[Senate Hearing 117-412]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 117-412

                NOMINATIONS OF HON. ERNEST W. DUBESTER,
                      HON. SUSAN T. GRUNDMANN, AND
                            KURT T. RUMSFELD

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS


                             FIRST SESSION
                               __________

         NOMINATION OF HON. ERNEST W. DUBESTER TO BE A MEMBER,
                   FEDERAL LABOR RELATIONS AUTHORITY,
         HON. SUSAN T. GRUNDMANN TO BE A MEMBER, FEDERAL LABOR
        RELATIONS AUTHORITY, AND KURT T. RUMSFELD TO BE GENERAL
               COUNSEL, FEDERAL LABOR RELATIONS AUTHORITY

                               __________

                            OCTOBER 20, 2021

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

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs
        
        
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                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
47-979PDF                 WASHINGTON : 2022         


        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
ALEX PADILLA, California             MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                     JOSH HAWLEY, Missouri

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
                      Claudine J. Brenner, Counsel
                    Nikta Khani, Research Assistant
          Anthony J. Papian, Senior Professional Staff Member
                Pamela Thiessen, Minority Staff Director
    Andrew Dockham, Minority Chief Counsel and Deputy Staff Director
       Amanda H. Neely, Minority Director of Governmental Affairs
                   Samantha Onofry, Minority Counsel
  James D. Mann, Minority Staff Director, Subcommittee on Government 
                    Operations and Border Management
                     Laura W. Kilbride, Chief Clerk
                     Thomas J. Spino, Hearing Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Sinema...............................................     1
    Senator Lankford.............................................     1
    Senator Peters...............................................    11
    Senator Rosen................................................    13
    Senator Hawley...............................................    15
Prepared statements:
    Senator Sinema...............................................    21
    Senator Lankford.............................................    22

                               WITNESSES
                      Wednesday, October 20, 2021

Hon. Ernest W. DuBester to be a Member, Federal Labor Relations 
  Authority
    Testimony....................................................     2
    Prepared statement...........................................    23
    Biographical and professional information....................    25
    Letter from U.S. Office of Government Ethics.................    46
    Responses to pre-hearing questions...........................    49
Hon. Susan T. Grundmann to be a Member, Federal Labor Relations 
  Authority
    Testimony....................................................     3
    Prepared statement...........................................    67
    Biographical and professional information....................    68
    Letter from U.S. Office of Government Ethics.................    87
    Responses to pre-hearing questions...........................    91
Kurt T. Rumsfeld to be General Counsel, Federal Labor Relations 
  Authority
    Testimony....................................................     4
    Prepared statement...........................................   104
    Biographical and professional information....................   107
    Letter from U.S. Office of Government Ethics.................   129
    Responses to pre-hearing questions...........................   132

                                APPENDIX

Letter of support from American Federation of Government 
  Employees......................................................   146
Letter of support from National Treasury Employees Union.........   148

 
                             NOMINATIONS OF
                       HON. ERNEST W. DUBESTER,
                    HON. SUSAN T. GRUNDMANN, AND
                          KURT T. RUMSFELD

                              ----------                              


                       TUESDAY, OCTOBER 20, 2021

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:31 a.m., via 
Webex, Hon. Kyrsten Sinema, presiding.
    Present: Senators Peters, Hassan, Sinema, Rosen, Ossoff, 
Portman, Lankford, Scott, and Hawley.

              OPENING STATEMENT OF SENATOR SINEMA

    Senator Sinema. The Committee will come to order.
    I welcome my fellow Members of the Committee. Today, we are 
considering three nominations for the Federal Labor Relations 
Authority (FLRA): Ernest DuBester and Susan Tsui Grundmann to 
be members and Kurt Rumsfeld to be the General Counsel (GC).
    I welcome all of you as well as your family members 
watching online with us today. Congratulations on your 
nominations and thank you for your willingness to take on these 
critical positions. I look forward to hearing more about your 
qualifications and your plans to lead this agency.
    We do have a vote scheduled this morning at 11 a.m. So in 
the interest of time, I will submit my opening statement for 
the record.\1\
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Sinema appears in the 
Appendix on page 21.
---------------------------------------------------------------------------
    With that, I will call on Ranking Member Lankford for him 
to begin with his opening statement.

             OPENING STATEMENT OF SENATOR LANKFORD

    Senator Lankford. Thank you as well, Senator Sinema. I will 
also submit my opening statement for the record\2\ for the 
benefit of our time so we can move on directly to our 
witnesses. Thank you for being here today.
---------------------------------------------------------------------------
    \2\ The prepared statement of Senator Lankford appears in the 
Appendix on page 22.
---------------------------------------------------------------------------
    Senator Sinema. Thank you, Senator.
    Now it is the practice of this Committee to swear in 
witnesses, so, witnesses, if you will please stand and raise 
your right hand.
    Do you swear that the testimony you will give before this 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you, God?
    Mr. DuBester. I do.
    Ms. Grundmann. I do.
    Mr. Rumsfeld. I do.
    Senator Sinema. Thank you. We will now hear from our 
nominees, and I will ask each of our nominees to keep their 
remarks to 5 minutes. Your full written statements will be 
entered into the hearing record.
    Our first nominee is Ernest DuBester. Mr. DuBester has been 
a member of the FLRA since 2009 and has been unanimously 
confirmed by the Senate 3 times during that period. He has 
worked with both Democratic and Republican Presidents and board 
members and has over 45 years of experience in Labor-Management 
Relationships.
    Welcome, Mr. DuBester, and you are recognized for five 
minutes.

