<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:34234.wais]
ESTABLISHING A COMMISSION TO RECOMMEND IMPROVEMENTS FOR THE FEDERAL
EMPLOYEES APPEALS PROCESS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE FEDERAL WORKFORCE
AND AGENCY ORGANIZATION
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 11, 2006
__________
Serial No. 109-226
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
______
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of
PATRICK T. McHENRY, North Carolina Columbia
CHARLES W. DENT, Pennsylvania ------
VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont
JEAN SCHMIDT, Ohio (Independent)
BRIAN P. BILBRAY, California
David Marin, Staff Director
Lawrence Halloran, Deputy Staff Director
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on the Federal Workforce and Agency Organization
JON C. PORTER, Nevada, Chairman
JOHN L. MICA, Florida DANNY K. DAVIS, Illinois
TOM DAVIS, Virginia MAJOR R. OWENS, New York
DARRELL E. ISSA, California ELEANOR HOLMES NORTON, District of
KENNY MARCHANT, Texas Columbia
PATRICK T. McHENRY, North Carolina ELIJAH E. CUMMINGS, Maryland
JEAN SCHMIDT, Ohio CHRIS VAN HOLLEN, Maryland
Ex Officio
HENRY A. WAXMAN, California
Ron Martinson, Staff Director
Alex Cooper, Clerk
Mark Stephenson, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on July 11, 2006.................................... 1
Statement of:
Bransford, William L., general counsel, Senior Executives
Association; Colleen M. Kelley, national president,
National Treasury Employees Union; John Gage, national
president, American Federation of Government Employees,
AFL-CIO; and Karen Heiser, vice president, Federal Managers
Association Chapter 88..................................... 55
Bransford, William L..................................... 55
Gage, John............................................... 70
Heiser, Karen............................................ 90
Kelley, Colleen M........................................ 63
McPhie, Neil A.G., chairman, Merit Systems Protection Board;
William Tobey, Deputy Solicitor, Federal Labor Relations
Authority; Cari M. Dominguez, Chair, Equal Employment
Opportunity Commission; Scott Bloch, special counsel, U.S.
Office of Special Counsel; Nancy H. Kichak, Associate
Director, Strategic Human Resource Policy Division, Office
of Personnel Management; and Scot Beckenbaugh, acting
deputy director, Federal Mediation and Conciliation Service 8
Beckenbaugh, Scot........................................ 42
Bloch, Scott............................................. 28
Dominguez, Cari M........................................ 21
Kichak, Nancy H.......................................... 37
McPhie, Neil A.G......................................... 8
Tobey, William........................................... 16
Letters, statements, etc., submitted for the record by:
Beckenbaugh, Scot, acting deputy director, Federal Mediation
and Conciliation Service, prepared statement of............ 44
Bloch, Scott, special counsel, U.S. Office of Special
Counsel, prepared statement of............................. 30
Bransford, William L., general counsel, Senior Executives
Association, prepared statement of......................... 58
Cabaniss, Dale, chairman, Federal Labor Relations Authority,
prepared statement of...................................... 18
Dominguez, Cari M., Chair, Equal Employment Opportunity
Commission, prepared statement of.......................... 24
Gage, John, national president, American Federation of
Government Employees, AFL-CIO, prepared statement of....... 72
Heiser, Karen, vice president, Federal Managers Association
Chapter 88, prepared statement of.......................... 93
Kelley, Colleen M., national president, National Treasury
Employees Union, prepared statement of..................... 65
Kichak, Nancy H., Associate Director, Strategic Human
Resource Policy Division, Office of Personnel Management,
prepared statement of...................................... 39
McPhie, Neil A.G., chairman, Merit Systems Protection Board,
prepared statement of...................................... 11
Porter, Hon. Jon C., a Representative in Congress from the
State of Nevada, prepared statement of..................... 4
ESTABLISHING A COMMISSION TO RECOMMEND IMPROVEMENTS FOR THE FEDERAL
EMPLOYEES APPEALS PROCESS
----------
TUESDAY, JULY 11, 2006
House of Representatives,
Subcommittee on Federal Workforce and Agency
Organization,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m., in
room 2247, Rayburn House Office Building, Hon. Jon C. Porter
(chairman of the committee) presiding.
Present: Representatives Porter, Davis, Norton, Cummings,
and Van Hollen.
Staff present: Ron Martinson, staff director; Chad Bungard,
deputy staff director; Jessica Johnson, chief counsel, OPM
detail; Alex Cooper, legislative assistant; Brian Chatwin,
intern; Mark Stephenson and Tania Shand, minority professional
staff members; and Teresa Coufal, minority assistant clerk.
Mr. Porter. I would like to bring the meeting to order, and
thank you all for being here today. We are going to be called
to vote in a few moments. I know you have experienced that
phenomenon in the past. I think about 2:15 or 2:20, we are
probably going to be called to vote, and I think we have a
series of three or four votes.
Today's hearing is Establishing a Commission to Recommend
Improvements for the Federal Employees Appeals Process. Again,
I would like to thank everyone for being here today to discuss
the formation of a Federal Employees Appeals Commission.
In a previous hearing, Justice Delayed is Justice Denied,
there appeared to be general recognition by the agency
stakeholders and the members of the subcommittee that problems
exist in the Federal employee appeals process. The current
system, implemented as a result of the 1978 Civil Service
Reform Act, is complex, often confusing and may have outlived
its original purpose.
The GAO once had this to say about the current system:
``Because of the complexity of the system and the variety of
redress mechanisms it affords Federal employees, it is
inefficient, expensive and time-consuming.'' In hopes of
examining and potentially reforming the process, I have
disseminated a draft legislative proposal to establish a
commission whose purpose would be to study the challenges in
the current Federal employee appeals process, and the many
potential solutions available to increase the efficiency and
fairness of the process.
In the first hearing, we shed light on some of the more
glaring problems with the current system generally: appeals
take too long, are handled inefficiently and are oftentimes
frivolous. Federal employees and managers do not always receive
a timely resolution of their disputes, although the Merit
Systems Protection Board [MSPB], the Equal Employment
Opportunity Commission [EEOC], and the Office of Special
Counsel [OSC], and the Federal Labor Relations Association
[FLRA], all conduct their fiduciary duties admirably and are
consistently striving for improvement.
I anticipate that by working together, these agencies can
better meet their administrative needs and the needs of the
employees and managers in assuring that justice is available to
all.
In 1978, the current Federal employees appeals process was
created with the expectation that splitting adjudication of
employee disputes into multiple agencies would resolve the
problems with the appeals system. Almost 30 years later, the
current system has improved little upon the same problems that
spurred the original changes. The current catalyst for change
is the continuing inexcusable delays in the system.
Last year, this subcommittee looked at only one possible
approach to improving the Federal employees appeals process by
consolidating appeals and filtering them through a one-stop
shop agency or Federal court with the responsibility for
employee appeals. Today, we are going to discuss the formation
of a commission to look at other possible approaches to fixing
the flaws in this system.
The commission would be charged with exploring a whole
realm of options and solutions to repair a somewhat broken
promise. The goal here today is to discuss the form and the
function of this commission. Our overall intent is not to
curtail rights but rather to expedite justice, to ensure fair
grievance procedures by eliminating its inefficiencies.
For instance, I find it most unfortunate if our current
belabored system acts as a deterrent to aggrieved employees
because they fear it is a waste of time and not worth the risk
involved in waiting years for a resolution, while they often
continue to work in the same environment that gave rise to the
claim in the first place.
Written testimony submitted by the National Treasury
Employees Union [NTEU], and the American Federation of
Government Employees [AFGE] at last year's hearing expressed a
need for reform of the current appeals process. NTEU explicitly
stated it would be appropriate for the subcommittee to
concentrate on exploring proposals to streamline the Federal
sector EEO process. The AFGE praised the subcommittee's
efforts, stating, ``Streamlining the employee appeals process
is a laudable goal for the subcommittee, and we admit there is
room for some improvement in this present system.'' AFGE called
the current system hopelessly complex and expressed displeasure
with the lengthy appeals routes in our current system, which
splits jurisdiction and requires overlapping review.
The commission's membership that I am suggesting that we
form would be composed of 10 members, including representatives
from each of the stakeholder agencies and organizations
represented by the distinguished witnesses from whom we will
hear shortly. With the formation of this commission, all of you
here today have an opportunity to study the problems and
recommend solutions that will best meet the needs of employees
and managers seeking resolutions of employee grievances.
I expect the commission will offer recommendations for
streamlining the process to benefit both employees and
managers. Additionally, the commission may want to explore how
claims and disputes are reviewed in the initial stages of
agency review, how improvements at this stage may improve
efficiency in the appeals process. And in a June 2006 report
the GAO found little evidence of coordination at the operating
level between EEOC and OPM developing policy, providing
guidance and exercising oversight, despite overlapping
responsibilities in Federal workplace EEO.
Coordination or lack thereof may need to be examined at
every stage of the process. The emphasis would be to focus on
the process and recommend program changes and legislative
fixes, if necessary. By establishing a commission, I wish to
bring together representatives from the primary stakeholders,
those who are best situated to analyze what does and does not
work within the current Federal employees appeal system.
You are the experts, and I hope the visionaries who will
have an opportunity to advise Congress as to how the Federal
employee appeals process can be improved and streamlined at all
levels. The subcommittee needs your assistance to build on a
solid foundation to create a more efficient and effective model
to reserve the valuable rights of Federal employees. There are
many tools at your disposal: institutional knowledge of what
has and has not worked well in the past; employees and managers
who have been through the process and see room for improvement;
vast advancements in technology; alternative dispute resolution
with the potential for resolving employee disputes early in the
process; and countless other resources to draw upon.
This commission will have the opportunity to work together
and recommend improvements to better meet the best interests of
us all. I commend you for being here today and for your
willingness to continue to work together to tackle a complex
issue. We need to enhance our approach to achieving a just,
efficient and effective employee appeal system. I am confident
with your expertise we can reserve the rights of Federal
employees while at the same time increasing the efficiency and
effectiveness of the Federal employees appeals process.
[The prepared statement of Hon. Jon C. Porter follows:]
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[GRAPHIC] [TIFF OMITTED] T4234.003
Mr. Porter. With that said, I would like to invite our
first panel to share some of their comments. But first, I would
like to acknowledge that we now have a quorum present. Our
meeting is in full compliance. I would also like to recognize
the ranking minority member, Mr. Davis.
Mr. Davis. Thank you very much, Mr. Chairman, and let me
thank you for calling this hearing. I also want to thank all of
the witnesses who have agreed to come and testify today.
Mr. Chairman, last year the subcommittee held a hearing on
a proposal by the Senior Executive Association [SEA], to
streamline procedures for hearing Federal employee allegations
related to personnel practices. SEA proposed the creation of a
Federal Employee Appeals Court, which would combine most
adjudicatory functions currently performed by the Office of
Personnel Management, the Merit Systems Protection Board, the
Equal Employment Opportunity Commission, the Federal Labor
Relations Authority and the Office of Special Counsel. Under
the proposal, the decisions of this court would be final and
not subject to appeal, except in the case of employment
discrimination.
