Meritorious 
Civilian Service Award from the U.S. Defense Contract 
Management Agency.
    After a career with the Army, Mr. Abbott came to Capitol 
Hill and served as the Deputy General Counsel in the 
Congressional Office of Compliance. Since 2007, Mr. Abbott has 
served as the Chief Counsel to the Chairman of the Federal 
Labor Relations Authority.
    Thank you, by the way, for your service as well.
    Finally, the Honorable Ernest William DuBester, who 
currently serves as the Member of the FLRA. Mr. DuBester, 
welcome back. Glad to be able to see you again here. Certainly, 
you are familiar with this process, as the third time you have 
been nominated to be a Member of the FLRA.
    Mr. DuBester received his B.A. from Boston College in 1972, 
his law degree from Catholic University in 1975, and his master 
of law from Georgetown in 1980. Mr. DuBester has 40 years of 
experience in labor-management relations. He began his career 
at the National Labor Relations Board. He has been a counsel to 
the AFL-CIO and a professor at both Catholic University School 
of Law and the George Mason School of Law where he was named 
the Distinguished Professor of Law and Chair of the Dispute 
Resolution Program. Mr. DuBester has also been a mediator and 
Chairman of the National Mediation Board. Mr. DuBester was 
first appointed to be a Member of the FLRA by President Obama 
in 2009 and reappointed in 2013.
    Clearly, we have three very qualified nominees before us 
who are all experienced and have extensive previous experience 
at FLRA.
    Committee staff reached out to all these nominees and 
colleagues and affiliates who all spoke very highly of them. 
Committee staff also had the opportunity to interview all three 
nominees on an array of Federal labor relations issues. They 
thoughtfully and competently answered each question to the 
staff's satisfaction.
    To date, the Committee has found you to be qualified for 
the positions you have been nominated. I look forward to 
speaking with you a bit more on your experience and 
accomplishments, how you intend to be able to bring those to be 
fair and impartial in your leadership in the FLRA.
    I now recognize Ranking Member Heitkamp for her opening 
statement.

             OPENING STATEMENT BY SENATOR HEITKAMP

    Senator Heitkamp. Thank you, Chairman Lankford. I do not 
want to give an extensive opening statement. He took most of 
the material already, anyway.
    Senator Lankford. That is what Chairmen do.
    Senator Heitkamp. Yes. Mr. Chairman did.
    Senator Lankford. That is what Chairmen do.
    Senator Heitkamp. Oh, that is what Chairmen do, I guess.
    But unlike the Chairman, I would like to welcome our 
Congressman from Wisconsin, Congressman Sensenbrenner. Thank 
you so much for coming, and thank you so much for being 
involved to the point where you will introduce one of our 
witnesses today. It is an honor, and it is also an honor to 
welcome a fellow North Dakotan to the table.
    That is how you say it, ``North Dakotan.''
    Senator Lankford. That is how you say it.
    Senator Heitkamp. Yes.
    But I will acknowledge that your father also had a very 
distinguished career in Federal service, and so you come from 
good stock and hardy stock since she comes from the very far 
reaches of our Northern Border, Pembina. I really appreciate 
all of your willingness to serve and look forward to your 
testimony.
    Thank you.
    Senator Lankford. Thank you.
    It is the custom of this Committee to swear in all 
witnesses that appear before us. If you do not mind, if the 
three nominees would please stand. Raise your right hand. Do 
you swear the testimony you will give before this Committee 
will be the truth, the whole truth, and nothing but the truth, 
so help you, God?
    Thank you. You may be seated.
    Let the record reflect all three answered in the 
affirmative.
    We are going to recognize our witnesses for their opening 
statements. We will begin with Ms. Kiko, who has a special 
guest introducing her. Is that correct?
    Jim Sensenbrenner, who is a friend and who has served 
faithfully in the U.S. Congress for a very long time, it is 
very good to be able to see you, to be able to do a formal 
introduction there.
    I recognize Congressman Sensenbrenner.

TESTIMONY OF THE HONORABLE JIM SENSENBRENNER, A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF WISCONSIN

    Mr. Sensenbrenner. Thank you very much, Chairman Lankford, 
Ranking Member Heitkamp, and Members of the Committee.
    I want to thank you for the opportunity to come before this 
Committee and endorse the qualifications of Ms. Colleen Duffy 
Kiko for the position of Chairman of the FLRA. She is a great 
friend and is superbly qualified for this position through her 
years of experience as well as her personal character.
    I have known Colleen Kiko for more than 35 years. In that 
time, I have seen her commitment to public service, dedication 
to the rule of law, and the devotion to her family.
    Colleen began her career as a newly hired attorney at the 
Department of Justice, where she worked in the Office of Legal 
Policy in the Civil Rights Division. She spent her time 
investigating and prosecuting housing and credit discrimination 
complaints. She also served as a detailee to the Eastern 
District of Virginia in prosecuting criminal cases.
    I hired Colleen as my committee counsel, where she worked 
on the successful impeachment of Judge Walter Nixon for which I 
served as one of the House Managers during the Senate trial. 
She served as the principal negotiator for both me and 
Judiciary Republicans on the Americans with Disability Act, one 
of the hallmark Civil Rights laws of our Nation. As my counsel, 
Colleen provided me with sound advice, and I trusted her 
judgment, discretion, and intuition.
    This is not the first time Colleen and I have sat in these 
seats. I introduced Colleen before this Committee when she was 
previously confirmed as General Counsel of the FLRA. During her 
tenure, she demonstrated her excellent legal skills, 
independent judgment, and commitment to the rule of law. With 
open lines of communication, she helped revamp the FLRA 
training programs and also prosecuted unfair labor practices 
while serving as a respectable negotiator.
    Finally, she serves as a judge on the Employees' 
Compensation Appeals Board. During her time there, Ms. Kiko 
worked with her colleagues on the board to make appropriate 
determinations with respect to Federal employees injured during 
the course of their employment. Each of her experiences has 
helped prepare her as a nominee as chairman of the FLRA. She 
undoubtedly possesses the knowledge, temperament, and 
commitment required for this position.
    I am fortunate to be able to present such a qualified 
public servant with such a distinguished background who 
deserves swift confirmation by this Committee and the Senate as 
a whole, and I appreciate your courtesy.
    Senator Lankford. Congressman Sensenbrenner, thank you 
again for all your service over the years, and thank you for 
being here as well.
    For each of you, as we begin and as you begin your opening 
statement, I would ask you to also introduce family, guests, 
and friends that are here. We understand full well that this is 
not only bringing you into the Federal service in this role, 
but you bring friends and family in your community with you as 
well. Please recognize those folks as you go.
    Ms. Kiko, you will go first.