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

    Mr. DuBester. Thank you, Madam Chair and Ranking Member 
Lankford, Members of the Committee. I greatly appreciate the 
opportunity to come before this Committee again for its 
consideration of my nomination. I also want to thank the 
Committee staff for their work and assistance in reviewing my 
nomination and scheduling this hearing.
---------------------------------------------------------------------------
    \1\ The prepared statemenet of Mr. Dubester appears in the Appendix 
on page 23.
---------------------------------------------------------------------------
    As I have told the Committee before, I would also like to 
mention that this body holds a special personal meaning in my 
life because when I met my wife of now 33 years, Karen Kremer, 
she was working for the Senate Judiciary Committee.
    I also want to recognize the dedicated public servants from 
the FLRA. They are the key to the FLRA's many accomplishments 
over the years, and if confirmed, I will continue to make their 
morale and engagement a high priority.
    As you mentioned, Madam Chair, this is, well actually, the 
sixth time I have had the privilege to come before the Senate 
after being nominated now by four Presidents for positions of 
public trust. As you mentioned, Madam Chair, this is the fourth 
time I have had the honor to come before this Committee after 
now being renominated by President Biden.
    As I often say, the FLRA is a small agency with a large 
mission. It has the statutory responsibility to provide 
leadership and guidance for the Labor-Management Relations 
programs throughout the Executive Branch. The FLRA's work can 
have meaningful rippling effects. If the FLRA is not performing 
well, or is performing well, this enables other agencies to 
more effectively and efficiently resolve their disputes and, 
consequently, to focus their time and energy on their own 
agency's mission accomplishment.
    As you mentioned, Madam Chair, I have a lot of experience. 
I am trying to mature gracefully. But I have worked as a public 
servant, an advocate, a mediator and arbitrator, and an 
academic, and over 30 of my 45 years of Labor-Management 
Relations experience 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. If 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.
    So again, I appreciate the opportunity to appear before you 
this morning, and I would be pleased to answer any questions 
that you have.
    Senator Sinema. Thank you so much.
    Our next nominee is Susan Tsui Grundmann. Ms. Grundmann has 
spent the past 5 years as the Executive Director of the Office 
of Congressional Workplace Rights (OCWR), where she has 
overseen a complete modernization of the office operations. 
During her tenure, the Office received bipartisan support to 
increase the size of the staff and the budget. Previously, she 
was the Senate-confirmed Chair of the Merit Systems Protection 
Board (MSPB), where she issued more than 8,000 decisions.
    Welcome and you are recognized for 5 minutes.

TESTIMONY OF THE HONORABLE SUSAN T. GRUNDMANN,\1\ NOMINATED TO 
         BE A MEMBER, FEDERAL LABOR RELATIONS AUTHORITY

    Ms. Grundmann. Good morning. Thank you, Madam Chair, 
Ranking Member Lankford, and distinguished Members of this 
Committee. It is my honor and privilege to be here with you 
today. I thank you and your staff for taking the time out to 
review my qualifications for this position.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Grundmann appears in the Appendix 
on page 67.
---------------------------------------------------------------------------
    I also thank the staff of the FLRA for their administrative 
and logistic support and patience during this process, and I 
humbly thank President Biden for nominating me to serve in the 
capacity as a member of the FLRA.
    I am the first generation in my family to be born in this 
country. My parents are both from China, and they gave me my 
center. At my center is my family: My mother is still very much 
with me today and hopefully taking this in virtually. My 
husband of almost 30 years, Karl, continues to inspire me daily 
to be a better lawyer and a kinder human being. And our 
daughter, Milla, who always keeps me humble.
    Looking back from where I started, I have come full circle. 
I began my career in the Federal labor movement and my 
representation of employees, including air traffic controllers 
at the National Air Traffic Controllers Association (NATCA) 
and, later, employees throughout the Executive Branch at the 
National Federation of Federal Employees (NFFE). After 
representing unions, I became a third-party neutral as member 
and chair of the MSPB and found myself sitting at the head of a 
table of a Federal agency with a union of its own. Today, as 
executive director to a nonpartisan Legislative Branch office, 
I work for you, to administer the Congressional Accountability 
Act (CAA) and the labor management program for congressional 
employees, which is a parallel program to the FLRA.
    Along the way, I built coalitions of various interests, 
forged ties with both labor and management, and found 
friendships across the aisle. Through it all, I have had the 
opportunity to experience Labor-Management Relations from all 
perspectives and to appreciate the complexity and the richness 
that is inherent in this community.
    If confirmed, I hope to bring these diverse viewpoints to 
the FLRA. Thank you for the privilege of your time, and I look 
forward to your questions.
    Senator Sinema. Thank you so much, Ms. Grundmann.
    Our final nominee is Kurt Rumsfeld. Mr. Rumsfeld has almost 
30 years of experience in the labor-management field, with the 
last 8 at FLRA, where he served as the Assistant General 
Counsel. He left a private sector career because of his 
commitment to public service, and he is a respected manager at 
FLRA. His expertise is on the labor-management statutes and 
managing a legal staff of the FLRA.
    Welcome, Mr. Rumsfeld, and you are recognized for five 
minutes.