During consideration of the SEA proposal, one of the
witnesses, MSPB Chairman Neil McPhie, proposed as an
alternative the creation of a commission of relevant
stakeholders that would suggest changes to the system. Creation
of such a commission is the subject of today's hearing.
However, we need to be clear about what the problem is before a
commission is created to solve it.
There does not seem to be much complaint with the process
with regards to the MSPB or FLRA with the exception of so-
called mixed cases, which involve both MSPB and the EEOC. If
that is the case, it would be better if the commission focused
on the current process for resolving discrimination complaints
in the Federal work place.
Another concern is that the commission would be made of six
political employees that represent the MSPB, FLRA, the EEOC,
OSC, OPM and the Federal Mediation and Conciliation Services.
Two of the commission's representatives would be Federal
supervisors or managers and only two union representatives
would sit on the commission. This is particularly troublesome
because it is not clear whether the commission would have to
reach a consensus on the final report or recommendations, or if
there would be just a report of dissenting views.
I need only think of the processes used to develop the
Department of Defense and Department of Homeland Security
personnel systems to know what happened when at the end of the
day, the majority does not have to reach a consensus with the
minority on how to proceed. Of course, all of us want to make
sure that there is fairness, that there is equity, and that we
arrive at the best resolution of problems, so that we can keep
them to a minimum.
I look forward to hearing from the witnesses on how to best
address the concerns raised and the Federal appeals process.
Again, Mr. Chairman, I thank you for calling this hearing, also
for the efficient manner in which you start. I noticed that you
were already going as I got here. [Laughter.]
And again, we thank the witnesses and thank you very much,
and I yield back.
Mr. Porter. Thank you for the kind words of support.
[Laughter.]
Just remember, we are going to start meeting in Las Vegas
instead of here at the Capitol, and so make sure you are on
time, OK? [Laughter.]
Thank you very much.
Mr. Davis. There's a heavy discussion going on right now
about that, that involves Las Vegas and Internet gaming.
Mr. Porter. Yes, there is, as a matter of fact. What
happens in Vegas stays in Vegas. [Laughter.]
What happens in Rayburn stays in Rayburn, right?
[Laughter.]
Thank you. We do have some procedural matters. I ask
unanimous consent that all Members have 5 legislative days to
submit written statements and questions for the hearing record.
Any answers to the written questions provided by the witnesses
will also be included in the record. Without objection, so
ordered.
I ask unanimous consent that all exhibits, documents, and
other materials referred to by Members and witnesses may be
included in the hearing record, and that all Members be
permitted to revise and extend their remarks. Without
objection, so ordered.
It is also the practice of this committee to administer the
oath to all witnesses. So if you would all please stand and
raise your right hands.
[Witnesses sworn.]
Mr. Porter. Let the record reflect the witnesses have
answered in the affirmative.
I would like to get the first panel started, and then make
sure everyone is at the table, so the witnesses now will be
recognized for their opening statements. We ask you to
summarize your testimony in 5 minutes. Your full statement may
be added to the record.
We are going to be going to vote in about 7 or 8 minutes,
so possibly we can have possibly two, so you don't necessarily
have to wait around. We will hear from Mr. Neil McPhie, Mr.
Bill Tobey, Cari Dominguez, Scott Bloch, Nancy Kichak and Scot
Beckenbaugh. We will start with Mr. McPhie.
STATEMENTS OF NEIL A.G. MCPHIE, CHAIRMAN, MERIT SYSTEMS
PROTECTION BOARD; WILLIAM TOBEY, DEPUTY SOLICITOR, FEDERAL
LABOR RELATIONS AUTHORITY; CARI M. DOMINGUEZ, CHAIR, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION; SCOTT BLOCH, SPECIAL
COUNSEL, U.S. OFFICE OF SPECIAL COUNSEL; NANCY H. KICHAK,
ASSOCIATE DIRECTOR, STRATEGIC HUMAN RESOURCE POLICY DIVISION,
OFFICE OF PERSONNEL MANAGEMENT; AND SCOT BECKENBAUGH, ACTING
DEPUTY DIRECTOR, FEDERAL MEDIATION AND CONCILIATION SERVICE
STATEMENT OF NEIL A.G. MCPHIE
Mr. McPhie. Good day, Chairman Porter, Ranking Member Davis
and other members of the subcommittee.
My name is Neil McPhie. I am the chairman of the U.S. Merit
Systems Protection Board. Thank you for permitting me to appear
today to testify about the proposal to establish a commission
to study the Federal employee appeals system. I commend the
members of this subcommittee for their vigilance in exploring
ways to improve the procedures for processing challenges to
personnel actions in the Federal Government.
I respectfully submit my written statement to the committee
and will use this time to provide some information and address
some areas of concern.
Recently, as you previously mentioned, the Senior Executive
Association [SEA], proposed the consolidation of the existing
complaint, appeals and grievances processes into a single
system to be administered by a Federal Employees Appeals Court.
During last year's hearing on that proposal conducted by this
subcommittee, I suggested that SEA's proposed and other
recommendations warranted further study. I am pleased to have
the opportunity to discuss the committee's proposed mechanism
for conducting such a study.
As you know, Congress and the administration have placed
significant focus on reform of the Federal personnel system. As
such, I believe the committee's proposal presents a timely
opportunity to study the procedures used to resolve disputes
arising in the Federal workplace. In recent years, Congress has
granted both the Department of Homeland Security and the
Department of Defense the authority to establish new human
resource systems. The administration has drafted a bill known
as the Working for America Act that would change pay,
performance management and collective bargaining rules for the
rest of Government.
More recent legislation has been introduced addressing the
employee performance appraisal process and the establishment of
training programs. I am not here before this subcommittee to
speak for or against any of those initiatives. As I have said
time and time again, the Merit Systems Protection Board is
prepared to play the role that policymakers designate for it,
whatever systems that emerge.
There is a perception that the multiplicity of laws and
regulations that govern the Federal Government employment
relationship make the current dispute resolution processes too
complex, confusing and time consuming. As I discussed in the
earlier hearing, a single personnel action may give rise to
many different legal claims that may be asserted before several
different bodies. A study that examines, among other things,
the nature and extent of any overlap in the responsibilities or
authorities of the multiple agencies that consider such claims
is a crucial first step in identifying ways to improve the
effectiveness of the Federal employee redress system as a
whole.
In this regard, the EEOC recently issued a detailed report
on the processing of Federal sector discrimination complaints,
suggesting that system improvements in that area may warrant
consideration. Any study of complaint appeals and grievance
processes would include a review of the operations of the Merit
Systems Protection Board.
And let me just touch upon some of the ways in which the
Board handles its own business. We have worked at the Board
aggressively to reduce our backlog and our average case
processing times. The Board reduced its inventory of pending
cases by 48 percent in fiscal year 2005, and by an additional
16 percent in the first 8 months of fiscal year 2006.
Average processing time for administrative judges in the
first 8 months of fiscal year 2006 was 88 days. The average
case processing time for headquarters decisions was 265 days in
fiscal year 2005, and that figure has been reduced
substantially in the first 8 months of fiscal year 2006 to 154
days. We continue to identify ways through enhanced technology
and resource development to work more efficiently and
effectively.
All the members of the Board are committed to seeing the
Board carry out its designated role fairly and efficiently in
whatever dispute resolutions systems policymakers devise. The
proposed commission to study improvements to current complaint
appeals and grievance processes is certainly timely and will
serve to provide the critical data and information by which
legislators can base their decisions.
In my view, the proposed members of the commission, to
include representatives from all stakeholders, to include
Government agencies and labor, appears well suited to
accomplish the objectives outlined in the bill. The proposed
agenda and tasks are ambitious and will require necessary time
commitments from all members. I am truly grateful to this
subcommittee for recognizing the need and importance of a study
and for designating the chairman of the Merit Systems
Protection Board to chair the commission.
I look forward to this unique opportunity and challenge,
and I want to thank you for it. I will be happy to answer any
questions the Members may have. Thank you.
[The prepared statement of Mr. McPhie follows:]
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Mr. Porter. Thank you, Mr. McPhie. We appreciate your being
here.
Next we will have Mr. Tobey, who is Deputy Solicitor of the
Federal Labor Relations Authority.
STATEMENT OF WILLIAM TOBEY
Mr. Tobey. Thank you, Chairman Porter, Ranking Member Davis
and members of the subcommittee. I am William Tobey, Deputy
Solicitor of the FLRA, here today to provide a statement on
behalf of Chairman Dale Cabaniss. Chairman Cabaniss asks that I
relay her apologies to you for being unable to attend today due
to unavoidable scheduling and travel conflicts.
If you do have specific questions for the FLRA, I will be
happy to take those back to the chairman, so that we can
followup with you in a timely manner. I will now turn to the
chairman's statement.
Chairman Porter, Ranking Member Davis, and members of the
subcommittee, thank you for the opportunity to appear before
you this afternoon, as you examine the idea of creating a
Federal Employees Appeal Commission to study the challenges in
the current Federal employee appeals process and the realm of
possible solutions available to increase the efficiency and
effectiveness of the process. I applaud your continuing
interest and efforts to evaluate ways to improve Government
operations, while retaining important due process rights for
Federal employees.
We were pleased to appear before you last November to share
with you some background about our particular agency, its
structure, and case processing. One of the issues that we were
asked to address at that time with respect to the employee
appeals process was the potential overlap of jurisdiction and
the opportunity to raise issues in alternative forums. In our
experience and under our statute, although there are examples
of overlap, which I have reproduced as an attachment to this
testimony, the issue of overlapping jurisdictions has not been
a significant issue at the FLRA.
Previously I noted, and I am sure we would all continue to
agree, that there is room for continuous improvement,
administratively and operationally. Both the President and the
Congress have promoted, encouraged, and challenged us all to
strive to ensure we are using taxpayer dollars and Government
resources wisely, whether through the President's management
agenda, OMB's program assessment rating tool, or Government
Performance Results Act reporting and committee efforts such as
this one.
The Federal Employees Appeals Commission is one way for the
numerous stakeholders here today to address possible
improvements in the current process. One alternative the
committee may wish to consider, however, is to seek the
assistance of an independent entity or organization to
accomplish the work of the commission, rather than the
stakeholders themselves. I believe this would enable all
stakeholders to participate fully while also enhancing the
objectiveness of the final work product. For instance, the
National Academy of Public Administration, or a similar
organization, not only is structured to undertake such an
effort, but also could provide a wealth of knowledge and
experience from its many resources, including former Cabinet
officers, Members of Congress, managers, scholars, and others
who could provide additional insight or perspective.
Mr. Porter. Excuse me, Mr. Tobey, but we are down to about
4 minutes for a vote. So if you would hold your thoughts.
Mr. Tobey. I am actually finished now. Thank you very much.