   TESTIMONY OF THE HONORABLE COLLEEN DUFFY KIKO\1\ TO BE A 
           MEMBER, FEDERAL LABOR RELATIONS AUTHORITY

    Ms. Kiko. Thank you, Mr. Chairman, Ranking Member Senator 
Heitkamp, Members of the Committee. I would like to thank you 
and your staff for all the kindnesses that have been shown to 
me as I have prepared for this hearing.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Kiko appears in the Appendix on 
page 24.
---------------------------------------------------------------------------
    I also deeply appreciate Congressman Sensenbrenner for 
taking the time away from his very booked schedule to introduce 
me today. I respect his dedicated service to the U.S. House of 
Representatives and am deeply honored to call him a friend.
    I am here today with some of my family members who 
represent the others. Our son Philip Kiko Jr. and his wife, 
Molly, who are expecting our fifth grandchild; our son Michael 
Kiko; my sister, Tama; and of course, my best friend and 
husband, who currently serves as the Chief Administrative 
Officer of the House of Representatives, Phil Kiko. I 
appreciate their love and support and the love and support from 
those who have not been able to be here today.
    I would also like to thank Member DuBester and Nominee 
James Abbott for the welcoming attitude that they have shown me 
during this confirmation process. I look forward to working 
with both of them as we journey forward, should I be confirmed.
    I would also like to personally thank Pat Pizzella, Acting 
Chairman; Fred Jacob, Solicitor; and Gina Grippando, Counsel 
for Regulatory and Public Affairs at the FLRA, for helping me 
get to this point in the confirmation process.
    It is indeed an honor to have been nominated to serve as a 
Member of the Federal Labor Relations Authority and, if 
confirmed, to be designated as Chairman of that agency.
    My first job was a GS-3 clerk typist in the Department of 
Treasury, Office of Personnel. My father, Lawrence Duffy, 
proudly spent over 49 years, almost a half a century, in the 
Federal service before he retired. He was a railway mail 
carrier for the U.S. Postal Service (USPS) and later became a 
customs inspector at the North Dakota-Canadian border. He 
always considered Federal service to be an honorable 
profession. His work ethic, extreme pride in his job, and 
impeccable character were examples for me, and I hope I live up 
to his standards.
    My mother, Angie Duffy, was also an example to me as 
someone who always wanted to learn new things, have different 
and varied experiences--she began oil painting in her 50s--and 
to broaden her horizons. In her quiet, loving way, she pushed 
all four of her children to be strong and independent.
    Congressman Sensenbrenner and, of course, Chairman Lankford 
have spoken about my background, but I would like to point out 
a few areas of my career that I believe affirmatively qualify 
me for this position.
    Before the agency became an agency, I was working in a part 
of the Department of Labor that was transferred into this new 
agency in 1979. I was there when it opened its doors, and I was 
there celebrating with a cake on its first birthday. It was a 
very important part of shaping me as a professional employee, 
and it was and continues to be a very great place to work.
    I have worked in almost every component of the agency. In 
the regional office, I investigated unfair labor practices, 
chaired hearings on representational disputes, monitored 
Federal union elections, and conducted training for both 
agencies and unions. At the Authority level, I reviewed 
representational disputes, administrative law judge (ALJ) 
decisions, and drafted decisions for Authority members. My last 
position was a supervisory labor relations specialist handling 
procedural motions before I decided to attend law school.
    I graduated from George Mason University, now Antonin 
Scalia Law School, in 1986, and just 19 years later, I would 
find myself back at the FLRA serving as the Senate-confirmed 
position of General Counsel in 2005. And now, another 12 years 
later, I have again been nominated to serve as a Member of the 
agency. My career keeps taking me back to my roots.
    In my current position as a judge of the Employees' 
Compensation Appeals Board (ECAB), where I have served for 12 
years and rendered over 10,000 decisions, I have polished the 
attributes necessary to render decisions in an impartial 
manner, such as reviewing the facts presented, considering 
arguments provided by the parties, and applying the existing 
law to the particular facts of the case.
    I also have experience in management. While serving as 
General Counsel, I was responsible for managing the seven 
regions of the FLRA, which would include budgeting and 
performance management, leading change, policy development, 
staff and customer training, in addition to the mission 
requirements of the office.
    Further, as part of the management team under a former 
Chairman of ECAB, we managed a staff at that time of 
approximately 50 employees, which included updating performance 
standards, initiating programs to increase the quality, 
quantity, and timeliness of the work, and developed an updated 
case tracking system, to name a few. I believe this experience 
has prepared me while to serve as a leader in the FLRA.
    I believe my 29 years of service in the Federal Government 
should serve me well in this agency, where we are commissioned 
to provide leadership and establish policy and guidance 
relating to matters under the Federal Service Labor-Management 
Relations Statute, and to effectively administer the nine 
specific mandates of this statute.
    I greatly appreciate the opportunity to appear before you 
and am willing to answer any questions.
    Senator Lankford. Thank you. Mr. DuBester.