   TESTIMONY OF KURT T. RUMSFELD,\1\ NOMINATED TO BE GENERAL 
           COUNSEL, FEDERAL LABOR RELATIONS AUTHORITY

    Mr. Rumsfeld. Madam Chair, Ranking Member Lankford, and 
Members of the Committee, I thank you for the opportunity to 
appear before the Committee for the purpose of being considered 
for confirmation to the position of General Counsel at the 
Federal Labor Relations Authority. It is a true honor to be 
nominated for this position.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Rumsfeld appears in the Appendix 
on page 104.
---------------------------------------------------------------------------
    I am a strong believer in the value of public service, the 
policies promoted by the Federal Service Labor-Management 
Relations Statute, and the vital role played by the Office of 
General Counsel (OGC) in administering and enforcing the 
statute. The FLRA's General Counsel is responsible for 
protecting and enforcing employee, union, and agency rights 
under the statute by investigating unfair labor practice (ULP) 
charges and prosecuting ULP complaints. The general counsel 
also has direct authority over, and responsibility for, all 
employees in the Office of General Counsel, including the 
FLRA's regional offices which handle representation matters 
before the Authority.
    In furtherance of its mission, the Office of General 
Counsel offers clear, accurate, and readily accessible training 
and guidance to employees, unions, and agencies regarding their 
labor relations rights and responsibilities. It also offers 
assistance to parties in resolving their disputes regarding 
those matters in a fair, consistent, and timely manner.
    As I noted in my written responses to the Committee's 
questions, the OGC currently faces a number of substantial 
challenges. The FLRA has not had a Senate-confirmed general 
counsel since January 2017, and it lacked an acting general 
counsel between November 2017 and March 2021. This has resulted 
in a significant backlog of unfair labor practice charges for 
which complaints could not be filed and litigated in the 
absence of a general counsel and, as well as, a backlog of 
appeals from dismissals of ULP charges which could not be 
decided.
    Another challenge is the reduction of full-time equivalent 
employees that the OGC has endured over the last several years. 
Inadequate staffing obviously affects the OGC's ability to 
address the ULP backlog, particularly since the OGC has lost 
attorneys who had experience litigating ULP complaints, but it 
has also adversely affected employee morale. Thanks to the 
considerable efforts of the OGC employees under the leadership 
of Acting General Counsel Charlotte Dye, the OGC has begun to 
effectively address this backlog.
    If I am confirmed as general counsel, I will primarily 
devote my attention to addressing and meeting those challenges. 
I am confident that my prior service as the OGC's Assistant 
General Counsel for Operations and Legal Policy, and my 
subsequent tenure as FLRA Chairman DuBester's chief counsel, 
have equipped me with the operational knowledge, working 
relationships, and technical skills that will allow me to begin 
this process on day one of my service as general counsel.
    This will include meeting immediately with the OGC's career 
leadership to assess the current status of pending cases, 
including a candid evaluation of the procedures that have been 
employed to date to address the backlog. It will also include a 
thorough review of procedures that have worked well in 
addressing past backlogs, with the goal of developing a 
comprehensive case management plan under my direction. And 
working with OGC's leadership, career staff, and employee 
representatives, I will finalize and implement this plan as 
soon as possible. While focusing on this challenge, I will also 
work to ensure that the OGC's regional offices have the 
personnel and resources needed to effectively address the 
backlog while continuing to meet in a fair, consistent, and 
professional manner the additional responsibilities of the 
OGC's mission, including the timely processing of newly filed 
cases.
    I joined the ranks of the FLRA in 2013, after practicing 
labor and employment law for 17 years with a private law firm. 
In my new position with the FLRA, I was instantly impressed 
with the professionalism of the OGC's employees and the 
Authority's employees and their dedication to the core 
principles articulated in our agency's governing statute. As I 
have continued my service with the FLRA, I have developed a 
deep respect and admiration for employees at all levels of the 
Federal workforce and the vital importance of the services 
their agencies provide to the American people. These insights 
have informed the actions I have taken as an FLRA employee, and 
they will continue to guide me as general counsel if I am 
confirmed to this position.
    I wish to express my appreciation to the Committee and 
staff for making this hearing possible, and I look forward to 
answering any questions.
    Senator Sinema. Thank you, Mr. Rumsfeld.
    Now we will begin the question portion of the hearing. 
There are three questions the Committee asks of every nominee, 
and I will ask each of you to respond briefly with just ``yes'' 
or ``no.'' First, is there anything you are aware of in your 
background that might present a conflict of interest with the 
duties of the office to which you have been nominated? Mr. 
DuBester.
    Mr. DuBester. No.
    Senator Sinema. Ms. Grundmann.
    Ms. Grundmann. No.
    Senator Sinema. Mr. Rumsfeld.
    Mr. Rumsfeld. No.
    Senator Sinema. Second, do you know of anything personal or 
otherwise that would in any way prevent you from fully and 
honorably discharging the responsibilities of the office to 
which you have been nominated? Mr. DuBester.
    Mr. DuBester. No.
    Senator Sinema. Ms. Grundmann.
    Ms. Grundmann. No.
    Senator Sinema. Mr. Rumsfeld.
    Mr. Rumsfeld. No.
    Senator Sinema. Last, do you agree without reservation to 
comply with any request or summons to appear and testify before 
any duly constituted committee of Congress, if confirmed? Mr. 
DuBester.
    Mr. DuBester. I do.
    Senator Sinema. Ms. Grundmann.
    Ms. Grundmann. I do.
    Senator Sinema. Mr. Rumsfeld.
    Mr. Rumsfeld. I do.
    Senator Sinema. Thank you. Now each Senator will receive 7 
minutes for questions. I will start by recognizing myself with 
questions.
    I would like to start today with Mr. Rumsfeld. Currently, 
the FLRA has a backlog of approximately 275 unfair labor 
practice cases. The Office has also lost almost half of its 
attorneys in the past few years. The challenge to address the 
backlog with diminished staff will confront our nominees on day 
one. What steps do you plan to take to resolve this challenge?
    Mr. Rumsfeld. Thank you. As I mentioned in my opening 
statement, this is going to be my first priority, if confirmed 
as General Counsel. As I noted, I plan on meeting with OGC's 
leadership to review the procedures that have been utilized 
thus far to address the backlog and also the status of the 
backlog itself. They have made some inroads in addressing the 
backlog, and I think we can learn from the experience thus far 
with respect to how the process, procedures have been working.
    I also believe strongly in the value of looking at how past 
backlogs were handled by prior general counsels. When I was 
Assistant General Counsel, I did have the opportunity to review 
procedures that were put into place by my predecessor, Julie 
Clark, former general counsel, which included an assessment of 
the current complaints that were pending and also a triaging 
and scheduling of hearings for complaints based on a calendar 
basis where, for instance, the complaints that were filed in a 
particular region were calendared at the same time for 
efficiency's sake.
    I have full confidence in the OGC's attorneys and staff and 
leadership, and as I mentioned in my opening statement, once I 
undergo and complete this review, I will work with the OGC's 
staff and employee representatives to implement this plan as 
soon as possible.
    I also have a keen focus on restoring the number of full 
time employees that I think are necessary within the OGC to 
address this backlog. That will not be as immediate of a 
response as addressing the backlog of complaints, but to me it 
is equally important.
    Senator Sinema. Thank you, Mr. Rumsfeld.
    My next question is for Ms. Grundmann. What have you 
learned from your position as the Executive Director of the 
Congressional Office of Workplace Rights that you will bring to 
the FLRA, and does the FLRA have a role in replicating any of 
the lessons from the Executive Branch?
    Ms. Grundmann. What have I learned? I have learned that 
when given a timeframe of 6 months to implement an overhaul of 
the Agency, you can do it and you can do it with the proper 
resources and the proper personnel. We had an amazing team at 
the time it was called--the Office of Compliance. We built it 
pretty much from ground-up. What I have learned is to build 
teams, to build coalitions, and to set timelines and 
timeframes, and hold yourself to them. We can do that wherever 
we go.
    In terms of bringing the FLRA into the mix, this is the 
kind of work that we do now. We do handle the labor complaints, 
representational petitions, negotiability appeals of the 
Legislative Branch, and it is a fair and efficient system. And 
I hope to, if confirmed, replicate that at the FLRA.
    Senator Sinema. Thank you.
    Mr. DuBester, while at the FLRA, you issued more than 2,000 
decisions. Previously, you chaired the National Mediation Board 
(NMB) and worked at the National Labor Relations Board. With 
more than 45 years of experience in labor-management law, you 
are an expert in the field. Such success requires an ability to 
work with others who may not share your political views. What 
lessons have you learned about being able to work in a 
bipartisan way to fairly adjudicate cases, and how will you 
continue this work if confirmed to the FLRA again to ensure 
that it remains an impartial body?
    Mr. DuBester. I have found that the need to work with all 
of your colleagues in a collegial and collaborative way is 
crucial to effective performance, and I have done that actually 
since I was a very young man, since you referred to my first 
experience out of law school, Madam Chair, which was at the 
National Labor Relations Board. I happened to work for a 
Democrat, if you will, member. Yet, we worked very collegially 
and collaboratively, staff to staff--and I was a young staff 
attorney then--with the staffs representing Republican members. 
And so I found even there at an early age, in terms of 
enhancing the NLRB's mission performance, from the board side 
on which I was working, that was absolutely crucial.
    As a Presidential appointee--and I have had the privilege 
of serving in leadership positions now, as you mentioned, at 
two different independent agencies for over 20 years--I have 
worked, of course, with many Republican colleagues. I have 
always had very good personal and professional relationships 
going back to the NMB. We dealt with many, among other things, 
very serious, high-profile collective bargaining disputes in 
the airline and railroad industries, disputes that had 
potentially a major impact on our country's economy and on our 