[The prepared statement of Mr. Cabaniss follows:]
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[GRAPHIC] [TIFF OMITTED] T4234.010
[GRAPHIC] [TIFF OMITTED] T4234.011
Mr. Porter. My apologies for that. Thank you very much.
There is, I think, a series of about 3 votes, so it should
be about 30 minutes, if things go well. Thank you. We will be
in recess.
[Recess.]
Mr. Porter. I would like to bring the meeting back to
order. Our 30 minutes was Federal time, about 55 minutes. So
thank you for your patience.
Mr. Tobey, is there anything you would like to conclude
with?
Mr. Tobey. No, I am finished, thank you.
Mr. Porter. My apologies for that.
Next we will have the Honorable Cari Dominguez, Chair,
Equal Employment Opportunity Commission. Thank you for your
patience. It is good to see you again.
STATEMENT OF CARI M. DOMINGUEZ
Ms. Dominguez. Thank you, it is good to see you.
Thank you very much, Chairman Porter and Congressman Davis
and members of the subcommittee. I very much appreciate the
opportunity to be invited back today to testify on this very
important topic. I am Cari Dominguez, the Chair of the U.S.
Equal Employment Opportunity Commission.
Mr. Chairman, I do have a few comments to make, but request
that my full written testimony be made part of the official
record.
As I have stated in previous testimony before this
subcommittee, I welcome and support your efforts to find ways
to improve the efficiency and the effectiveness of the Federal
EEO complaint and appeal processes. This afternoon we meet to
discuss a draft bill that would establish a Federal Employees
Appeals Commission. As I understand it, the commission would be
charged with reviewing the current appeals and grievance
systems for Federal employees, as administered by the EEOC, the
Merit Systems Protection Board, the Federal Labor Relations
Authority and the Office of Special Counsel. The focus of the
proposed commission's review would be on identifying
redundancies or overlaps of responsibility or authority by
these agencies, as well as any procedural ramifications of such
overlaps.
The proposed commission would also look at timeliness
issues, particularly the amount of time it takes the subject
agencies to process matters brought before them. And of course,
at the end of this review, the commission would present to the
President and the Congress a report containing recommendations
along with their findings.
When I appeared before the subcommittee last November, my
testimony described the role of the EEOC and the complaint
processes that we administer. I offered then my firm belief
that there is an urgent need to reform the Federal sector
complaint processing system. The current system is not ideal
and Federal sector employees clearly deserve better.
I have shared, expressed concerns that the Federal EEO
complaint process is too slow and cumbersome and subject to
real or perceived conflicts of interest. Unlike the processes
of most of the other agencies which receive complaints and
grievances directly, an EEO complaint is filed with and
initially processed by the agency that is accused of
discrimination, and not the EEOC. The Federal agency accused of
discrimination investigates the complaint against it. EEOC is
not at all involved unless the complainant requests an
administrative hearing before one of our administrative judges.
Almost always, the complaint has languished for more than
180 days at the agency where it was filed before the employees
comes to EEOC to request a hearing. And even then, the
complaint must return to the agency for final disposition.
Thus, EEOC's ability to affect the processing of the complaint
is extremely limited until late in the game when the matter is
finally presented to us.
As I also noted in my earlier testimony before this
subcommittee, I believe that the primary area of EEO complaint
processing most urgently in need of reform is the initial
processing conducted by the agency where each complaint
originates. It is the systems lapse, and not any jurisdictional
overlaps or redundancies associated with the missions of any of
the agencies here represented, which adversely affects overall
complaint processing and certainly undermines public confidence
in the system. Even the mixed cases we have talked about so
often involving both EEOC and MSPB affect fewer than 3 percent
of the cases which come before us.
Notwithstanding the obvious internal control problems
associated with Federal agencies conducting their own
investigations, many Federal agencies have made real
improvements in the timeliness of processing EEO complaints.
For example, in fiscal year 2004, it took Federal agencies on
average 469 days to close an EEO complaint. The average
processing time for closure this last fiscal year was 411 days,
a 12 percent reduction, but still considerably more than the
270 days allowed by EEOC's regulations for complaints without a
hearing.
Agencies are also becoming far more efficient in
investigating EEO complaints. In fiscal year 2004, the average
time for investigating a complaint was 280 days. In 2005, it
was 237 days. So I am very, very encouraged that many of the
Federal agency heads, to whom I have directed my concerns about
internal complaint processing, have been receptive.
The recent trends in decreased investigative times and
enhanced resolution efficiencies are indeed good signs of
progress. However, we need more work in this area. Only 55
percent of agency investigations were timely completed in
fiscal year 2005, and only 25.5 percent of the agencies met the
regulatory timeframe.
At EEOC, we have significantly reduced the processing times
for the majority of the cases that have come before us. Our
average processing time for hearings has declined to 249 days,
almost a 30 percent reduction from fiscal year 2004. And the
average processing time for the appeal closures has dropped
from 207 days in fiscal year 2004 to 194 days in fiscal year
2005. We are really working hard to address resource and
operational constraints which can affect the efficiency of our
case processing. But there are no indications of any impediment
posed by any purported duplication of effort by our sister
agencies, MSPB, FLRA and the OSC. Yet in spite of these gains,
I am convinced that the EEO complaint process can be further
scrutinized for greater efficiencies and enhanced performance.
With respect to the draft bill, while I would welcome an
independent review of these systems, I would propose another
alternative. I would recommend that any commission studying
this issue include independent, external experts who would
bring to bear their extensive knowledge and expertise gained in
a variety of settings, both public and private sectors. The
National Academy of Public Administrators, the only
congressionally chartered organization of its kind, would be
ideally suited to examine this issue. Other appropriate
consultative entities include Excellence in Government and the
Partnership for Public Service. These reputable organizations
not only apply higher-order thinking to these issues, but also
remove any questions or doubts pertaining to potential
conflicts of interest or perceived self-interest.
Again, I thank you very, very much for the opportunity to
comment on this draft bill, and greatly appreciate your
leadership and support in this important aspect of our work. I
will be happy to answer any questions that you might have.
[The prepared statement of Ms. Dominguez follows:]
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Mr. Porter. Thank you very much.
Next we will have the Honorable Scott Bloch, Special
Counsel, U.S. Office of Special Counsel. Welcome.
STATEMENT OF SCOTT BLOCH
Mr. Bloch. Thank you, Mr. Chairman, ranking member, and
members of the committee, and my distinguished colleagues on
the panel. I thank you for the opportunity to come before you
and to weigh in on this important issue of how do we best
address complexities in the appeal system and possibly
streamline it.
One of the problems I think that we confront in our
agencies is when we are not efficient, when we have too much
complexity, too many Kafkaesque layers of review. Then people
lose faith in the system, and the cynicism creeps in, where
managers don't really take seriously the rights of employees,
and employees don't feel that their rights are going to be
observed, even if they file actions.
I believe the committee has properly located the questions
that are important in this issue. OSC itself is no stranger to
these issues. Because we have thousands of complaints in a
variety of enforcement areas that we receive every year, and we
are a small agency, we realize the importance of utilizing
proper procedures and of streamlining.
In the past several years, my agency had a significant
backlog of cases, as did many of my colleagues' agencies here.
In the first year of my tenure, we cut by half or more the
processing times for complaints in our screening unit. And we
set up procedures to have cases that took 2 to 4 years on
average through the whole process to take about a year.
How did we do this? Well, we set up a special projects unit
[SPU], to study problems and ways of streamlining and to
utilize best practices. At the same time, we also brought in an
outside management consulting firm that did a stem to stern
analysis of all our procedures and all of the acts that we go
through in order to process all of our complaints. And then
they created these charts, which I called snake charts, that
resembled what we used to call the Rube Goldberg puzzles
because they were so complicated.
But we eliminated the backlogs within 18 months and slashed
our average processing time in our screening unit from 6 months
down to under 40 days and the prosecution, as I said, to about
a year. During this backlog reduction process, we more than
doubled our percentage of positive cases that go for further
investigation and prosecution to our what we call our IPD unit,
and also doubled the number of whistleblower disclosures that
go to agencies for investigation, while eliminating that
backlog as well. The point being that one can streamline and at
the same time not only protect employee rights at the level you
have been doing, but actually improve the protections of
employee rights. That is a challenge that I would issue to the
committee, and to all of us if we are going to be involved in
the process, that not only do we streamline, but we improve
results for the work force.
As you remember, Mr. Chairman, bipartisan staff teams sent
by this committee exhaustively reviewed our backlog reduction
procedures last year, along with yourself and Chairman Davis,
had very kind words for our efforts and for our results for
whistleblowers. I think this all bears on the issue at hand,
whether to establish a commission to study the ability to
improve the Federal employee grievance process. I think this is
a very important project.
A well regulated system to handle complaints and appeals
must exist to protect the integrity of Government, because it
ensures that employees receive due process, and it ultimately
preserves the principles of the merit system. OSC will be proud
to be a part of finding solutions.
Now, one thing I wanted to point out to the committee is I
prepared a chart, working with my excellent staff, and put it
on one page, and I believe all the committee members and others
on the panel have a copy of this, just how is it that an
employee comes through our system and comes to MSPB, what types
of cases and in what circumstances. And to show that yes, there
is complexity, but there is some method to the madness. And
also to demonstrate that I think there is some benefit to
having visualized the process in its entirety.
Now, this doesn't include the FLRA, this doesn't include
all the EEOC's process or the agency's EEO process. But one
could do that, and you could put it all on one chart and you
could actually see where things are coming and where they are
going, where the choke points are, where the bottlenecks are,
where the problems might exist and what if you lifted this or
moved this around. So that is one thing I think we can do that
is concrete is to put together an understanding, both visually
as well as written out, as to what constitutes the nature of
the problem.
But I want to caution the committee as well that we don't
want to engage in draconian solutions that in any way remove
employee rights. I think we want to be careful not to be so
anxious to reform the system that we take away rights. I don't
think we have to do that, I don't think that is going to be
necessary. I think that remedies can be fashioned and new
approaches and streamlining can be engaged in that are going to
benefit agencies as well as employees, as well as all of the
members here at the table.
And with that, I will conclude and be happy to answer any
questions you may have.
[The prepared statement of Mr. Bloch follows:]
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Mr. Porter. Thank you. We always like charts. [Laughter.]
Actually, it does help follow the flow. I appreciate it.
Thank you very much.
Next we have Nancy Kichak, Associate Director, Strategic
Human Resource Policy Division of OPM. Welcome. It is good to
see you again.
STATEMENT OF NANCY H. KICHAK
Ms. Kichak. Thank you.
Mr. Chairman, Congressman Davis and members of the
subcommittee, I appreciate the opportunity to represent the
U.S. Office of Personnel Management and Director Linda Springer
here today to discuss the idea of establishing a commission to
study the challenges in the current Federal employee appeals
process and the realm of possible solutions available to
increase the efficiency and effectiveness of the process.