   TESTIMONY OF THE HONORABLE ERNEST W. DUBESTER\1\ TO BE A 
           MEMBER, FEDERAL LABOR RELATIONS AUTHORITY

    Mr. DuBester. Thank you, Chairman Lankford, Senator 
Heitkamp, Senator McCaskill, and Senator Peters. I greatly 
appreciate the opportunity to come before this Committee again 
for its consideration of my nomination to be a Member of the 
Federal Labor Relations Authority.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. DuBester appears in the Appendix 
on page 72.
---------------------------------------------------------------------------
    I also would like to thank the Committee's staff for their 
hard work and assistance in reviewing my nomination and 
scheduling this hearing.
    Before making a brief opening statement, I would like to 
introduce my wife, Karen Kremer, who is sitting in the first 
row behind me. In a few months, we will celebrate our 30th 
Anniversary. When I first met Karen, she was working for 
Senator Howell Heflin on the Senate Judiciary Committee. So the 
Senate will always hold a special, personal meaning in my life.
    I also want to recognize the presence here this morning of 
quite a few people from the FLRA, including my personal staff. 
These dedicated public servants, as well as many FLRA staff who 
are not present, are the key to the FLRA's many successes in 
recent years.
    I am also pleased to appear here today with Colleen and 
James who, hopefully, if confirmed by the Senate, will be my 
colleagues.
    Mr. Chairman, as you mentioned, this is the fifth time I 
have had the privilege to come before the Senate after being 
nominated by a President for a position of public trust. During 
the 1990s, I was nominated twice to serve as Chairman and 
Member the National Mediation Board, another independent 
agency. This is the third time that I have had the honor to 
come before this Committee after being re-nominated by 
President Trump to continue serving as a Member of the FLRA. I 
have now served as a Member for over 8 years.
    The last 8 years reflect many accomplishments at the FLRA. 
Exercising our statutory responsibility to provide leadership 
in labor-management relations, we have engaged in a variety of 
outreach, facilitation, and training activities, which include 
the delivery of a variety of training sessions to tens of 
thousands of labor and management representatives in the 
Federal community, and during this period, we have also made 
timely issuance of decisions a major priority.
    In addition, with an agency focus on human capital 
initiatives, such as training and development, performance 
management, and work-life balance, employee morale has improved 
dramatically. For the last 2 years, we have ranked in the top 
five overall in the Partnership for Public Service (PPS) 
rankings for ``Best Places to Work in the Federal Government,'' 
and in 2015 and 2016, we received No. 1 rankings in the 
specific categories of teamwork and effective leadership.
    Mr. Chairman, as you mentioned, I am not a kid anymore, 
with over 40 years of experience in labor-management relations, 
working as a public servant, as an advocate, a mediator, an 
arbitrator, and an academic, over 25 of those years are in the 
Federal sector. I remain strongly committed to the FLRA's 
mission and to the importance of stable, constructive labor-
management relations in the Federal sector, and if re-
confirmed, I will continue to work tirelessly so that the FLRA 
is recognized by the Federal sector's labor-management 
community as one of the most effective and efficient agencies 
in the Federal Government.
    Again, I appreciate the opportunity to appear before you, 
and I am pleased to answer any questions that you have.
    Senator Lankford. Thank you, Mr. DuBester. Mr. Abbott.