nation's--well, all of our citizens. I needed to work to be 
effective with some cabinet-level agencies, 
like Department of Transportation (DOT) and Department of Labor 
(DOL) and, of course, the White House.
    So, you cannot work effectively if you do not work with all 
of your colleagues, whether they happen to be Democrats or 
Republicans. In my current position at the FLRA, as I mentioned 
in my questionnaire, I have now served with a total of four 
Republicans. I have been in the minority for the last 3 or 4 
years, but for the early 8 years, I was in the majority. I had 
a very purposely constructive, collegial, collaborative 
relationship with both of my Republican colleagues during that 
time. We did not agree on everything, but quite frankly, we 
agreed on most things and certainly on many things.
    When they left, I think we were not only colleagues who 
respected one another, but we were friendly and personally 
friendly. One of those colleagues actually went on to become 
Deputy Secretary of Labor in President Trump's recent 
administration, and I got a call from him after President Biden 
renominated me to be chair.
    So going forward, I will continue to do what I have done. 
We will work collaboratively with all the Presidential 
appointees and their staffs to help them to do their jobs 
better, to respect the fact that we may have differences of 
opinion on certain policy matters and certainly on cases. But I 
understand that it is very crucial to the operations and 
performance of the FLRA in all respects, including with our 
request for budget and appropriations approval which, of 
course, is a very serious matter, as all of the members of this 
Committee know and appreciate.
    It is a very important matter to me, and I take pride, I 
think, in the record that I have had in my 20 years of 
leadership. Thank you.
    Senator Sinema. Thank you.
    My time is expired, and I would now like to turn the time 
to our Ranking Member, Senator Lankford, for his questions for 
the panel. Thank you.
    Senator Lankford. Senator Sinema, thank you.
    To the three nominees, thank you for stepping up to be able 
to do this. You all know the sacrifice that it takes to be able 
to go through a nomination process and the challenges and the 
unique difficulties.
    I want to be able to do some general questions and some 
specific questions as we walk through this. The first question 
is we are trying to figure out how to be able to deal with the 
backlog issues that are ongoing. Obviously, Mr. Rumsfeld, you 
have already addressed some of these things with the backlog. I 
would like to be able to deal with the other two nominees here 
actually being on the board there on what will deal with the 
backlog and the number of cases being able to move through and 
just the speed of those cases.
    There is a couple questions here. One is the number of 
cases that you consider backlogged at this point and then the 
speed of actually answering decisions to make sure they get a 
fair decision quickly. Mr. DuBester, you want to go first on 
that?
    Mr. DuBester. I do. Again, it is a very important 
consideration because I think as part of our public service 
obligations in the labor-management community we have a 
statutory responsibility to try to move cases as quickly as 
possible. In the last year, since I became chair, on the one 
hand we have moved a lot of decisions. We have moved about 120 
cases. Half closed. I think we are on pace to exceed the total 
number that issued last year, but I know that we have a lot of 
cases in the pipeline.
    In 2009, I will refer you back when I first came into the 
FLRA, Ranking Member Lankford. We had a much larger backlog. It 
was of even more serious degree. We put into effect what I call 
a critical action plan. It was with time targets. Basically 
what it did, as simply as possible, was it tried to harmonize 
targeting cases that were really old, what I would say fairly 
characterizes in a backlog but also not ignoring new filings. 
That is always the issue. If you focus your undivided attention 
on only cases that are old, then the new filings come in.
    I think going forward we will take an assessment 
immediately to see how many we have. I do not think our 
backlog--and I do not mean to be casual about this because any 
case that is old, to me, is a serious matter. But I do not 
think our backlog is as serious as I have seen it before. Like 
I said, our case closings even this year are matching what they 
did in recent years. But I will take an assessment of where we 
stand on that and try to come up with what I believe is a 
reasonable critical action plan that avoids us developing a 
bigger backlog. Very important matter.
    Senator Lankford. Mr. DuBester, let me ask you a quick 
question. What do you consider an old case? How many days old? 
Because about just a little less than half the cases are taking 
over a year to be able to resolve. So what would you consider 
is a timely decision?
    Mr. DuBester. My personal view is different than what I 
would say our performance goals have been, but our performance 
goals, we have had two targets. We have had targets for 210 
days, and then we have had the year target, 365 days. I think 
we can do better than that, certainly better than 365.
    There are lots of reasons, as I am sure you appreciate from 
your experience, Ranking Member Lankford, as to why cases get 
held. Each member has a prerogative to handle a case and to 
bring a certain idea into a case's decision, and I would not 
even assume that this breaks down between what I would call 
Republican and Democratic members, that sometimes members from 
the same party have different views and they want to say 
something. They want to address something. It is that back and 
forth among offices that often adds to the delay. I think we 
are all committed, notwithstanding matters that we raise, to 
our responsibility to move cases as quickly as possible.
    I think I had mentioned before one of the mechanisms that 
we have employed that I think is very helpful is we have 
regular weekly meetings of each member's Chief Counsel and 
Deputy Chief Counsel. That has been a practice for quite a 
while. At those meetings, they prioritize and target cases for 
issuance. I think that is very helpful.
    But, to me, I would say there is no good reason why a 
decision should be more than 6 months old. Where we have a 
number of cases that are older than that, even if they are 
going to need the 365 days, I think that is regrettable, and I 
would commit to doing much better.
    I will give you another example, just as an example of 
something I did as chair at another agency, along the same 
line. At the National Mediation Board, we are probably the 
largest designating agency of arbitrators to resolve disputes 
involving airline and railroad industries. What I did was if 
arbitrators had cases involving those industries and their 
employees, if they did not issue their awards within 6 months, 
I did not allow them to receive new cases because I thought it 
was that important to the parties, the labor-management 
communities.
    This is a matter that I take very seriously, I think is 
very important. I believe in the old law school maxim about 
``Justice delayed is justice denied.'' I commit that I will do 
everything I can to keep working hard on that and improving our 
performance where it is not what perhaps it should be.
    Senator Lankford. Yes, that would be very significant, 
obviously, because there have been so many cases that have been 
past the 365 days, not just in the last year where we 
understand a lot of dynamics around Coronavirus Disease 2019 
(COVID-19), but reaching back to 2018 and on. This seems to be 
a pretty consistent issue for it to be able to take longer.
    The FLRA has also been ranked as 24th of 29 in agencies as 
far as the best places to work among the agencies. You had 
mentioned in some of your previous comments on that that those 
things go up and down, and that is true on that. What can be 
done to make the FLRA a better place to be able to work, and do 
you think leadership has a responsibility in that?
    Mr. DuBester. I think leadership definitely has a response 
on that. Again, that is something that is very central to my 
concern and priority. As I often say--and I do not mean this to 
suggest that it is easy. But I often say that it involves very 
basic kinds of actions and behaviors.
    First off, what I would say is employees, our staff, need 
to know that the work they do is important and valued and so 
that leadership, in other words, believes in the mission of the 
Agency. That is No. 1.
    No. 2, I believe it is very important for all staff--and 
when I say ``all staff,'' I mean managers as well as non 
managers. Managers and employees. They need to know that they 
have input. They need to know that they have a voice on the 
direction of the Agency. It does not mean that decisionmakers, 
like people like myself in leadership positions, are going to 
accept all their advice or all their suggestions, but they have 
to know that their input is meaningful and real and that, if 
possible, we will take their advice.
    I say this in any workplace context. A lot of times 
employers will say, well, the employee morale is not our 
problem, and it definitely is management's problem. Whether it 
is the private sector in their concerns about productivity or 
whether it is about the public sector such as the Federal 
sector, it is about performance. An employee workforce that is 
motivated, whose morale is high, who is engaged in the work 
they do, their performance is going to be great.
    I know every Member of this Committee, in various ways, 
cares deeply about the services of all Executive Branch 
agencies and how they are provided to our citizens. I say again 
an engaged, motivated workforce is one of the best recipes for 
increasing the performance at any agency, and that includes the 
FLRA.
    We will work on that. We will show that we are concerned 
about their professional development by offering training and 
skills development kinds of opportunities, which we have done. 
We will share information. Information sharing is also key. Try 
to be as transparent as we can, in as timely a way as we can.
    I was chair previously in 2013, which, as you might recall, 
was the first year of sequestration. That was a very tough year 
in the Federal Government because of the budgetary and fiscal 
constraints that were imposed. I had regular meetings with the 
entire agency, sharing with them what our options were, what we 
were dealing with, the belt-tightening that we had to go 
through. They did not like a lot of what we had to report and 
say, but they appreciated that we were sharing the information 
and perhaps they had the opportunity to comment on it.
    So going forward, I will continue that----
    Senator Lankford. Mr. DuBester, let me interrupt you real 
quick because we are over time on this. I want to respect 
everyone's time also on this.
    Mr. DuBester. I apologize.
    Senator Lankford. That is all right.
    Chair Sinema, if there is an opportunity, I would like to 
ask one more question at the very end, but I do want to defer 
my time.
    Senator Sinema. Sure. Absolutely. Thank you for that.
    I would like to recognize Chairman Peters for his 
questions.