While the dispute resolution and appeals process is only
one aspect of OPM's interest in good government, it is an
important one. Workplace disputes with employees, agency
actions taken against employees and the dispute resolution
processes that follow have implications that can impact the
morale and effectiveness of individual employees and their
agencies. Central to any discussion of consolidating and
streamlining dispute resolution processes should be the goal of
making the Federal work force more effective and efficient
while retaining its fundamental underlying principle of merit.
Federal employees work hard and expect to be treated like
professionals. The vast majority of Federal employees will
never be involved in the dispute resolution process. But they
want to know that it is there and functioning effectively. They
want to know that whatever dispute they bring to the process
will be adjudicated in a timely, fair and impartial manner.
The current system for adjudicating workplace disputes has
been criticized as time-consuming, complex and producing
inconsistent decisions. The proposed legislation would create a
commission to study the current appeals processes and issue a
report in 12 months with recommendations on a minimum of seven
significant topics. We agree that this is an issue that
deserves attention and we appreciate your leadership in
exploring ways to address these longstanding criticisms and
improve the efficiency and effectiveness of the process.
We do have some concerns regarding the proposal to
establish a commission to study and make recommendations. Our
first concern involves the short period of time provided, 12
months after the commission's first meeting, to study 4 broad
areas and make recommendations on at least 7 distinct and
substantial issues. We recommend that the period provided for
the commission's work be extended to at least 18 months after
the commission's first meeting.
We also believe that if a commission is established, the
enabling legislation should encourage the commission to consult
with other Federal agencies and independent organizations, not
reflected in the current draft bill, that have unique roles or
expertise in the Federal employee appeals process.
Finally, the proposal would provide the commission with a
director and staff. It does not, however, specify how the
director would be appointed. Since that official would
presumably have a key role in the administration and the
ultimate success of the commission, we suggest that the
legislation clearly describe how that individual is to be
selected and who has the authority to make the appointment.
Perhaps a majority vote of the commission would be required.
In sum, we agree there is room for improvement of the
Federal employee appeals process. We appreciate your leadership
in this area, and we look forward to continuing the dialog on
this and other important personnel issues. Mr. Chairman, thank
you for the opportunity to testify before you and the
subcommittee today. I will be happy to answer any questions.
[The prepared statement of Ms. Kichak follows:]
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Mr. Porter. Thank you very much.
Next we will have Scot Beckenbaugh, acting deputy director,
Federal Mediation and Conciliation Service. Welcome.
STATEMENT OF SCOT L. BECKENABAUGH
Mr. Beckenbaugh. Thank you, Chairman Porter, Ranking Member
Davis and members of the subcommittee.
Before I begin, I would like the full written statement of
my testimony to be submitted into the record at your pleasure.
I am Scot Beckenbaugh, the acting deputy director of the
Federal Mediation and Conciliation Service, and a career
mediator with the agency. On behalf of the Service, I want to
thank you for the opportunity to speak today regarding the
proposal to establish the Federal Employees Appeals Commission.
FMCS has reviewed the draft bill that has been circulated,
and again, welcome the opportunity to make several points
regarding the draft to the subcommittee. To do that, I first
need to provide you with some background, as a small Federal
agency, about what we do and how we do it. Our mediators
provide conflict resolution services to our Nation's employers
and their unionized employees with the goal of preventing or
minimizing economically disruptive work stoppages and improving
the labor-management relations throughout this country.
Outside of the collective bargaining arena, FMCS provides
employment mediation services, primarily in the Federal sector.
These Federal cases arise from allegations of workplace
discrimination, non-contract covered disciplinary actions,
adverse action appeals and in some instances, Merit Systems
Protection Board claims. In fiscal year 2005, we mediated
approximately 1,200 employment disputes for Federal agencies.
We were created by Congress as an independent and
autonomous agency by the Labor Management Relations Act of
1947. From its inception, a hallmark of this agency has been
the strongly held value and belief that the agency's mission
requires absolute neutrality, confidentiality and acceptability
to the parties who participate in the mediation process. As I
am sure all of you know, mediation is an entirely voluntary
process that is done with the consent of the parties in a
dispute. And that the success or failure of the mediation
process is dependent upon the mediator's ability to gain
credibility with the parties and to win their trust.
Throughout our near 60 years of history, we have avoided
taking part in legislative and public debates on labor-related
matters of policy, out of concern that by doing so we would
jeopardize our position as neutrals on collective bargaining
issues. If we are perceived as having taken a position that is
hostile to the interests of either labor or management on
public policy issues, we risk losing the credibility and
acceptability of those parties and thus our effectiveness as
mediators in their disputes.
As a neutral dispute resolution agency, we believe that we
can be effective only so long as neither labor nor management
has reason to believe that we favor or disfavor policies or
procedures or proposed changes in those that are in their
interest.
In appearing here today, I respectfully ask for the
subcommittee's understanding of our agency's very unique
position as a mediation agency. We wish to support and assist
in the work of the subcommittee as well as the commission, if
it is established, but would respectfully request a
modification of the current draft proposal.
We do have substantial experience at FMCS in the design and
development of dispute resolution systems. In fact, it is a
part of what we do every day. If the proposed commission on
appeals process is established, we believe our proper function
would be to work with the commission in a technical assistance
capacity. We can provide facilitation services for the
commission, and if necessary, assist in hearings, fact-finding
and debate. The commission itself can draw upon our knowledge
of dispute resolution systems.
However, I hope the members of the subcommittee do
understand our strong belief that serving as a member of the
commission and being called upon to make recommendations or to
endorse whatever policy recommendations the commission might
make would likely compromise our credibility as neutrals and
potentially impinge on our ability to work effectively as
neutral mediators.
We thank you again for the opportunity to state our views
on this proposal. I hope the subcommittee will take our
comments into consideration as you proceed on this legislation
on the proposed commission. And I would be honored to answer
and take any questions you may have.
Thank you.
[The prepared statement of Mr. Beckenbaugh follows:]
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Mr. Porter. Thank you very much.
Congresswoman, do you have any statements you would like to
make before questions?
Ms. Norton. Mr. Chairman, I appreciate what you are trying
to do. I do want to say for the record that the last hearing
was enough to make everybody want to throw up their hands and
give it to somebody other than us to try to figure this out.
My own sense is that we have drawn in the whole herd here
to deal with a problem that doesn't involve all of them, the
mixed case problem involving MSPB and EEOC mainly. I can
understand, though, Mr. Chairman, your desire to be, as long as
one is going to deal comprehensively about it, I continue to
believe that the up-front problem is far more important than
the appeal problem. Many of these cases shouldn't get to
appeal. We need to look at these agencies as to how they are
funded. There is a $4 million cut in the EEOC. I don't care
what they do, they are going to have problems dealing with
cases of every kind.
But even apart from funding, agencies which accept
complaints are likely to become inefficient unless they are
constantly streamlining from the front end. Then of course, we
would know what we have to deal with in the appeal process and
would probably have a simpler problem.
Mr. Chairman, I must say that I do think that some group
should be given this problem. But I would have a very hard time
voting for a commission that had to go through the House and
the Senate. I mean, normally, the Government should be simply
putting people, if we want the insiders to do this, we should
simply direct them to get together and in fact do it. I don't
see why a statute would be necessary.
If we wanted to set up a commission, you don't set up a
commission, I say, with all due deference, Mr. Chairman, of
insiders. You might set up an independent commission who then
would have the cooperation of these agencies, so that you get
some fresh eyes to look at this problem. What you would now
get, it seems to me, are people ensconced in the problem, some
of them wish they had never heard of the problem and will
simply want to just get it over with. Others will have to deal
with it.
You will get uneven participation. I agree with you, sir,
about the Federal Mediation Service. The last thing you want is
your fingerprints on any of this. And it may be that we don't
have the fingerprints of any of the agencies on it. There are
going to be problems with whatever we come forward with.
I felt I had to be here today, despite an urgent problem,
because I am one of those who has to confess as guilty, it is
the case that this system has been designed by the agencies and
by Congress to preserve as many rights as possible. In the
process of preserving as many rights as possible, we have
balloxed up things for employees.
Mr. Chairman, I just want to say right from the beginning,
that as I see this commission, and you have tried to go down
and just get kind of representatives of everybody, I have a
real difficulty with the composition of the commission, with
first of all the people who get all messed up are employees. So
they get two representatives. That is token representation, it
seems to me, because if there doesn't have to be some kind of
consensus, then they aren't even going to matter, they just
will come in and testify, because their ``votes'' won't matter.
You have the SES and the managers, I have no idea where they
come out on this, poor souls, because they have to handle much
of this.
And then you have the people at the top of the agency,
their special assistants or whatever, who, Mr. Chairman, I must
tell you, will have to learn this stuff first. Because they
don't deal with these things. They are going to have to find
somebody in their agency who is knowledgeable enough to sit at
the table with others.
So my own sense is that if we wanted to do something as
fancy as a whole big commission, instead of having an order
from the chairman to go and do what is necessary to fix this
problem, then my own suggestion would be that it would be an
independent commission, fresh eyes, perhaps, I don't know,
academics, people who we pay to study their navels to come in
and tell us what is best who have no dime in that dollar and
might give us objective opinions that none of the agencies
would have to fuss about, because they would know that they had
not come from inside, and they would know that we hadn't given
more attention or more weight to one agency rather than the
other, because it might be more or less involved.
Thank you very much, Mr. Chairman.
Mr. Porter. Thank you. I think because of all the rains, we
were looking for Noah's Ark. We have two of everybody, we could
make sure we had everyone's interests addressed.
Ms. Norton. Two of us, too.
Mr. Porter. Yes, your point is well taken. Thank you.
Mr. Cummings, anything you would like to add in a
statement?
Mr. Cummings. I will be very brief, Mr. Chairman.
Just two questions. Ms. Dominguez, you noted in your
testimony that the mixed cases, we are seeking in the mixed
cases, we are seeking to streamline representing fewer than 3
percent of the cases that come before EEOC, is that right?
Ms. Dominguez. That is correct, yes, sir.
Mr. Cummings. I think that is noteworthy. You further
suggested that the problem lies with the Federal processing
system. How would you recommend we reform it?
Ms. Dominguez. Mr. Cummings, I believe, as I have stated
both today and in my earlier testimony last November, that we
really do need to look at the investigative phase at the
earlier stages of the process, looking at how one takes in EEO
complaints, and being able to dispose of those complaints that
have no basis before they start getting into the system and
really bottleneck the complaints that do have merit.
So our whole interest here is to try to streamline the
process, looking at it from the beginning, from the time an
employee is concerned about certain practices or perceived
discriminatory treatment that requires attention, and then take
the process. At the moment, for example, the agency against
which the complaint is filed investigates itself, then they may
come to the Commission toward the tail-end of the process, then
they may go back to the agency for a final agency decision, at
which point it could come back to an appeal.
So the process is extremely cumbersome. And really, I think
the victim in this whole scheme is the complainant.
Mr. Cummings. That is all I have, Mr. Chairman.
Mr. Porter. Thank you.