 TESTIMONY OF JAMES T. ABBOTT\1\ TO BE A MEMBER, FEDERAL LABOR 
                      RELATIONS AUTHORITY

    Mr. Abbott. Good morning. Mr. Chairman, Ranking Member 
McCaskill, Senator Heitkamp, and Members of the Committee, I 
want to thank you for conducting this hearing at a time when so 
many other pressing issues are competing for your time and 
attention. I would also like to thank your Committee staff for 
the outstanding support which they provided to me as I prepared 
for this hearing. I appreciate your warm reception.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Abbott appears in the Appendix on 
page 126.
---------------------------------------------------------------------------
    I am honored and humbled to have been nominated by 
President Trump to become a Member of the Federal Labor 
Relations Authority. If confirmed, it will be, for me, the 
highest privilege of my professional life.
    With me today are my husband of 21 years, Daniel Gri, and 
our sons, Caleb and Alfred, who are the pride of my life. That 
Daniel is able to join me today is nothing short of a miracle. 
Just 4 months ago, he was on life support following a serious 
automobile accident. This is his first public outing since that 
accident and is testament to his indomitable spirit. I rely 
upon that spirit every day.
    My sister and brother-in-law, Linda and Don Walde, and my 
niece, Heather Legore, as well as my cousin, Gayle Abbott, and 
her daughter, Elizabeth, are here as well.
    My professional career has spanned 34 years, 33 devoted to 
public service. I learned about service and hard work from my 
parents and grandparents. Grandfather Whipple worked as a 
farmhand in Kansas in the 1910s until he saved enough money to 
buy his own land. His farm survived the Great Depression 
through his hard work and determination.
    Grandfather Abbott singlehandedly operated a grist mill in 
Painesville, Ohio. He hired helpers only when, in his words, 
``I could pay a fair wage for a fair day of work.''
    My mother, a nurse, and my father, a minister, served as 
missionaries in Congo where they built churches to serve not 
just as centers of worship but also to serve as local medical 
clinics and schools.
    But for me, the ultimate example of public service was my 
brother, Denis Abbott, who gave his life in service to his 
country in Pleiku, Vietnam.
    Before joining the FLRA as Chief Counsel, I sat at dozens 
of bargaining tables negotiating local and nationwide 
collective-bargaining agreements. Through those experiences, I 
learned firsthand how differences can be constructively 
resolved but also how they can end up in dispute. I have 
witnessed the dynamics of labor relations at work between 
first-line supervisors and hardworking union stewards in a 
variety of settings, such as work floors where artillery 
equipment and attack helicopters are serviced and repaired.
    I have met with employees and union stewards at sites where 
the working conditions were difficult, even dangerous. I have 
had to tell first-line supervisors and generals that they were 
wrong and what they must do to comply with the statute. 
Therefore, I understand why the protections of our statute are 
so important to Federal employees.
    I believe that we can all agree that the Federal workforce 
in 2017 looks very different than it did in 1978 when our 
statute was enacted. In this changed environment, the Authority 
must clearly define what matters affect working conditions and 
those which constitute negotiable conditions of employment. To 
that end, I pledge that if I am confirmed, I will adjudicate 
all matters fairly and impartially, enforce the statute as it 
is written, but above all respect judicial precedent.
    I look forward to working with my colleagues to ensure that 
the FLRA remains relevant and to drafting decisions that can be 
understood by laypersons as well as attorneys.
    It is my privilege to appear before you today, and as my 
colleagues, I am happy to answer any questions.
    Thank you.
    Senator Lankford. Thank you, Mr. Abbott.
    I am going to ask three mandatory questions of all three of 
you, and then I am going to defer to Ranking Member Heitkamp. 
She has another hearing that is happening simultaneous to this. 
I want to make sure that we get to her questions immediately.
    The three questions I am going to ask of all three of you--
and I will need a verbal response--and I will just kind of come 
down the road, starting with Mr. DuBester, Ms. Kiko, and Mr. 
Abbott.
    Is there anything that you are aware of in your background 
that might present a conflict of interest with the duties of 
your office to which you have been nominated? Mr. Dubester.
    Mr. DuBester. No.
    Senator Lankford. Ms. Kiko.
    Ms. Kiko. No, sir.
    Senator Lankford. Mr. Abbott.
    Mr. Abbott. No, sir.
    Senator Lankford. Second question. Do you know of anything, 
personal or otherwise, that would in any way prevent you from 
fully and honorable discharging the responsibility of the 
office of which you have been nominated? Mr. DuBester.
    Mr. DuBester. No, Mr. Chairman.
    Senator Lankford. Ms. Kiko.
    Ms. Kiko. No, sir.
    Senator Lankford. Mr. Abbott.
    Mr. Abbott. No, sir.
    Senator Lankford. Third question. Do you agree, without 
reservation, to comply with any request or summons to appear 
and testify before any duly constituted committee of Congress 
if you are confirmed? Mr. DuBester.
    Mr. DuBester. I do.
    Senator Lankford. Ms. Kiko.
    Ms. Kiko. I do.
    Senator Lankford. Mr. Abbott.
    Mr. Abbott. Yes, I will.
    Senator Lankford. I recognize Ranking Member Heitkamp.
    Senator Heitkamp. Thank you so much, Mr. Chairman.
    These are incredible years of service to this organization 
and to this agency sitting before us, and I cannot imagine a 
panel more qualified to do this work. But you also have the 
wisdom of time. You have had a chance to see this agency grow 
and change.
    The question that I have is, What do you believe today is a 
challenge that will come to you that you did not anticipate all 
those very many years that you have been serving and been 
associated?
    We will start with Mr. DuBester.
    Mr. DuBester. Well, the world, of course, is always rapidly 
changing, and that certainly applies to the field of labor-
management relations.
    I think that probably one of the changes that is a fairly 
recent change that will remain a challenge in the years ahead 
is the approach our agency brings to the resolution of 
disputes. On the one hand, of course, we have a very direct 
statutory responsibility for resolving particular cases, and 
that remains fairly constant over time. But we also have 
responsibility under our statute that was referred to earlier 
to provide leadership and guidance to help agencies throughout 
the Federal Government develop successful labor-management 
relations programs.
    I think among other things, the kind of outreach that we 
have done over the last few years in terms of training them and 
developing their skills and abilities to improve their own 
relationships, so agency representatives and labor 
representatives can learn how to resolve more of their 
disputes, even voluntarily, so that a lot of the disputes that 
come to us now will not necessarily come to us anymore. Day in 
and day out throughout the Federal Government, it is those 
agency reps and those labor reps who have to work together, who 
have to address the problems that are unique to their agency. 
By giving them the problem-solving skills, learning how to 
treat with certain situations through the use of alternative 
dispute resolution services, I think is and has been a recent 
challenge but will remain a challenge in the future, in my 
view.
    Senator Heitkamp. Thank you. Ms. Kiko.
    Ms. Kiko. Thank you, Senator Heitkamp.
    I would say that the immediate challenge is, not 
disagreeing at all with Mr. DuBester, I would certainly agree 
with those, but I would also say that cybersecurity is an issue 
that is facing all the agencies right now. I would take that as 
a very serious concern for every agency.
    But also, I believe that the backlog that is sitting there 
at the moment, we would like to get those moved.
    Senator Heitkamp. How does that compare to your 
recollection back when you were previously with the agency?
    Ms. Kiko. When I was with the General Counsel, there was a 
backlog waiting for me when I got there, and I am sure there is 
a backlog waiting for a full complement of the Authority when 
we get there, so----
    Senator Heitkamp. Is it worse today than it was 10 years 
ago?
    Ms. Kiko. Right now, there is a General Counsel. When I 
came in as the General Counsel, there had not been a General 
Counsel for several months, and so there had been an inability 
to file any kind of unfair labor practice complaints or issue 
decisions on appeals. Those decisions were waiting for me to be 
issued.
    At the current moment, we have a General Counsel. So from 
that perspective, I do not think there is anything waiting 
there to be decided.
    On the Authority side, I do not have anything to compare it 
to since I was not on the Authority side.
    Senator Heitkamp. We always say justice delayed is justice 
denied, and I agree that that we need to make decisions in a 
timely fashion. Mr. Abbott.
    Mr. Abbott. Well, Senator, just as when Congress enacted 
our statute in 1978 and the original Members of the Authority, 
when the statute was created, just as they could not have 
anticipated a workforce that had computers at every desk, the 
availability of email, and the ability of enemies of the 
country to have access to our security and cyber systems and to 
wipe out swaths of information in a moment, I think we cannot, 
sitting here, anticipate all of the changes that will be coming 
during our terms. I believe that requires that the Authority be 
certain to maintain its relevancy to the labor-management 
community by looking at our statute and being clear in our 
decisions to give a road map to our customers, which is the 
labor relations community.
    Senator Heitkamp. In response to a question regarding 
political difficult choices in your policy questionnaire, each 
of you stated you do not make political choices, which I think 
is great, but could you describe a time when you made a 
difficult or unpopular decision or choice that you thought was 
in the best interest of the country or your agency? Probably 
just give me one of the most difficult decisions that you have 
had to make. Mr. DuBester.
    Mr. DuBester. Senator Heitkamp, I think as I mentioned in 
my questionnaire, I probably refer back to my service as 
Chairman of the National Mediation Board. That agency has 
jurisdiction in the transportation sector over airlines and 
railroads. Not all, but many of the disputes that arise are 
high-profile disputes, often with a national impact. Given the 
nature of that statute, it also allows for the intervention of 
the White House, if you will, the President, to take certain 
actions that will have a bearing on the dispute.
    It was my responsibility, of course, to make 
recommendations to the White House, and I had to bring my sense 
of the situation as well as my experience in labor-management 
relations to bear and often--sensitivities, if you will, of a 
political nature. My decisions were not political, but I was 
serving a White House, and obviously, all of you as public 
servants and elected officials understand considerations of 
your constituencies.
    I think those were challenging situations, where I often 
knew they were tough decisions and I had to give the best 
decision I could.
    Senator Heitkamp. Ms. Kiko.
    Ms. Kiko. Well, I have certainly made difficult decisions 
in my life. Probably the most difficult decision that I ever 
made was when I chose to stay home and quit my career and stay 
home with my four children and raise them. I do believe I think 
that might have been of service to this country, I am hoping. 
[Laughter.]
    Senator Heitkamp. Thank you. Mr. Abbott.
    Mr. Abbott. Yes. One of the most difficult decisions that I 
had to make as a Federal manager was in January of this year 
when Acting Chairman Pizzella transitioned to our new Acting 
Chairman. We had to assess the needs of the agency that were 
the resources that we had.
    We had an office, by way of example, that had increased its 
staffing by 200 percent in a matter of 1 year with the plan and 
hope that the new program developed would create workload. That 
workload did not develop, and there was a decrease in caseload. 
The Acting Chairman and myself, we had to make the difficult 
choice in recognizing that the Office of General Counsel (OGC) 
did not have resources, and as difficult as it always is to 
change priorities such as that, we had to make that difficult 
decision for the good of the agency and so the labor-management 
community, would be served in processing unfair labor 
practices.
    Senator Heitkamp. Thank you so much.
    Senator Lankford. I would like to recognize the Ranking 
Member of the full Committee, Claire McCaskill.