              OPENING STATEMENT OF SENATOR PETERS

    Chairman Peters. Thank you, Senator Sinema. Thank you for 
chairing this hearing here today.
    Congratulations to each of the nominees for your nomination 
and your willingness to serve our country. The FLRA must play a 
leadership role in ensuring that agencies can achieve and 
maintain stable and productive Labor-Management Relations to 
truly honor the employees' right to organize and to 
collectively bargain as is fully protected under Federal law.
    Mr. DuBester, my first question for you is: What are some 
of the ways the FLRA educates agencies and employees about 
their rights and responsibilities, and are there other outreach 
strategies that you plan to pursue, if confirmed?
    Mr. DuBester. Again, another very important issue. You are 
addressing what I call the external dimension whereas Ranking 
Member Lankford previously was raising the internal dimension. 
I think it starts with sharing information, Mr. Chairman. We 
provide information as much as we can on our website. It has 
guidance from each of our components. It has some of the 
training sessions that we have given in various areas.
    We have a tradition of offering training on many subjects 
including basic statutory rights and responsibilities. During 
the first 8 or 9 years of my tenure at the FLRA, we often did 
training in conjunction with another agency, the Federal 
Mediation and Conciliation Service (FMCS), where they would be 
providing training in relationship building kinds of endeavors 
and we would provide on basic statutory rights and 
responsibilities. So training, to me, is very important.
    We have provided over the years in a couple of other key 
areas involving two of the four kinds of cases that we have the 
responsibility to handle, and those are arbitration and 
negotiability. We had initiatives in that arena early in my 
tenure, and part of the initiative included, No. 1, putting 
guides on our website again, Mr. Chairman. We still have those 
guides on the website: the guide to dealing effectively with 
arbitration in the Federal sector and the guide to 
negotiability.
    We have also given live, in-person training, of course, up 
until about a year and a half year ago because unfortunately 
the pandemic really has interfered with all of our lives in the 
way that we live and work. But we have done a lot of training 
[audio interruption].
    Chairman Peters. He is gone.
    Senator Sinema. Chairman Peters, it looks like we might 
have lost Mr. DuBester for a moment. Why don't you proceed to 
your next question, and when Mr. DuBester comes back we will 
resume with him.
    Chairman Peters. That is a good idea, Madam Chair.
    Actually, the same question to Ms. Grundmann and Mr. 
Rumsfeld. If you have some additional thoughts on how the FLRA 
can use outreach and education to strengthen Labor-Management 
Relations, I would certainly love to hear your thoughts. Ms. 
Grundmann, do you want to be first?
    Ms. Grundmann. Yes, sir. When I was at the MSPB, we did a 
significant amount of outreach with our sister agencies, and 
through that connection between all of our agencies, that 
cross-training improved. I certainly would welcome an 
opportunity to work not only with other agencies, if confirmed, 
but also set up panels between all the agencies to talk about 
the various ways that we can reach out.
    One of the things I do want to point out is the FLRA is 
partnering with the Office of Personnel Management (OPM) as we 
speak to conduct a virtual town hall, if you will, at the end 
of this month in terms of the Executive Order (EO). So that is 
another means. With the virtual world that we live in, it 
actually gives us, strangely enough, an opportunity to reach 
more people on a broader basis. I think that continues on and 
on.
    I see Mr. DuBester is back. So thank you.
    Senator Sinema. Mr. DuBester----
    Chairman Peters. Let us----
    Senator Sinema. Go ahead. Thanks. Chairman Peters, yes.
    Chairman Peters. Yes, Madam Chair, why don't we have Mr. 
Rumsfeld just in the remaining time give me an answer, please.
    Mr. Rumsfeld. Yes, thank you. I am a strong believer in the 
training that the OGC has traditionally provided. I was 
actually a participant in a lot of that training when I was 
assistant general counsel, training to both unions and agencies 
regarding unfair labor practice issues and representation case 
issues.
    As the chairman, Chairman DuBester, mentioned, OGC 
publishes online all of the case handling manuals for ULP and 
rep cases as well as guidances on particular issues that often 
come up in the context of unfair labor practices. While I was 
at the Office of General Counsel, I was involved in creating a 
new substantial guidance on meetings, bypass issues, Weingarten 
issues, formal discussions, which gave an overview of the 
Authority's case law governing those matters. I also would 
recognize that the OGC has just recently put up some very 
creative online modules related to ULP issues in which the 
parties can take at their convenience, and I fully intend on 
continuing in developing that type of training as well.
    Also, the cross-component training is important to me. I 
actually participated in training activities with the FMCS 
while I was at OGC. We did some training on, for instance, 
issues arising in office moves and relocations.
    I continue to believe that is essential, and I will 
continue those efforts if confirmed as general counsel.
    Chairman Peters. Thank you. I would like to thank the three 
of you for your answers.
    My time is running out. Thank you, Madam Chair.
    Senator Sinema. Thank you, Chairman.
    I would like to recognize Senator Rosen for her questions.