I think sometimes lost in this debate is the employee. I
think someone mentioned that earlier in their opening
statement.
The bottom line is, the employee who has a legitimate
complaint--what can we do to make sure that they can have
proper help and assistance in a very reasonable, timely
fashion? I think we each have our own areas of expertise, and
as we were compiling ideas for this legislation, we were trying
to address as many concerns in these different areas as
possible.
But the bottom line is, there are employees that need
assistance and need it rapidly and need it efficiently so they
can take care of their problem. I have heard lots of different
suggestions from the panel regarding makeup. And if we were to
do a commission approach, I have heard numerous folks suggest
that maybe we should use an independent commission.
I guess I would just like to get an idea, from the
independent side, how many of you think we should just do an
independent panel?
[Show of hands.]
Mr. Porter. One. OK. How many of our panel today thinks
that we should have an independent commission? One person. I
would like to now take a moment, I have heard all of you
suggest some changes to the existing legislation as far as who
you think should be on the board. Can we just take a moment,
Mr. McPhie, what was your suggestion on the makeup of the
board? Did you have one?
Mr. McPhie. I thought the stakeholders who are present. If
there are stakeholders who are not present, they should be
present. When we were talking about this and a board member
asked the question, well, what about the other employees who
aren't represented by a group, a union or whatever. And we
scratched our heads and we asked ourselves, who represents
them? The fact is, they are not represented.
Mr. Porter. The groups other than those listed, is what you
are saying?
Mr. McPhie. Well, I said those listed appear to be the
stakeholders.
Mr. Porter. The employee groups?
Mr. McPhie. Yes. If you don't get the stakeholders
involved, I submit that implementing anything is going to be
tough.
Mr. Porter. Mr. Tobey, what do you think?
Mr. Tobey. Chairman Cabaniss' suggestion was to consider
employing the services of an independent organization like the
National Academy of Public Administration to lend credibility
to the final work product of the commission.
Mr. Porter. I think independent is your suggestion.
Mr. Bloch.
Mr. Bloch. Well, I backed into a solution when we were
talking earlier during the break of a hybrid, of having both
the stakeholders on the commission but also having the
independent entity that would fashion and oversee the process.
I think you need both.
Mr. Porter. Ms. Kichak.
Ms. Kichak. We think the process could be expanded to
include other agencies that are involved in the appeals
process, plus the Department of Justice. We do think
independent organizations should be consulted. But we think
that the agencies involved in the process, such as EEO and
Merit Systems Protection Board are a vital part of any board
that is going to reach a solution on that.
Mr. Porter. Mr. Beckenbaugh.
Mr. Beckenbaugh. Certainly as an organization that deals
with dispute resolution process design, our only encouragement
would be regardless of how you decide to proceed to include as
broad a range of actual stakeholders, people who are going to
be impacted by outcome with the idea of getting the greatest
buy-in in terms of the outcome of the process. That is
certainly when we facilitate regulatory negotiations as a
neutral body in those processes or a public policy dialog,
which is a service we provide. Those are certainly our
recommendations pretty uniformly across the board in these
kinds of scenarios.
Mr. Porter. Personally, I like the Congresswoman's
suggestion that I tell you to go fix it. [Laughter.]
And you have 3 weeks.
But I know that is not reasonable, at least the timeframe,
not that we shouldn't come back with a suggestion. That is the
end of my questions for the moment. Mr. Davis.
Mr. Davis. My approach to problem solving has always been
to try and learn as much about the problem as I possibly can.
Then I know what I am trying to solve. I have heard
speculation, I have heard possibilities, I have heard that we
could do this, we would have to do that.
Is there anybody who sees a definitive problem?
Yes, we have had problems with this mic all afternoon. So
we never know when it is working or what makes it work.
But is there anyone who would delineate a definitive
problem with the system and the process that we currently use?
What is a problem? Is there something that we need more of? Is
there someone definitively left out who needs to be in? Is
there some approach that could be used or should be used that
we are not using? Do we need more mediation? Do we need
whatever? Is there anyone who would have a definitive approach?
Ms. Dominguez. Yes, Congressman Davis, if I may, from an
EEO perspective, there are numerous problems with the system
the way it is currently designed. It takes too long to dispense
justice. When someone comes in, alleging discrimination, and
justice delayed, as we know, is justice denied. So the system
takes too long. The system is very cumbersome. There are too
many levels of review, too much going back and forth from the
agency to an adjudicatory body back to the agency. The system
is very cumbersome.
And the system has also been criticized for the questions
about conflicts of interest. When you have an agency, for
example, investigating itself, no matter how much effort is
taken to make sure that those processes are clean and removed
from any conflict, there is still that perception of conflicts
of interest.
So from an EEO perspective, I can say without a doubt that
we just have too many cases languishing and that it needs to be
looked at. We need an overhaul and we need to start from the
beginning phase of the process.
Mr. Davis. In my opening comments, I mentioned the fact
that there seemed to be not enough. I have some concerns
relative to the amount of union representation. Do we feel that
there is enough stakeholder spread or that there is the
stakeholder balance that we need to have in order to have
greater assurance of a level of equity in decisionmaking?
Mr. McPhie. I testified I think you do. AFGE and NTEU are
two very big, very important unions. They are at the table. I
hesitate to come forward and tell you I know the answer,
because I think if I knew the answer, why not just tell it to
you and we could all go home and we wouldn't need a commission.
I think the areas that the committee chose to study are good
areas. I think embedded in those areas are problems that we
ought to address. If you focus on the expectation of the
employee filing a complaint, seems to me that person deserves
an answer, up or down, within a reasonable period of time.
To the extent that does not happen, we have to put our
heads together and come up with a system that preserves the
opportunity to get a fair shake of that complaint. But also, is
that person, the resolution of that complaint, quicker than we
do it now?
Mr. Davis. So you are saying that the structure is very
important, because otherwise, I mean, everybody can have a
different opinion or a different point of view, or can see
things differently. But if the structure is correct, then in
all likelihood, the appropriateness of the solution will be
balanced?
Mr. McPhie. Yes, I think part of it is a systems analysis.
We know we have issues with employees, we have employees, we
have employers, we have this job to do. We know we have issues,
we know people sometimes complain about different things. It
seems to me we have to devise a system that accommodates a
resolution of those issues. And we have to ensure that whatever
we do, peoples rights are protected. They have a right to a
hearing, for example. People forget, before the board, they get
a due process hearing, which is contained in the due process
clause of the constitution. These things are important.
So whatever we do, we can't forget that. The question is,
how do we do it efficiently?
Mr. Davis. Thank you very much, Mr. Chairman.
Mr. Porter. Congresswoman Norton.
Ms. Norton. Let's try to take this vexing problem down to
its size. Mr. McPhie I guess would be the person to ask. What
percentage of cases are mixed cases in the system in the first
place?
Mr. McPhie. Well, I wouldn't question what Chair Dominguez
says.
Mr. Porter. What is that number?
Ms. Dominguez. Three percent.
Mr. McPhie. She said 3 percent.
Ms. Norton. Are we talking about 3 percent of all the
cases?
Mr. McPhie. But don't forget, there are real people behind
those cases.
Ms. Norton. Well, there are real people----
Mr. McPhie. Every one of those persons deserves, in my
opinion, a response to their case. That case is important to
them. Three percent of a sizable number means there are a lot
of people out there in that 3 percent. I chose to think of it
as a people issue, and not necessarily only as a numbers issue.
Ms. Norton. Well, the people have thought to think of it as
a numbers issue, though, because they can't get through the
system for a very long time. The reason I concentrate on how
many cases we are talking about is, we are talking about a
whole big commission to deal with 3 percent of the cases. And I
am just looking for a way to deal with the chairman's concern
that might be more efficient and economical.
Let me ask this question. Mr. Tobey, do you know anything
about mixed cases? I am not asking this to embarrass you. In
the course of your professional work, have you had occasion to
learn much about mixed cases?
Mr. Tobey. That kind of work has not come in my direction
at the FLRA too much. We have a somewhat different situation
with regard to our relationship to the other agencies. There
might be situations which give rise to disputes that would be
heard in a different forum, but there is not the same sort of a
mixed case situation.
Ms. Norton. If we are dealing primarily with mixed cases,
there would be a limited contribution you would have to make if
you were on this commission, I take it?
Mr. Tobey. That is correct.
Ms. Norton. How about you, Ms. Kichak? Do you know much
about mixed cases in your work at the Strategic Human Resource
Policy Division of the OPM?
Ms. Kichak. Yes. One thing I know is that what has brought
us here today is not just mixed cases. Even though mixed cases
are very complex, the process for resolving disputes is not
timely even for cases that are not mixed cases. If the only
problem with employee disputes was mixed cases, then you are
right, you wouldn't need this many folks. But many of the
problems previously described at EEO, I shouldn't say problems,
but the time that certain cases take to reach resolution are
not mixed cases. There is a timing problem in other kinds of
cases also.
Ms. Norton. So you think the commission is necessary to
deal with slow processing of cases throughout the Federal
Government?
Ms. Kichak. That is correct.
Ms. Norton. Do any of you think that the best way to deal
with that problem would be to create a Federal appeals court?
Does anybody there want to raise a hand for a Federal appeals
court? All right, I see by process of elimination we know one
thing that won't be in the final recommendations if this is to
be the group.
Do any of you yourselves feel that if this task were given
to you as Federal agencies that you could solve the problem?
Ms. Kichak. I will say we at OPM do not feel we could solve
this problem alone.
Ms. Norton. Then I don't know why you ought to be on the
commission. The commission consists of nothing except you all.
Now, if you don't think you can solve the problem if we gave it
to you as a group, then why should we give it to you as a
commission?
Mr. McPhie. I am not certain that I agree that the problem
cannot be solved. I think it can be solved.
Ms. Norton. I am asking you, if we were to say to this
group, and here I am leaving out the chairman's time limit, go,
sit together for----
Mr. Porter. Ms. Norton, you are sounding like a Republican,
so keep talking, you are doing fine. [Laughter.]
Ms. Norton. Go, and a year from now, report back to us on
your solution to this problem. Do you feel that you could do
that?
Mr. McPhie. I think it is a difficult task, but it can be
done.
Ms. Norton. I am asking you if you feel this group could do
it, sir. We are not asking if this is a task that was beyond
any human being to do. I am asking whether or not this group as
a group, if they were charged to do it, as a group, could do
it.
Mr. McPhie. Well, since the group hasn't met as a group, it
is very difficult to predict what is going to happen.
Ms. Norton. So you don't know if the group could do it or
not?
Mr. McPhie. I think with the expertise, with a true
willingness to solve it, and a true willingness to report back,
and of course it is the will of the Congress, they can take the
recommendations and do whatever the Congress wants to do with
it. But I think you will get from this group an honest
evaluation and suggestion.
Ms. Kichak. Excuse me. If you asked me could OPM do it
alone----
Ms. Norton. No, that is not my question.