             OPENING STATEMENT OF SENATOR MCCASKILL

    Senator McCaskill. Thank you very much.
    I just have a simple question for the three of you, and it 
probably will not take you long to answer, at least I hope not. 
I would ask each of you to respond to this question. Do you 
fully support the right of government employees to organize and 
bargain collectively?
    Ms. Kiko. I can answer that absolutely, positively. I am 
there to provide leadership and establish guidance under the 
Federal Service Labor-Management Relations Statute and 
effectively administering all of these mandatory mandates under 
the statute, and I absolutely would agree with that.
    Senator McCaskill. Mr. Abbott.
    Mr. Abbott. I do as well. I believe that our statute serves 
a very important part of the construct of Title 5 and Title 7 
to provide an avenue of recourse for employees who are 
aggrieved, and I have witnessed and seen myself how 
constructive positive labor-management relations are.
    Yes, I believe that the statute, as written, establishing 
collective bargaining is a positive force in the Federal 
Government.
    Senator McCaskill. You would support it even if the statute 
were not there. Your support is because you believe in the 
concept, not because you are following the statute?
    Mr. Abbott. I believe in the concept and the statute. Yes, 
ma'am.
    Senator McCaskill. OK. I know you have to follow the law. I 
am not asking about whether or not--I am asking whether you 
agree with the law that that should be something that is 
allowed in the United States of America for government 
employees to organize and collectively bargain.
    Mr. Abbott. Without a doubt.
    Senator McCaskill. OK.
    I probably know your answer, Mr. DuBester.
    Mr. DuBester. The answer is yes, Senator. I very strongly 
believe in the institution of collective bargaining. And beyond 
that, I often say one reason is because I am a great believer 
in mechanisms that afford the opportunity for interaction and 
dialogue between employer representatives and their employees 
through exclusive representatives. I think that is the best way 
to address problems in any workplace, in any jurisdiction, 
whether it is the private sector, the public sector, or the 
Federal sector.
    But beyond that, of course, I saw that Ms. Kiko was holding 
up our statute, and while I know you were not asking for a 
statutory commitment, but in the very first section of the 
statute, Findings and Purpose, it talks about collective 
bargaining and the findings of Congress that it is in the 
public interest. I believe in the statute and the agency's 
mission.
    Senator McCaskill. Thank you.
    Thank you, Mr. Chairman.
    Senator Lankford. Senator Hassan.