               OPENING STATEMENT OF SENATOR ROSEN

    Senator Rosen. Thank you, Chair Sinema, Ranking Member 
Lankford.
    Thank you to all the nominees, of course, for being here, 
for your public service.
    I want to talk a little bit about Federal workforce 
recruitment and retention because in my nearly 3 years on this 
Committee we have examined critical skills gaps in the Federal 
workforce, particularly in the areas of information technology 
(IT) and cybersecurity. The Government Accountability Office 
(GAO) has included strategic human capital management on its 
High Risk List of 2001. Or since 2001, excuse me. There are a 
number of factors affecting the Federal workforce environment 
that, in turn, affect Federal agencies' abilities to recruit, 
hire, and retain qualified workers in high demand fields like 
IT and cyber jobs that require science, technology, 
engineering, and mathematics (STEM) skills.
    All of the nominees here today have extensive experience in 
Labor-Management Relations. I would like to ask each of you to 
comment on how the Federal Labor Relations Authority can 
positively influence the Federal work environment, make it 
easier for agencies to find and to hire the right people, 
especially in the high demand areas like tech, and if 
confirmed, how you will build on what the FLRA is doing in this 
space. Mr. Rumsfeld, maybe we can start with you.
    Mr. Rumsfeld. Yes, retention and recruitment is obviously a 
big concern I have, if confirmed, for the reasons I discussed 
in my opening statement. In my view, retention arises from 
employee engagement. There are certain things that we cannot 
control at Federal agencies, for instance, wages or benefits, 
but I believe there are a lot of tools at our disposal for 
creating enthusiasm for our mission by the people who work for 
us.
    I have always promoted an open-door policy as a manager. I 
believe that it is important for employees to understand 
primarily how their work contributes to the mission of the 
agency, to feel a part of it and to feel that they belong and 
that they are important. Then as a manager, I believe it is 
important to provide the tools and resources that allow 
employees to do their job and to give them the leeway and 
discretion to accomplish those missions.
    Senator Rosen. Perfect. Thank you.
    Ms. Grundmann, how would you build on what the FLRA is 
doing so we can retain and hire those tech professionals that 
we so desperately need?
    Ms. Grundmann. One of the major problems with retaining IT 
folks is really you are competing with the private sector. 
There is a resource issue. But I believe that an agency 
attracts talent by being known for an engaging environment and 
also for great productivity, and that is measured every year to 
OPM's Employee Viewpoint Survey.
    But an agency retains talented employees through 
engagement, as Mr. Rumsfeld was discussing. To change the 
relationship beyond a mere business transaction, where 
employees do the work in exchange for pay and benefits, to a 
heightened sense of commitment. And that comes when there is 
that connection to the work, to the purpose of the agency, and 
that comes through communication, transparency, accountability, 
and giving an employee a voice at the table, which is what the 
FLRA is about, through whether collective bargaining or outside 
of collective bargaining.
    Now I understand that employees cannot decide what work 
needs to be done, but certainly they should have a voice in how 
the work is accomplished, and that is impact and implementation 
bargaining. At the same time, agencies----
    Senator Rosen. I was going to say I just have a few minutes 
left. I wanted Mr. DuBester to try to see how we are going to 
add onto this, be sure that we keep and retain these high-in-
demand professions.
    Mr. DuBester. Thank you, Senator Rosen. As I indicated in 
my prior answer--so I am really just going to quickly echo what 
Kurt and Susan have said. I spoke at length about very basic 
actions and behaviors which go to everyone at the agency 
knowing that their work is valued, that their mission is 
important, that they have a voice. Those things sound very 
basic, but the word gets out.
    I will say this; it seems to me that you were really 
asking, of course, that we are a Labor-Management Relations 
agency, but it seemed like you were more interested--and, of 
course, this is Cybersecurity Awareness Month.
    Senator Rosen. Yes, it is.
    Mr. DuBester. It is a particularly good time for the 
question. But you were more interested in tech. Of course, 
being a small agency, we do not have dedicated budgets and 
resources for tech, but it is a very high priority, and we have 
a tech department. I might add that we are also blessed with 
the fact, coincidentally right now, that our Executive 
Director, which is our No. 1, if you will, non Presidential 
person at the agency, his background happens to be and his 
expertise happens to be in tech. He was formerly the director 
of our tech. So this is always a high priority.
    But I will tell you that in terms of attracting and 
retaining, in my experience now with 12 years at the FLRA, the 
nonmission-related employees, such as tech, people that are not 
a Labor-Management Relations professional, they learn about the 
environment and the atmosphere being created within an agency, 
and that is created by leadership. Again, as Kurt and Susan 
both said, if you get the reputation for being an agency that 
cares about its employees, that cares about their professional 
development, that lets them do their jobs well, that word gets 
out. We have drawn a lot of people over the years in nonlabor-
management relations jobs, including tech. I am very pleased 
with the tech department we have.
    I recommend to all my counterparts throughout the Executive 
Branch: Lead by example and you will do better with your 
attraction and retention of good people.
    Senator Rosen. Thank you. I see my time is up. I will 
submit the rest of my questions for the record about addressing 
the case backlog and getting people to work after the pandemic, 
Madam Chair.
    Senator Sinema. Thank you, Senator Rosen.
    I now recognize Senator Hawley for his questions.