Ms. Kichak. Well, I am sorry, but I misunderstood your
question.
Ms. Norton. Could you, this group, the assembled group at
the table, could you do it if you were charged to do it within
a year?
Ms. Kichak. I think the assembled group at this table could
make suggestions to improve the process substantially.
Personally, we recommended more than a year, but I think within
a reasonable amount of time, this group collectively could make
substantial recommendations, recommendations that would improve
the process.
Ms. Norton. Ms. Dominguez.
Ms. Dominguez. I would say that one of the alternatives
that I recommended would be to have an independent group with
input from all the stakeholders here. I don't think you can do
it by yourself. But I do think that we are so enmeshed in our
day to day issues, and all of us here are working very hard at
management reforms, and to do the things that we can do within
the constraints of the laws and the regulations that we
administer.
So I think that we certainly can provide input. But I would
like to see it led by an independent body that would then
involve all of us and also do some independent evaluations of
other good practices and benchmarks that exist.
Ms. Norton. Yes, I kind of heard, I appreciate your
comment, Commissioner Dominguez, because I kind of heard in an
earlier response a concern at the table that if you weren't
doing it somehow your input would not be sufficient in this
process, and one really wonders about that.
Let me ask you this. Does the assembled group think that a
group like this would be helped if there were some independent
members added to the group?
Ms. Kichak. Yes.
Ms. Norton. Anybody disagree with that?
Mr. McPhie. In fact, I think I observed a little bit
earlier that I don't see it as an either-or proposition. I
think the involvement of groups like NAPA is very good, there
is no question about that. They have expertise, Max Dyer's
group, and so on. There is no question.
But I don't know why it is one or the other. I believe if
the stakeholders can agree, it doesn't matter what the experts
say, the recommendations are not going to be consensual, and
that is going to be the trick.
Ms. Norton. Do you think, in light of the fact that people
are ensconced in their own agency, have no reason to want to
figure out how these, have had no reason except as they may
have arisen anecdotally, to want to figure out how your agency
does something, do you think the involvement of so many
agencies with different degrees of concern and interest would
affect the outcome? Some agencies are more heavily implicated
than others. Some will have to speak far more often.
In light of that, do you think that a consensus process,
rather than a vote by some kind of majority, if you had some
kind of process involving you it would be better?
Mr. McPhie. I think we should strive real hard to give you
all a consensus position. I don't think this whole effort is
best served by having minority reports and majority reports and
sub-minority reports and so on. The whole purpose is to try to
get stakeholders to identify ways in which they can improve the
systems they administer, period.
So the goal is consensus. It has to be.
Ms. Norton. Well, thank you, Mr. McPhie. I must say that
anything other than that would simply transfer the burden to a
partisan group called the Congress of the United States. So
without a consensus, which would mean that all of you have had
to compromise to some extent, which means recognizing that the
other agency has to be considered, without that kind of
process, one wonders whether you would be making more problems
than you would solve. I appreciate your views.
Mr. Porter. Mr. Van Hollen, it is a good thing you got
here, because we are going to put you in charge of a committee.
[Laughter.]
Thank you for being here. We appreciate it.
Mr. Van Hollen. Let me just first of all apologize for
being late. I serve on another subcommittee of the Government
Reform Committee, and there is a hearing ongoing right now. I
am afraid I am going to have to get back to that. But I just
wanted to come by and thank everyone on this panel for this
testimony and the people who are coming on the next panel. I do
look forward to reading the testimony and trying to weigh the
different issues. I was listening to my colleague here talking
about some of the very important questions that have been
raised, and I look forward to trying to get the answers from
all of you on some of the questions that she and others have
raised.
Again, I apologize for being late, and I apologize for
having to leave early. We have been unfortunately double
booking some of these hearings on the same Government Reform
Committee and trying to jump back and forth. Thank you, Mr.
Chairman.
Mr. Porter. Thank you very much. We appreciate your
schedule and the challenges. Thank you for being here.
I would like to thank the panel. We appreciate your input.
Thank you.
And we will have panel two. We will be vacating the room at
approximately 5 o'clock. We appreciate your patience.
Next on our panel will be Mr. William Bransford, the
general counsel, Senior Executives Association; Ms. Colleen
Kelley, national president of the National Treasury Employees
Union; Mr. John Gage, national president of the American
Federal of Government Employees, AFL-CIO; Ms. Karen Heiser,
vice president of FMA Chapter 88, Federal Managers Association.
Welcome and thank you for your patience. I know that you
have been very patient with us in the past, and we appreciate
it again today. Thank you.
Mr. Bransford, welcome.
STATEMENTS OF WILLIAM L. BRANSFORD, GENERAL COUNSEL, SENIOR
EXECUTIVES ASSOCIATION; COLLEEN M. KELLEY, NATIONAL PRESIDENT,
NATIONAL TREASURY EMPLOYEES UNION; JOHN GAGE, NATIONAL
PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-
CIO; AND KAREN HEISER, VICE PRESIDENT, FEDERAL MANAGERS
ASSOCIATION CHAPTER 88
STATEMENT OF WILLIAM L. BRANSFORD
Mr. Bransford. Thank you, Mr. Chairman, members of the
subcommittee.
I appreciate your invitation to testify on behalf of the
Senior Executives Association about establishing a commission
to recommend improvements for the Federal employee appeals
process. I testified before this subcommittee 7 months ago on
behalf of SEA regarding its proposal for a Federal employee
appeals court, a central place to seek redress for legitimate
Federal employee workplace complaints. As general counsel of
SEA, I was pleased to put forward our proposal as one idea to
fix a longstanding problem.
The impetus for SEA's proposal is the broken state of the
Federal employee appeal and complaint system. The hearing last
November revealed widespread consensus among the stakeholders
in the system that significant problems exist with the current
Federal employee system, which must be fixed to ensure fair and
timely treatment for both the employee who files an appeal or
complaint and those who are accused of wrongdoing.
SEA believes that reform of this broken system must occur
and applauds this subcommittee for its work to develop the
concept of this commission. For many years, Federal managers
and other employees have labored under a complaints mechanism
that allows employees numerous bites of the apple, a multitude
of different paths to pursue and the ability to tie up
management for years with what are often frivolous complaints.
Some Federal employees abuse the complaints and appeals process
with impunity, slowing down the system for those cases that
truly need consideration.
The current system has also made the Federal manager an
easy and convenient target. With pressure from both higher
level management and subordinates, the Federal manager is often
perplexed about how and when to do the right thing. While
Congress has occasionally grappled with this issue, we now have
an opportunity to develop a consensus on improvements from the
stakeholders, employees, managers and agencies. We all
acknowledge that problems exist. The proposed legislation will
provide a framework for real discussion on change, which will
lead to real solutions.
Having the key stakeholders in the Federal employee appeal
and complaint system around one table to study these issues
will provide a healthy forum for resolving the myriad problems
being discussed today. SEA is pleased that the MSPB will use
its leadership to chair this proposed commission and SEA is
hopeful the commission to study the employee appeals process
will soon become a reality.
While SEA has proposed a central place to seek redress for
legitimate Federal employee workplace complaints, we believe
there is more than one path to appropriate reform, and we look
forward to working with other stakeholders to solve this vexing
problem. The question are: what needs to be changed and what
needs to be uniformly incorporated across the system? Several
facts are clear already and provide a good starting point.
The MSPB has performed well with employee appeals and we
believe it provides a model for reform of the system. The board
has rapidly processed cases and is generally supportive of
reasonable management efforts to discipline problem employees
and to respond to poor performance while at the same time
preventing abuses of the merit system.
Contrast the MSPB's performance with what happens in a
typical EEO case. According to the EEOC's 2005 report, which
shows improvement over previous years, cases still take too
long to resolve. EEO professionals often candidly admit that
employees sometimes mis-use the EEO process to raise complaints
of job dissatisfaction when they lack evidence of
discrimination because it is perceived as the only forum
available in which a matter can be raised effectively and heard
outside the agency. This is reflected in the fact that only 1.5
percent of the total cases filed result in findings of
discrimination.
One reason the EEO process is so clogged is that a very
high percentage of those 23,153 complaints are fully
investigated, even though it is apparent to any informed
observer that the complaint lacks merit. Why are blatantly
frivolous complaints so meticulously investigated? Federal
agencies are required to investigate themselves when an EEO
complaint is filed, which is an obvious conflict of interest.
To address concerns about a process that has inherent conflicts
of interest, the Federal sector EEO system responds by fully
investigating and processing every EEO complaint, even though
it is obvious that it lacks merit from the outset.
And of course, some complaints do have merit. There is
nothing more frustrating for a Federal employee than to prevail
in an EEO complaint many years after it has been filed, and
then to realize that justice cannot be attained because
circumstances have changed in the lengthy time span during
which the complaint was processed. Similarly, for those
managers in the approximately 17,000 EEO complaints filed
annually that lack merit, the burden of managing those
subordinate employees over the long period of the complaint
life span is unreasonable and should be relieved.
Thank you for the opportunity to testify. We look forward
to working with you and your staff and this proposed commission
to find common sense solutions to these complex problems.
[The prepared statement of Mr. Bransford follows:]
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Mr. Porter. Thank you. We appreciate it, Mr. Bransford.
Ms. Kelley, welcome.
STATEMENT OF COLLEEN M. KELLEY
Ms. Kelley. Thank you, Chairman Porter, Congresswoman
Norton. It is a pleasure to be here on behalf of NTEU and the
150,000 Federal employees who we represent in 30 agencies.
NTEU has worked for over 65 years to improve and defend
Federal employee protections, rights and benefits. We take very
seriously the proper adjudication of the statutory and
contractual rights of our members, and any acts of
discrimination or unfair treatment toward them.
Last year, the subcommittee considered a proposal by SEA
for the establishment of a new court to be known as the Federal
employee appeals court, intended to combine all appeal
processes for Federal employees into one forum. NTEU strongly
objected to this proposal. We have provided a detailed
explanation as to the reasons for our objections to the
subcommittee.
NTEU agrees that complaints should be resolved quickly
without compromising justice or fairness. We feel, however,
that the proposed Federal employee appeals court is misguided.
NTEU also believes that the proposal for a commission to
recommend legislative or structural changes to the appeals
process misses the real issue.
The proposed legislation asks the commission to review
consolidation of operations or agencies. We do not believe that
replacing or consolidating agencies with specialized expertise
with a new entity that will have no particular expertise will
improve the appeals processes. The jurisdictions of the various
affected agencies cover complex subject matters and the career
staff has built up significant expertise.
The proposed legislation also charges that the commission
has two other duties: to look at organizational, procedural and
structural changes; and to look for ways to reduce the time for
appeals. It appears as though a concern with the processing of
equal employment opportunity issues is the main force driving
the desire for change in the complaint and appeal process.
The answer is not study commissions or legal structural
changes. The answer is adequate funding and staffing at the
EEOC and at other agencies, so that they have the resources and
the personnel to do their job in a fair and a timely process.