              OPENING STATEMENT OF SENATOR HASSAN

    Senator Hassan. Thank you very much, Mr. Chairman, and good 
morning to you all. Congratulations on your nominations and 
being here.
    I wanted to follow up a little bit. I had a similar 
question to Senator McCaskill, and I thank you for your answers 
to that.
    I also come from an employment law background. I 
represented management for years, and I, too, believed that 
collective bargaining has proved to be not only an excellent 
mechanism for workers to protect themselves and each other and 
have the benefit of concerted action, but also it has been a 
very good tool for communication between labor and management 
and resolving issues.
    Toward that end--and this is for each of you--do you all 
believe, as I do, that official time can be used to resolve 
important matters and, in turn, save time and resources?
    We will start with you, Mr. Abbott.
    Mr. Abbott. Official time is defined by our statute, and it 
provides that reasonable official time is what is agreed to by 
management and the union together.
    I believe that official time is a necessary part of most of 
the areas that are covered by our statute particularly in the 
traditional labor relations setting where the management and 
the union are sitting down at the bargaining table negotiating 
a contract.
    Beyond that, I do believe it is for Congress to make that 
decision.
    Senator Hassan. I thank you for that answer. I think one of 
our concerns is that if you believe in collective bargaining, 
then if you do not have the mechanism of official time, you are 
really making it very difficult for workers to enjoy the 
benefit of collective bargaining because they do not have 
anybody who is in the position to really work with the 
management side in an effective way. I would ask you to think 
about that.
    Is it Kiko--``Kiko.'' Yes. Thank you.
    Ms. Kiko. Good morning, Senator.
    Senator Hassan. Good morning.
    Ms. Kiko. As Mr. Abbott has explained, the statute does 
require that there is official time for collective bargaining 
negotiations and also for presenting before the Authority, and 
all other official time is to be negotiated between the agency 
and the union. I certainly would support that that it is a very 
a specific part and an important part of the collective 
bargaining experience.
    Yes, I do believe in the collective bargaining experience, 
if I suggested differently in my earlier answer.
    Senator Hassan. Thank you very much.
    Mr. DuBester.
    Mr. DuBester. Well, Senator, I think the answer to your 
question very much relates to the question of Senator McCaskill 
about your commitment to collective bargaining.
    I have heard a lot of questions raised about official time 
over the last few years within the halls of Congress, and in my 
view, among other things, often the discussions are taken out 
of context because under our Federal statute at least, we have 
a carefully crafted statute which, of course, Congress always 
reserves the right to consider and perhaps amend. But it is a 
carefully crafted statute, which has a lot of different 
dimensions to it, including a very explicit statutory 
management rights provision, obviously the concept of no use of 
economic weapons, in the employees' case, the right to strike. 
But it does have the--and in the union's instance, no right to 
support itself through union security as unions do in other 
sectors.
    Again, my view on official time, beyond what is already 
contained in the statute, is if you believe in the institution 
of collective bargaining--and as I said in my prior answer, I 
believe in it among other things because I believe in any 
mechanism that affords or promotes the ability for employer 
reps--in our case, agency reps--and employee reps--in this 
case, exclusive representatives, their unions--to sit down and 
talk, to engage in dialogue, hopefully to problem solve.
    Senator Hassan. Yes.
    Mr. DuBester. The application of official time were to 
exist in the Federal sector to me is not just a matter which I 
think is often, in my view, mischaracterized, as for the union, 
it is in the agency and employer's interest as well when used 
appropriately because it affords that kind of a mechanism that 
promotes dialogue and communication.
    Senator Hassan. Thank you, and I thank you all for your 
answers.
    One of the privileges of being from New Hampshire is that I 
have the good fortune of representing the men and women at the 
Portsmouth Naval Shipyard, who have a terrific labor-management 
model going, and I would recommend it to you. They work 
together incredibly well in part because there is a strong 
acknowledgement of the value of collective bargaining and 
official time.
    With that, thank you very much again for your willingness 
to serve, and I yield the remainder of my time, Mr. Chair.
    Senator Lankford. Thank you, Senator.
    Ms. Kiko, you have seen a lot change over the years since 
the birth of the agency and the first birthday and the cake to 
now. I have an odd question for you: What has changed in the 
operation of the agency over that time period, and how did it 
change? Was it statutory? Is it drift? Are we still on mission? 
Are we getting better at what we are doing? I am looking for 
somewhat of a historical look.
    Mr. DuBester, I am going to come right back to you on this 
as well.
    Give me a feel for what you have seen, and are we still on 
track?
    Ms. Kiko. Thank you, Senator.
    I think the biggest change in the FLRA since I was there is 
the technology change. We were writing decisions on yellow 
legal pads and handing them off to a clerk typist to type in a 
big, giant Wang that was about the size of this table. That has 
changed, where everyone clearly has all of their technology in 
their pockets anymore. So that has changed.
    The mission of the agency has not changed. The direction of 
the agency has not changed. We are still doing the best to 
manage the cooperation of labor-management relations in the 
Federal Government, and I think that continues to be our 
mission.
    That would be it. If you have any further questions. Yes.
    Senator Lankford. Mr. DuBester.
    Mr. DuBester. Well, I certainly agree with Ms. Kiko that 
the rapid changes in technology cannot be ignored, and among 
other things, like many agencies, we have gotten in recent 
years--in terms of providing better customer service gotten 
into e-filing, if you will, which facilitates the parties' 
abilities to process cases with us.
    Again, I think beyond just the specific case 
responsibilities we have, certainly over time, we have 
developed as an agency like ours is designed to do, with 
certain expertise in the specific areas of case handling that 
certainly evolves over time, and I think it is helpful to the 
labor-management community.
    As I said before, we are a small agency but with a large 
mission because we are not just the FLRA, which is a rather 
small, modest agency, but we have a responsibility for the 
labor-management relations programs throughout the Federal 
Government.
    If we are doing effective outreach activities, which in 
recent years we have trained tens of thousands of agency reps 
and union reps in a variety of activities that are designed to 
help them do their jobs better. We are helping if you will, 
labor-management relations through the Federal Government. I 