              OPENING STATEMENT OF SENATOR HAWLEY

    Senator Hawley. Thank you very much, Madam Chair.
    Thanks to all of the witnesses for being here.
    Mr. DuBester, let me just start with you if I could. The 
FLRA is meant to be an independent, nonpartisan agency. I 
understand that there are three members but only one of them is 
a Republican. Today, we are considering your nomination to be 
appointed to another term is chair as well as the nominations 
of another member and a general counsel, but all of whom are 
appointed by or were appointed by Democrats. All of you have a 
long history of donating exclusively to Democratic elected 
officials.
    So here is my concern. That creates a situation where two 
thirds of the members are Democrats and three out of four of 
the most senior positions are occupied, or will be occupied, by 
Democratic appointees. Labor relations, of course, can be a 
very politicized topic, and for that we do not have to look any 
further than the Department of Labor's recent emergency 
guidance dictating vaccine mandates to all major employers, 
something that for the record I think they have zero legal 
authority to do, and I have written them to that effect.
    Here is my question for you: Can I just ask you to address 
this. Can you speak to the importance of the FLRA being a 
nonpartisan and independent entity, and can you explain how you 
would work to overcome any perception that the Agency is 
captured, has been captured or would be, by one political 
party?
    Mr. DuBester. I think your question is an important 
question, Senator Hawley. Just for clarity because I know you 
know this, but under the statute--and here is the statute. The 
way the statute works, of course--and this was done at least in 
part--I am not saying that you accept its adequate 
effectiveness. But with any President, whether Republican or 
Democrat, they have to have at least one member not of their 
party, and that is the way it works.
    Right now in fact, we happen to have two Republicans, not 
Democrats. The majority is still in the Republican hands. All 
three of us, myself included, were most recently nominated or 
renominated by President Trump. I just say that to clarify 
where we are today.
    But it is true that generally speaking and during my time, 
during President Obama's tenure, there were two Democrats and a 
general counsel appointed by him, one Republican, though. 
During President Trump's administration, of course, there were 
two Republican members and the general counsel position, 
unfortunately, was vacant, but that was President Trump's 
prerogative. I was the Democratic member.
    Now, depending on what this Committee decides to do and 
what the Senate decides to do, if you confirm the three of us, 
then as you suggest there will be two Democratic members again, 
but there will be a Republican member.
    What I would say--and I said this in a prior answer. I do 
not know whether you have heard it or not. But I have had the 
privilege of serving at 2 different independent agencies over 
20 years, and I have had several Republican colleagues. I have 
always had a collegial, collaborative relationship with them. 
Most of the time, we have agreed on things, both cases and 
policy. I think it is very important, regardless, to work 
collegially and collaboratively with all of the Presidential 
leadership.
    It is kind of similar to what I said about managers and 
employees and how you make a high performance agency. I think 
it is important for Presidentials as well. We happen to be in 
leadership positions, but I happen to think it is important for 
Presidentials to understand that they too have a voice, 
regardless.
    I will give you one example. I mentioned before how we 
meet. Our staffs meet regularly, weekly, to discuss cases and 
identify priorities. That is certainly going to continue 
whether we have a Democratically controlled or now we have a 
Republican majority.
    The other thing we do--I mentioned an action. I restored 
the operation of our alternative dispute resolution (ADR) 
program. I think that is a matter that is very important. I 
think it is a matter that should have nonpartisan, bipartisan 
support, and that is one of the best, to me, protections 
against politicized, if you will, kinds of decisions that you 
are concerned about. I share your concern because it is about 
avoiding and preventing disputes and giving parties input.
    But the point I want to make here is I restored a program 
that my two Republican colleagues, for the first time in 30 
years, had decided to do away with. But before I did that, I 
did not act unilaterally. I entered into a compromise protocol 
with my two colleagues that gave them the voice and input to 
approve which cases were referred for our, if you will, ADR 
program and its consideration. It is not what I would have 
done, but I agreed to it out of the same spirit that I hope and 
think you are suggesting, which is the spirit of collegiality 
and collaboration and not having, if you will, on a lot of 
operational matters the political one-sided kind of 
decisionmaking basis.
    Senator Hawley. Yes, very good. Thank you. I appreciate 
that answer. Thank you for that.
    Let me just follow up on that, to ask you about when you 
think it is appropriate for the FLRA to issue split decisions, 
in other words, to be governed by a split decision. What is the 
standard? Give me some window into your thinking about what the 
standard would be to take and move forward with a 2-1 decision.
    Mr. DuBester. I do not think there, it is interesting that 
you ask this because I previously came from the National 
Mediation Board, as you may know. The reason why I mention that 
is we issued some decisions there as well. But because of the 
mediatory function of the Agency, we had a longstanding 
tradition there of not issuing dissents, and that really was a 
challenge with three members. It does not matter whether they 
are Democrats or Republicans, I will say to you. Three members, 
period. Human beings.
    At the FLRA, as you know and understand, of course, we are 
a quasi-judicial body with adjudicative functions, and to that 
extent we are like a court. I think each member, while they are 
serving, has a right to vote on a case. A 2-1 decision is the 
decision. I think the standard is whatever the individual 
members, who are serving in a quasi-judicial capacity, say it 
should be. Those cases have issued.
    In my first 8 years, I would say we probably agreed among 
all three members somewhere well in excess of 75 percent of the 
time, but there were dissents there. In recent years, my 
colleagues I think have taken a different direction, which is 
their prerogative, and I dissented probably a little bit more. 
But the 2-1 majority, the majority has a right to take the 
positions and make the decisions that they want to make, and 
that becomes the law.
    I do not have a better answer than that, but I think that 
that is part of the [audio interruption]----
    Senator Hawley. Yes.
    Mr. DuBester [continuing]. That I think has most served our 
community well.
    Senator Hawley. Very good. My time is expired. I just want 
to say in closing I love it that you carry around the organic 
statute, the FLRA organic statute. Yes, that is great. Maybe I 
will have a question for the record for you about that.
    Madam Chair, thank you so much.
    Senator Sinema. Thank you, Senator Hawley.
    I would like to return to Senator Lankford for a final 
question.
    Senator Lankford. Thank you. We have run out of time 
because we actually have a vote going on right now. I want this 
to be brief though it is a significant question, and it is this 
issue of vaccine mandates.
    Obviously, the President has laid down an Executive Order. 
I have had quite a few folks that are in the Federal workforce 
that have contacted me, saying, hey, they are making petitions 
to their union. This is a change in what they perceive to be 
their collective bargaining agreement, that there is a new 
feature there that they were not aware of before that could 
actually remove them from their workplace.
    This is something that may very well come at you in the 
days ahead. I am trying to figure out how you will balance this 
out, what are the key features that you are going to look for, 
as we have Federal workers that will leave the workplace in the 