As we sit here today and as we have heard referenced earlier,
the administration is making moves to cut the budget of the
EEOC by $4 million. The EEOC is understaffed. My understanding
it has been under a hiring freeze since 2001, and the agency
projects that its backlog of cases will continue to grow again
next year, as it did from the past year.
It is totally understandable that neither employees nor
managers are pleased when cases linger on for ever-increasing
lengths of time. Congress should not be waiting for a
commission study to make a report when Congress has the
authority to correct the problem this year. The EEOC budget
should not be cut by $4 million, but should be increased, so
that additional staff may be hired. EEOC funding should be at
such a level that its backlog of cases not only does not
increase, but that it is actually reduced.
It seems that this study commission is being charged with
fixing a car when the only problem is that the gas tank needs
to be filled. NTEU's position is that these agencies should
first be given the resources they need to do their job. Only
then, if problems still exist, should we explore structural,
legislative and procedural changes.
And finally, Mr. Chairman, establishing a commission to
recommend changes in the Federal employees processes is relay
an unnecessary waste of taxpayer money. NTEU and other
interested parties have given their views on the SEA proposal,
and I am sure that we will be happy to work with the committee
on any other alternatives that improve the process without
diminishing any party's rights, such as winning adequate
funding for the agencies that need it.
I would also just add that the comments made about
employees' mis-use of the existing systems, you could make a
long list of many things that are abused, including many
managers and executives who may abuse the authority they have
when dealing with employees. I don't see anyone taking away the
authority that managers and executives have when they mis-use
it, so I don't see that employee rights should be taken away
from them under the guise of a commission to streamline a
process when the known problems with the process are not being
dealt with.
Thank you, and I look forward to any questions you may
have.
[The prepared statement of Ms. Kelley follows:]
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Mr. Porter. Colleen, I like you, because you always tell me
what you think. I appreciate that. [Laughter.]
Thank you very much.
Mr. Gage.
STATEMENT OF JOHN GAGE
Mr. Gage. Thank you, Mr. Chairman.
On behalf of the more than 600,000 employees represented by
AFGE, I want to thank you for this opportunity to present our
views on the issue of creating a commission to study
streamlining employee appeals.
The proposed commission would be charged with studying and
proposing revisions to the current Federal employees grievance
and appeals system, having four main duties: one, identifying
overlaps between the jurisdiction of these four agencies;
comparing the average processing times of the various types of
cases in agencies; identifying impediments to the fair and
timely investigation of adjudication of such cases; and
finally, presenting recommendations for improvements in seven
specific areas, to include possible consolidation of agencies
and/or organizational, procedural or other changes in order to
improve the efficiency, effectiveness and fairness of their
appeal system.
AFGE cannot support the commission as proposed. It is too
large, has too broad a mandate, would take too long to
deliberate, and would lack any real credibility because its
makeup is too heavily weighted in favor of political
appointees. Despite our opposition to the commission as
currently proposed, we appreciate the subcommittee's expressed
willingness to act in this area and certainly believe there is
room for improvement in three of the areas identified in the
bill. These are: adequately funding the EEOC to reduce its case
backlogs, both Federal sector and private sector; improving the
EEOC investigation process, which presently takes much too long
and involves a built-in conflict of interest; and last,
reforming appeals of mixed cases, or those cases which involve
two elements, adverse action along with discrimination or other
prohibited personnel practices.
I will discuss each of these problems briefly and discuss
ways to fix them which do not require additional study and
which would be cheaper, easier, more fair and better for all
involved. If a commission is to be established, its charge
should be limited to these three areas. First, the EEOC must be
adequately funded in order to reduce its huge backlogs, both in
the Federal sector cases processing and Federal sector appeals,
as well as in the private sector. Since 2001, budget cuts and
hiring freezes have crippled the agency, increasing backlogs
numbering in the tens of thousands. Despite this growing
backlog, the agency has already lost 20 percent of its work
force, and has been unable to replace experienced
investigators, lawyers, paralegal and clerical staff because of
a hiring freeze in effect since 2001.
The remedy for the backlog is simple: provide the EEOC with
adequate funding so they can hire the additional staff needed
to process its Federal sector discrimination cases in a timely
manner. Any available funding should be put directly into the
EEOC's budget and earmarked for reducing case backlogs.
AFGE would also support a proposal to remove the authority
to investigate EEOC charges from the employing agencies, and
transfer this function to the EEOC itself. However, Congress
would have to allocate substantial funding to go along with
this substantial workload, so that the EEOC could hire adequate
staff or arrange for details or transfers of EEO investigators
from the various agencies to a new central office or regional
office.
The goal of the transition would be to complete all
investigations within the statutory mandate of 180 days. Such a
reform could significantly improve both the quality, timeliness
and the perceived credibility of the Federal employee
investigative process, and could lead to better decisionmaking
and fewer hearings in the long run. However, the already
overburdened EEOC should not be reassigned this responsibility
without ensuring adequate funding. That would be worse than the
status quo.
The most pressing issue to reform is the cumbersome and
duplicative appeal process for mixed cases, which involves two
separate causes of action, an adverse action coupled with
allegations of discrimination or other prohibited personnel
practices. Under current rules, such cases could be heard in at
least two separate administrative agencies and two separate
courts. The solution to the problem identified in the
Government employee appeals process is not to merge the highly
dissimilar MSPB, EEOC, FLRA and OSC into a single super-agency.
Instead, the real challenge is to cut down on the number of
multiple forums that employees can or in some cases must use
when attempting to process a single appeal to finality,
especially the dreaded mixed case.
The solution to the problem of extraordinary delays and
procedural confusion and processing of mixed cases is to
simplify and streamline the Federal appeals process by
permitting employees to choose a single forum to decide all
issues in accordance with established law. Law and regulation
could be revised to eliminate any layer of cross-appeal among
arbitration decisions, the EEOC and/or the MSPB, no matter
where the case arose. Similarly, employees who elect to file
cases with MSPB or EEOC in the first instance should expect
finality in their administrative appeals while retaining the
right to seek de novo judicial review in appropriate cases.
Mr. Chairman, let me conclude my remarks by emphasizing
that the committee needs to redirect its streamlining efforts,
one, away from any proposal to create a commission, and two,
toward the heart of the confusion: the backlogs at the EEOC and
the overlapping jurisdiction of the MSPB and EEOC, where simple
discrimination cases can languish for years and where employees
are forced to file numerous appeals of the same case. Once an
employee and an agency get wrapped up in a mixed case, it may
be years before they see the light of day.
That concludes my statement, I will be happy to answer any
questions.
[The prepared statement of Mr. Gage follows:]
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Mr. Porter. Thank you, John. You are pretty mellow today.
Mr. Gage. Yes, I am. [Laughter.]
I just got back from Alaska. It is mellow up there.
Mr. Porter. We will talk about that. Thank you for your
comments.
Ms. Heiser.
STATEMENT OF KAREN HEISER
Ms. Heiser. Chairman Porter, Ranking Member Davis, on
behalf of the nearly 200,000 managers and supervisors in the
Federal Government whose interests are represented by the
Federal Managers Association, allow me to thank you for the
opportunity to present our perspective on the need for reforms
in the employee appeals process.
We are pleased to comment on the draft legislation to
establish a commission to review jurisdictional and procedural
issues and make recommendations to Congress for improvement.
The established systems for employees to address grievances
against a manager or agency are inconsistent in their ability
to respond to a complaint in a timely manner and to weed out
frivolous claims. Employees have a broad range of avenues
available to them. They can present appeals to multiple
independent organizations and even send letters to the
congressional representatives. We support the mission of all
these agencies and respect them as independent bodies,
established to help maintain the integrity of the Federal work
force.
However, at the hearing before this subcommittee on
November 9, 2005, it became clear there was a disparity in the
efficiency and effectiveness of these agencies. The point was
made that managers and supervisors must weigh as equal burdens
the choice to make the right decision and the likelihood of
going through the process of appeals and potential retaliation.
As was pointed out in the testimony of the Senior Executives
Association, employees can file claims without merit and
maneuver through the appeals processes for years. In the
meantime, managers are passed over for career-advancing
opportunities in the face of mostly un-meritorious claims.
More importantly, this same resolution limbo allows claims
of merit to linger for years as an employee works with a boss
who has taken unwarranted action against them. In either
scenario, entire work groups suffer in this dysfunctional work
environment.
Under the current EEOC process, an employee can file a
claim with little or no substantiation. Then, due to the
enormous volume of cases, EEOC often puts pressure on
settlement to avoid adding to the backlog. According to its
2005 annual report, the EEOC seems to be moving in the right
direction to improve the timeliness of investigations, hearing
receipts and merit decisions. We commend the commission for
their efforts to improve the process, address the backlog and
reduce the overall time line for responses.
However, much still needs to be done. Of the 22,974 cases
closed in 2005, only 345 were found to have discrimination
involved, as per the EEOC annual report. That means 1.5 percent
of the cases were found to be meritorious in their claims of
wrongful action, which is slightly more than the 1.3 percent of
cases in 2004 that were found to have the same statistics.
The other independent agencies do not seem to have the same
backlog or process problems, but remain in need of review. The
Merit Systems Protection Board is closer to the mark in their
timeliness of processing claims and percentage of decisions
rendered. On average, the board renders decisions within 100
days of filing and supports the actions of managers and
supervisors 80 percent of the time. In practice, however, MSPB
encourages settlement over full processing of the claim, which
somewhat invalidates these results.
It is clear to us that the entire appeals process offers
too many options to employees looking to file frivolous claims
against managers trying to address poor conduct, under-
performance or other problems. The EEOC process must be
streamlined and more stringent standards must be placed on
claims filed by employees. We also believe that managers'
rights need to be taken into consideration due to the excessive
number of frivolous claims determined each year by EEOC
decisions.
The legislation proposed by you, Chairman Porter, to
establish a commission to review the Federal employee appeals
process presents a thoughtful and deliberate balance in the
effort to address these issues by first identifying the current
state. This will allow agency employee representatives to sit
down in an open dialog and discuss reform proposals in the
light of a thorough assessment of all the Federal employee
appeals outlets and their missions. The proposal of a
commission to study these issues takes us a step forward in
addressing the failures of the Federal employee appeals process
and opens the door to understanding proper solutions to remedy
the problem.
For too long, managers, supervisors and employees have
suffered at the hands of lengthy processes and broken systems,
disconnected options and eventually unsatisfactory decisions.
For the manager working with an employee who is a frequent
filer or an employee working with a discriminatory supervisor,
resolution must come at a quicker pace.
We support the efforts of Chairman Porter and believe this
legislation would take us closer to fixing the broken system
that currently exists in the Federal employee appeals process,
and we are honored to be included in this hearing and the
proposed legislation.
If I could offer a couple of comments that are not in my
written statement, but in response to issues that came up
during the first panel, there was discussion over commission
membership, independent observers or independent oversight
authority and the question was put to the last panelist whether
they felt they could solve this problem. I would put to you two
thoughts for consideration regarding any type of independence.