think that perspective and appreciation about just how large 
the impact can be on our mission is----
    Senator Lankford. Well, that is part of my question, 
actually. Are we still on track with the mission, or is the 
mission continuing to be able to grow and the task beginning to 
grow? When it is one thing to be able to make decisions, the 
other thing to think we have expertise, how do we actually 
proactively get this out to agencies?
    When we talk about things like guidance, for instance, 
getting help to entities, somewhat that has been the role of 
Office of Personnel Management (OPM) to be able to do. Are we 
drifting into the role of someone else, or are we providing 
advice to them, or are we finding instructions to them? Where 
do you draw that line?
    Mr. DuBester. In the areas that fall within, again, 
specifically labor-management relations, in the areas mentioned 
in our statute, then I think, at least in recent years, we have 
been on the mark and hopefully will continue to be on the mark 
by doing a variety of things; first, providing information, 
making available information on our website in the areas that 
our parties have to handle, like in arbitration cases, 
negotiability cases, basic statutory rights. We have been 
actually doing training with our parties in those areas, that 
kind of outreach.
    As I mentioned, I believe, consistent with our statutory 
responsibility to provide leadership and guidance--and when we 
are talking about labor-management relations, as I often say, 
the word that is often overlooked in that phrase is the word 
``relations.''
    Senator Lankford. Right.
    Mr. DuBester. Providing training in problem solving and 
relationship building is very much part of the statute and----
    Senator Lankford. Sure.
    Mr. DuBester [continuing]. Part of the service that we can 
provide to them.
    Senator Lankford. I think what I am trying to get the 
boundary here is between OPM and their statutory responsibility 
and the responsibility of your agency as well, to be able to 
say where do you draw the line in things like guidance, between 
what is helping and providing resources or what is instructing.
    Mr. DuBester. Again, this is not a pure answer, but to me, 
OPM, of course, provides information, which to my way of 
thinking involve the employment relationship and personnel 
kinds of matters that would apply to any employee in the 
Federal Government, whereas we have a specific mission 
involving labor-management relations, which is something that 
OPM would not get into, if you will, elsewhere in the Federal 
Government, per se. That is where I think the line pretty much 
is. It is kind of uniform personnel matters that apply 
throughout the Federal Government. We would not be providing 
guidance in that area, I do not think, not appropriately, and I 
know during my tenure, we certainly have not.
    We have complied with OPM directives for our employees, but 
in the labor-management arena, that is where I think we have an 
obligation to provide information.
    Senator Lankford. Same question for Mr. Abbott. Where do 
you draw that line on what is the difference between guidance 
and instructions or actually telling someone what to do, or how 
do you draw that line in the relationship with different 
agencies?
    Mr. Abbott. Thank you, Senator.
    Yes, I think the Authority has been very effective over the 
years of its existence when the Authority does what it was 
created to do, and that is to determine matters under our 
statute.
    In respect to training and outreach, I believe that when 
the Authority is doing what is basically required under our 
statute--and that is to provide statutory training and how our 
statute works and explaining Authority precedent--I think we 
have been very effective.
    When we engage in training on basic interest-based 
bargaining and problem solving, we are being very effective.
    However, I am concerned that when our training outreach 
goes into areas such as relationship repair, dealing with 
difficult people, decisionmaking and communication skills, I am 
not sure that we are the best agency or the best provider of 
that. There are many qualified, trained individuals in the 
private sector to provide that.
    I think when we go astray of the statutory limits is the 
time when we are not being effective. I think that we lose an 
ability--I think the best training that the Authority can give 
to the labor-management community is when we write decisions 
that are clear and understandable to laypersons as well as 
attorneys, and I think that the Authority does best when it 
answers the questions that the parties bring to it.
    But over the last 2 years, 52 percent of the decisions of 
the Authority have dismissed cases Either in part or in whole 
on procedural technicalities. Every time we dismiss an argument 
on a technicality, we are not providing guidance to our 
customers who have had a dispute, an honest dispute, and they 
are looking to us for an answer.
    Senator Lankford. Yes. That should be helpful.
    Mr. DuBester, I do want to clarify one issue as well. There 
was a difference of opinion between you and the Appeals Court 
on the Inspectors General and whether the interviews of the 
Inspector General can fall under collective bargaining and 
negotiations as well. Obviously, that decision was done in 
2012, then was later overturned on it. Where are you on that 
now and your perspective on the relationship between interviews 
from the Inspectors General and collective bargaining 
negotiation?
    Mr. DuBester. I do not have a detailed specific 
recollection of the case you are talking about, but I am aware, 
I think, of what you are referring to.
    In that particular situation, of course----
    Senator Lankford. It has been a few years, so I would give 
you some mercy on that one as well. So yes.
    Mr. DuBester. The majority decision was overturned by the--
I believe the D.C. Circuit, and of course, in that particular 
instance, the D.C. Circuit ruling becomes the law of the case. 
It was remanded to us, and of course, that was implemented, and 
that has now become the law.
    These kinds of situations are not necessarily uniform. 
Number one, they are going to be driven and determined by 
perhaps unique facts that may arise, and moreover, while the 
D.C. Circuit--because we are the seat of the Federal Government 
and that is our jurisdiction, probably matters that are 
appealed to the circuit courts go to the D.C. Circuit more 
often than not. But the parties have a right to go to any 
circuit.
    Right now, what I would say is the matter that you referred 
to became the law of the case in that instance based on the 
D.C. Circuit ruling, but I am not sure that it is necessarily 
the law either within the FLRA, depending on what might come 
back to us in terms of the facts, or what other circuit courts 
might say about the case.
    Senator Lankford. In that case, you would not considered 
that settled?
    Mr. DuBester. Again, I do not want to make a judgment 
without seeing the particular facts, but I think in the spirit 
of what you are asking, I would say that is right in my mind. 
Yes, Senator.
    Senator Lankford. What was right in your mind?
    Mr. DuBester. It is not settled.
    Senator Lankford. It is not settled?
    Mr. DuBester. No.
    Senator Lankford. OK. Senator Harris.