days ahead or will petition to say, I was not heard on my 
religious liberty issues or I was not heard on medical issues, 
whatever that may be, disputes that may happen on 
inconsistencies from one workplace to the other, as this is 
coming down.
    So my question is: How do you perceive that you are going 
to try to handle this? What are the key things that you are 
going to look for? Ms. Grundmann, I would like to start with 
you.
    Ms. Grundmann. Yes, thank you. I believe the Agency should 
engage its designated representative at the outset if possible. 
It is not always possible, but certainly that conversation 
needs to occur even if it is post hoc. It is appropriate, I 
think, that the parties have this discussion and potentially 
bargain over impact and implementation of any policy that came 
out as a result of the pandemic.
    I cannot say how I would vote in terms of a case that would 
come before us. Clearly, the fact and the precedent would drive 
any decision.
    I can tell you how I have implemented the policy in my 
office, and that is that we require vaccination certification 
of all employees and contractors, but we allow for exceptions 
based on disability and religion.
    Let me tell you why we did this because it is unique to our 
office. As you know, we administer the Congressional 
Accountability Act. The CAA incorporates among its 13 laws, 
actually 14 laws now, Title VII, which prohibits unlawful 
discrimination of certain protected classes. One of those 
classes is religion. The reason why we did this is we wanted to 
lead by example. We are the ones who are administering the 
statute, and we believe that we should recognize sincerely held 
religious beliefs in terms of the fact of whether to vaccinate 
or not.
    In addition to that, our office administers the 
Occupational Safety and Health Act (OSHA) and the Americans 
with Disabilities Act (ADA) for the legislative community, and 
we believe that kind of policy is reflected in the policy that 
we have implemented.
    Senator Lankford. OK. That is helpful to be able to get 
context on.
    It is interesting. In a 24-hour time period, I talked to 
the Office of Management and Budget (OMB). They said, we are 
going to honor religious, and we are not going to try to 
evaluate religious issues, how religious you are. Twenty-four 
hours later, I spoke with the Office of Personnel Management. 
They had an eight-item checklist to be able to determine if you 
are sincere enough in your beliefs and what issues may be to 
try to have that determination.
    This will be an issue that undoubtedly is coming because, 
agency to agency, they are going to differentiate on what it 
looks like to have a sincerely held belief or what it is--what 
the Centers for Disease Control and Prevention (CDC) is 
requiring versus what an individual physician is actually 
asking them. This is definitely coming because we are hearing 
quite a few in my office.
    Mr. DuBester, how will you handle this?
    Mr. DuBester. Yes, I will share with you--in one sense, we 
have been working on this for a while now, it seems, Ranking 
Member Lankford. One thing I will share with you, within the 
FLRA, even before the President issued his Executive Order 
mandating the vaccine, about 85 percent of our employees had 
already attested to having taken the vaccination.
    But we have had our own internal--of course, we--I know 
your reference to both OMB and OPM. We collaborate and look to 
them for some guidance, too. So of course, we need to have 
guidance. As you know, the Safer Federal Workforce Task Force 
has put a lot of questions and answers and guidance on their 
website.
    But we have had an internal pandemic task force for some 
time now. We have had a lot of discussion including everyone, 
managers and employees. In our human resources (HR) office and 
particularly our directors are trained and skilled and 
knowledgeable in the ways to handle requests for accommodations 
or exceptions along either the medical exception line or the 
religious line. So we are going----
    Senator Lankford. Mr. DuBester, if I could interrupt for a 
moment on that, this is so new. The guidances I have read 
through, the guidance that has been placed out there, there 
will be wide variations agency to agency, and even within 
departments within agencies, on how they are going to interpret 
the medical exceptions and the religious accommodations based 
on what has been placed out.
    Some are already saying ``the CDC has said,'' and that 
trumps a local doctor, that their own family physician may say 
for cancer treatments or whatever it may be we want you to be 
able to pause at this moment. I have had some Federal employees 
that have contacted me and said, our department or our agency 
is not hearing us out.
    The real question is trying to be able to balance out who 
is the decisionmaker in the process when there is a conflict. 
Is the CDC the decisionmaker or their local physician? Who 
interprets sincerely held religious beliefs? Is that their 
immediate supervisor, or is that someone else in the agency, or 
is it the individual?
    Mr. DuBester. Yes. Again, what I would say, Senator and 
this is not to be evasive. But again, as the Safer Federal 
Workforce Task Force has already acknowledged, these kinds of 
questions are going to be very fact-specific and context-
dependent.
    If we get matters, as Susan said, that come to us as cases, 
It is like a case that has not happened. We are going to 
approach it with an open mind and not make any prejudgments. 
You know, giving full, as full and fair consideration as we can 
to the situation that comes before us. I do not have any 
preconceived notions and would not want to render any advice on 
that subject.
    It is fair to say that we consult with, and get direction 
from, OMB and OPM. We will continue to do that. But even with 
that said, I mean, we are not going to create something out of 
whole cloth. But we are going to approach any matter that comes 
to us in this area like we do with any other case, with an open 
mind, give it full and fair treatment, and recognize perhaps 
that all these situations are not going to be alike. They are 
going to be--I think at least in this respect it makes sense to 
me, as the Safer Federal Workforce Task Force has said, that 
they are going to be very fact specific and context-dependent 
is the way they put it. And so we are going to approach them 
that way and try to give everybody a fair hearing.
    Senator Lankford. Thank you.
    I appreciate that, Chair Sinema, and I appreciate the final 
question wrap-up. This will be a bigger issue because this is 
an alteration of the collective bargaining agreement that 
individual members of the union were not a part of and that 
dialog that has now been imposed on them is a standard of 
employment that is new. There will be some additional 
challenges here.
    I am grateful I have been vaccinated. I am very grateful 
for the vaccine. The vast majority of Federal workers have been 
vaccinated, but there are some with questions that will have 
legitimate issues that will be very difficult to be able to 
process through.
    I appreciate the additional time on this. Thanks, Chair 
Sinema.
    Senator Sinema. Absolutely. With that, we have reached the 
end of today's hearing. I appreciate the nominees for their 
time and testimony, and I thank my colleagues for their 
participation.
    All three nominees have made financial disclosures\1\ and 
provided responses to biographical and prehearing questions 
submitted by this Committee.\2\ Without objection, this 
information will be made part of the hearing record with the 
exception of the financial data,\3\ which is on file and 
available for public inspection in the Committee offices.
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    \1\ The information of Mr. DuBester appears in the Appendix on page 
25.
    \2\ The information of Ms. Grundmann appears in the Appendix on 
page 68.
    \3\ The information of Mr. Rumsfeld appears in the Appendix on page 
107.
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    The hearing record will remain open until 12 p.m. tomorrow, 

October 21, for the submission of statements and questions for 
the record.
    This hearing is adjourned.
    [Whereupon, at 11:35 a.m., the Committee was adjourned.]

                            A P P E N D I X

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