              OPENING STATEMENT OF SENATOR HARRIS

    Senator Harris. This question is for Ms. Kiko.
    The FLRA is an important mechanism, obviously, for more 
than a million Federal employees, and it has a history, 
unfortunately, however, of backlogs, including a backlog of 
nearly 400 cases in 2009. Are you familiar with that?
    Ms. Kiko. I am not familiar with the backlog in 2009.
    Senator Harris. Are you aware of the backlog as it 
currently exists?
    Ms. Kiko. I am aware that there is a backlog with some 
cases waiting to be decided because at this point there is not 
a full membership of the Authority, and so I would say that 
that is a backlog sitting there for those decisions. Several of 
the decisions with just the two members have been going out, 
though, in addition to the ones that are pending.
    Senator Harris. If confirmed, what would your plan be for 
addressing the backlog and eliminating it?
    Ms. Kiko. Well, I think my purpose there is to efficiently 
and effectively promote the statute, and one of the major jobs 
is to decide the cases that are before us. I would think of 
that as a very high priority to get the cases out that are 
before us.
    Senator Harris. Have you had any conversations with anyone 
there about what is going to be most efficient in terms of 
moving the cases along?
    Ms. Kiko. I have had discussions with both Member DuBester 
and Mr. Abbott on what the situation is at the agency and how 
the cases are processes, and I would like to work with both of 
them as we move forward to find out the best way to move the 
cases and so that we have a good, effective way to get them out 
efficiently.
    We have shareholders, I believe, that are looking for us to 
spend the money wisely that has been appropriated to us, and 
one of our jobs is to issue those decisions. I would think of 
that as a very high priority.
    Senator Harris. Thank you. Mr. Abbott.
    Mr. Abbott. I think the most effective way to deal with the 
backlog that we have when we have not had a full complement is 
simply we have established internal guidelines for moving cases 
forward. Upon the three of us being confirmed, we will need to 
establish and see if those timelines and internal processes are 
effective.
    I would say in my experience, there is no right or wrong 
way of addressing the matters, but I believe it does require 
each of us to address as expeditiously as possible holding our 
own staffs accountable for performance and effective service.
    Senator Harris. Thank you.
    I yield back my time.
    Thank you. Thank you both.
    Senator Lankford. Senator Heitkamp.
    Senator Heitkamp. Thank you for that line of questioning. I 
think, again, in our oversight capacity, we are going to be 
very concerned about cleaning out the backlog and making sure, 
and if you do not have the resources, we need to know that 
because it is only going to get worse if systemic changes are 
not made.
    Ms. Kiko, in your questionnaire, you talked about your 
leadership style and how you like to energize and motivate 
people. One thing that will be inevitable in your position as 
Chairman, if confirmed, is you are leading an organization 
through periods of disagreement. The three of you will not 
always see things the same way, and it is important that the 
Chairman have the ability to lead and manage the organization 
through that disagreement.
    How would you change your leadership and management style 
when it comes to leading the Authority through periods of 
disagreement and challenges?
    Ms. Kiko. Thank you, Senator, for that question.
    I do not know that I would change my management style 
necessarily. I do believe that my management style is very 
collegial, and I would want to work with both Mr. DuBester and 
Mr. Abbott in trying very hard to find the best way to lead 
this organization.
    Open communication is one of my primary requirements on a 
management style. I would want to hear what people have to say, 
find out the best way to lead this agency, but to me, open 
communication is the key to all of that. I believe that working 
together with Mr. Abbott and Mr. DuBester is the best way to 
find the best solutions--by working together and hearing 
different ideas, if that answers your question.
    Senator Heitkamp. I think it does. I think one of the great 
challenges that you might have is trying to figure out how you 
are going to work through this backlog and how you are going to 
challenge an entire organization to make decisions in a way 
that is very attentive to the facts and not shortchanging 
anything but also clearing this docket because those challenges 
will continue, and it will get bigger and bigger. The problem 
will be bigger, and it is going to take a lot of communication, 
and it is going to take a lot of leadership.
    As I said in my opening statement, you are three incredibly 
qualified candidates, but you are coming in at a time when we 
need to know that it is not business as usual, that things will 
get done in a timely fashion.
    Thank you for that answer, and good luck to all over you.
    Ms. Kiko. Thank you, Senator.
    Senator Lankford. Thank you.
    Any final comments from anyone?
    [No response.]
    I see an overwhelming shaking of the heads here.
    Senator Heitkamp. Quit while you are ahead.
    Senator Lankford. Yes. I can see that as well.
    I do want to be able to say to all of our witnesses, there 
is an expectation here that the backlog will be taken care of, 
individuals will be heard, that we are working, as Mr. DuBester 
said--working on the relations side of things. That the focus 
continues to be a healthy working environment not only in that 
entity, but in the entities where we get a chance to serve 
across the Federal Government.
    You have an incredibly important role that hardly anyone 
knows exists, unless you are in conflict, and then everyone is 
looking for you. We do count on you to be able to help on those 
very difficult days.
    Mr. DuBester, at some point, you and I can visit at greater 
length on this other case with the Inspectors General. The one 
thing that I would say on it is, there is a great challenge of 
opinion at times that once it goes up to an appeals course, 
does that resolve the issue, or does that not resolve the 
issue? I would only say if it goes up to an appeals court, we 
are under that until the Supreme Court says something 
different. But in the meantime, we are under that court.
    There have been plenty of appeals court decisions across 
the country that I have not liked, but we live as a nation 
under law, and that is the way we balance that out. When the 
facts may change or circumstances may come up differently on 
that, we can push back and forth on it. That is the fun of our 
system on it, but I would encourage us to be able to do that.
    I would assume you are in that same boat, but based on your 
previous answer, I was trying to think through the 
possibilities of what that would mean to have a situation where 
someone in that position would say an appeals court has spoken 
on it, but I am not sure I like it. We are all going to try to 
apply it as well.
    I will give you an opportunity to be able to say anything, 
if you want to, on that as well. I am not trying to shut you 
out.
    Mr. DuBester. I certainly agree with your representation 
about the importance of precedent and stare decisis and the 
rule of law, and as I mentioned, without any question, in that 
particular case that you asked about, that became----
    Senator Lankford. Right.
    Mr. DuBester [continuing]. The law of the case. That is how 
we acted, including myself, upon remand.
    The only point I was making is that, as you know, there are 
many circuit courts out there, and they do not always agree 
either.
    Senator Lankford. Right.
    Mr. DuBester. Sometimes there is a split among the 
circuits, and that raises questions about what the state of the 
law is too.
    Senator Lankford. That, we have seen as well, as recently 
as the last couple of weeks, even, in different well-
popularized cases, so----
    Mr. DuBester. But I would certainly be happy, though, as 
you suggested in your lead-in to follow up with you and/or your 
staff about it.
    Senator Lankford. Yes. I would be glad to, and again, we 
want you to be able to work independently. It is of great value 
to the Nation to have independent voices that do not all have 
to nod their heads the same way, to be able to have 
disagreement, have open argument, though at this dais, we all 
agree with every issue all the time. [Laughter.]
    That is not an issue for us.
    The nominees have made financial disclosures and provided 
responses to biographical and prehearing questions submitted by 
the Committee.\1\ Without objection, this information will be 
made a part of the hearing record,\2\ with the exception of the 
financial data, which are on file and available for public 
inspection at the Committee offices.\3\
---------------------------------------------------------------------------
    \1\ The information of Ms. Kiko appears in the Appendix on page 29.
    \2\ The information of Mr. Dubester appears in the Appendix on page 
77.
    \3\ The information of Mr. Abbott appears in the Appendix on page 
131.
---------------------------------------------------------------------------
    The hearing record will remain open until 12 p.m. tomorrow, 
November 8, 2017, for the submission of statements and 
questions for the record. We would encourage Members to hurry 
to be able to get that in so that we can walk through this 
process if there are any pending questions that are there.
    However, if Members wish to receive responses to questions 
prior to the Committee vote on Thursday, which we hope to do, 
they must submit questions for the record by 5 p.m. today.
    Again, thank you for your service already to the Nation and 
for being willing to be able to go through this process, for 
Mr. DuBester to go through this process again and again and 
again and again and again actually for you. Thank you very much 
for engaging with that.
    With this, this hearing is adjourned.
    [Whereupon, at 10:29 a.m., the Committee was adjourned.]

                            A P P E N D I X

                              ----------                              

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


                                 [all]