The involvement of organizations like the Center for
Excellence, etc., as resources is certainly valuable. As far as
any type of independent oversight, we feel GAO would be the
most appropriate body.
However, in following Mr. Bloch's thoughts, my home base
has been engaging in a very aggressive continuous improvement
campaign the last few years involving this same type of thing
where we have disconnected bodies of people who contribute to a
problem. And I would put to you that this process has to be
facilitated by someone from outside the Government who is an
expert--top-notch at resolving these problems. The idea of
charting isn't necessarily Power Point presentations, it is
called value stream mapping, so that each organization has a
golden opportunity here to improve what they are responsible
for, and together perhaps improve the entire process of
resolving employee disputes and issues.
There is a lot of good material out there, it is
organizational quality improvement stuff, and I think it is
right on point with your efforts. Congressman Davis, you had
asked if anyone was not represented. I have some food for
thought on that. Due to no lack of effort on the part of my
fellow panelists, Mr. Gage and Ms. Kelley and their peers in
the labor community, there are a lot of unrepresented, non-
bargaining unit Federal employees that don't have an outlet in
this voice.
And I don't like to offer problems without suggested
solutions. The best one I could come up with right now is
perhaps a detailed posting by OPM for 1-year assignments to
this commission for your thoughts.
Thank you very much. I am happy to answer any questions you
have.
[The prepared statement of Ms. Heiser follows:]
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Mr. Porter. Thank you very much.
You mentioned 22,000 cases and 300 and some. This is really
a question for everyone on the panel today. Of the 22,000, a
figure for the comment, how many of those are filed where they
actually know that they are not a legitimate complaint, would
you guess?
Mr. Gage. I am really glad you asked that, because I hear
this frivolous complaint issue. Here is what this is about. And
a lot of it is right up front, due to timeframes. Someone will
come into the union office, had my leave denied. OK. We have 2
more days, you have 15 days to file union grievance, maybe this
happened 2 weeks ago. But I think they didn't do it because I
don't think they like me because I am a woman or I am a Black
person or whatever.
So now, we have a discrimination complaint. Or we have an
allegation. Perhaps the union steward will put that into a
counselor--that is the first step--the 45 day counselor. Now,
after the counselor's report, it could be that this is not an
EEO case. This should have been handled under the contract and
under the grievance procedure, but you can't get back to the
grievance procedure, because the timeframe is gone.
Mr. Porter. Yes, we have finished that 45 days.
Mr. Gage. Yes. And I think a lot of these cases that are
termed frivolous are not EEO cases, but they are legitimate
cases that should be handled.
Mr. Porter. Going on the wrong path.
Mr. Gage. It is going on the wrong path. Now, we have
negotiated some things where we would apply the grievance
timeframe after the 45 day of the counselor. So I don't think
it is in anybody's interest that you have a case in the wrong
forum. Management has to go and investigate the thing and do
all that, when right up front, that matter can be taken care
of, if there was some time for a little investigation just to
make sure the person was in the right forum. And I will bet you
that is half of your frivolous cases.
Mr. Porter. John, let me go back to that a second. So
somebody walks in with a problem. Explain to me how it is
assigned.
Mr. Gage. Well, the steward has to advise the person of
their rights. You have 15 days to file a grievance, 2 days if
it is a leave issue. But then the person might say something
that sounds discriminatory. Now, the steward then is really
caught between a rock and a hard place about giving the person
proper rights. And many times, they will throw the thing,
saying, go to a counselor, or see if it is EEO, I can't tell
right now, but all I do know is I have 1 day to decide.
Mr. Porter. So they may err on the side of safety to put it
into the system?
Mr. Gage. Exactly. And I think a lot of employees do that,
too.
Ms. Heiser. I think that brings up a huge problem, or a
huge, I shouldn't say problem, but an issue with any resolution
of issues like this, is that there is really no baseline data.
This EEO report, which happens to be the only one I have, is
filled with huge numbers. And huge numbers lead to huge
questions. I don't know that there is any baseline data as to
exactly where all these cases do come from and if there are any
common threads in them. I think that would have to be done as
any type of an improvement process these folks engage in.
Ms. Kelley. I would also suggest, Mr. Chairman, that you
really have to look behind each case to see what drove the
conclusion. Many of them are settled. There is a lot of push to
settle. And there is an interest in both parties, everyone
involved, to bring it to a conclusion. I can tell you from the
issues that NTEU deals with in this forum that our goal is to
get this resolved sooner rather than later for everyone
involved, so that it is not just hanging out there.
I don't think there is really a solid way to measure what
is frivolous. There are easy allegations to make, but I have
never seen data that first defines what that means, what it
means to an individual, and then second, what the criteria are
that could even be measured against, rather than just kind of a
general framing that really sets a bad tone and implies that
those who come to the system for help are doing a bad thing. It
should be an avenue of appeal for them to feel safe and not to
be charged with being frivolous because they have questions
they can't get answered, and this is an available forum.
Mr. Bransford. Mr. Chairman, if you look at the EEOC
statistics, 23,000 cases, a little over 20 percent are settled,
345 cases had findings of discrimination, my calculation is
about 17,000 cases that were not settled, that were not
findings of discrimination. Now, a good percentage of those I
think are frivolous, and I think Mr. Gage makes an excellent
point when he says that people file EEO complaints because they
are unhappy with something that happens at work, even when they
have no evidence whatsoever of discrimination.
And I think that gives rise to the need for an effective
grievance procedure, an effective complaint procedure. I think
because of the complexity of the time limits and the going back
and forth, sometimes you can, sometimes you can't, it is very
legalistic, I think that is one of the reasons why the Senior
Executives Association put forth the idea of going to one place
with one time limit, you bring an employee issue there and you
bring your points in and then somebody takes a look at it early
on and makes a decision whether there is merit to go forward
with it, or whether there is no merit, whether you don't set
forth a claim. I think you could get a handle early on on some
of these frivolous cases and get them out of the system before
they clog it up.
Mr. Porter. It does seem to me the term frivolous, we have
to be careful with that. Because many times, it sounds like it
is just the direction or the decision on which course to take
may have sent it on the wrong path. That doesn't make it
frivolous. And I understand that first party is going to be as
cautious as possible and try to make sure they do have all the
checks and balances.
And again, I appreciate this being very informal, I think
everyone here wants the same thing, we want to help the
employee. Without creating another organization, if I were to
put together a suggestion as the Congresswoman mentioned, but
that suggestion would be that there be a screening panel made
up of stakeholders that would help with that first step. Not
creating another whole organization or another whole layer of
Government, but a coordinated effort between the different
agencies of a clearing panel. I can give an example--maybe I am
oversimplifying it--but in Nevada, we are not sure if we still
do, but we had a screening panel for lawsuits for medical
liability claims where there was a panel made up of doctors and
lawyers and stakeholders that would look at lawsuits before
they could go forward to have proper findings.
But it seems to me that if we could help with a
clearinghouse for the first step, that would really help the
process, just have a screening panel that would help decide
which avenue to take. What do you think about that?
Mr. Gage. I think it is in everyone's interest to get in
the right forum, first of all.
Mr. Porter. Yes, because that has to save a lot of time.
Mr. Gage. It absolutely would. And I really feel just from
practical experience, when our union tries to prosecute EEO
cases that really are good grievances, they are not EEO. And
that has to be up front. And there has to be a process up front
to be able to really get the employee, first of al, in the
right direction. Regarding screening processes, I would like to
hear more what you think.
Mr. Porter. I am thinking out loud, and I would like to
spend a little more time on this, but I am just looking for
other ideas. Thank you.
Mr. Davis.
Mr. Davis. The idea of a screening panel is kind of
interesting. Of course, a question would be, how do you arrive
at decisions? I mean, if you are seeking consensus, I think
that is one process. If you are going to be willing to end up
with a partisan kind of voting process, that is another
process. I just don't know how well that works when where you
stand often determines the outcome.
Or another way to put it is where you sit I find in life
often determines where you stand. Some people will see this
glass as half filled and somebody else will look at as half
empty. And trying to get consensus becomes very difficult.
Although I think it would be great if we could actually work
toward that.
My question is, though, Mr. Bransford, you support, that is
the Senior Executive Association sees some merit in the concept
of a Federal appeals process, right? And with some tweaking and
some additions or subtractions or deletions that you could see
it having some merit.
Mr. Bransford. Congressman Davis, that is our proposal to
solve the problem. First and foremost, we think there is a
problem and we think that the commission as proposed and some
of the ideas discussed here today, if they could be added to
the legislation to get the input of other groups, to issue a
report to solve this problem, I feel that a consensus could be
reached, and I think a consensus should be reached. I don't see
or envision an idea of minority reports or dissenting opinions
or anything like that.
So I would hope that these stakeholders, people of good
faith and a lot of knowledge and experience with the system,
could come together and make recommendations for effective
reform.
Mr. Davis. Ms. Kelley, if I understand your position, you
are not as optimistic about that.
Ms. Kelley. That is true. I am not. I have been a member of
a panel like this before, where the hope and intent was
consensus. It ended up exactly, Congressman Davis, as you
described, as rather a partisan report with dissenting views.
And that was in large part, in my view, based on how the group
was made up from the very beginning, which I know is a point of
interest to you as to what the makeup should be, and the fact
is, as it is proposed, even though NTEU is very clear that we
are opposed to the commission, we don't think it is even
necessary.
But if there were to be anything, the idea that two seats
of eight, I believe, would be union representatives surely is
important to have our voice there in the conversation. I would
rather be in the conversation than on the outside, sending in
messages or notes.
However, if the die is cast because of the makeup of the
group, then that casts a question about the hope and the intent
of putting the group together in the first place. So I do have
concerns.
Mr. Davis. And Mr. Gage, you are even less optimistic, if I
read you correctly.
Mr. Gage. I am always more optimistic than Colleen.
[Laughter.]
But I agree with her right down on the line on this. We
have been in this movie before, when we tried to really solve a
problem and it comes down to employees losing rights, rather
than a protection of their rights. We have seen that in a
couple of other forums in this town.
Ms. Davis. Ms. Heiser, your organization does see merit.
Ms. Heiser. We think the problem is not clearly enough
defined to set a target to find a solution. We think that the
problems need to be explored a little more thoroughly. There
are very different approaches that MSPB and EEO see. And we
certainly did not use the term frivolous lightly. We think
that, for instance, the EEO process is less structured and that
it is easier for an employee to file something, and the promise
of settlement is there for every single process. We think that
facet of EEOC hurts legitimate claims.
So we think that the problem really needs to be defined
more before aiming for a solution.
Mr. Davis. The interesting thing that I find is that we all
represent employees. All of you represent employees. Yet you
see this somewhat differently. I wonder if anybody would be
interested or willing to venture to speak to why you might see
it differently. Although the bottom line is that all of you
represent employee groups, but different groups of employees, I
guess, have different experiences. And based upon their
experiences, sort of see things differently. And therein lies
also a problem of not being able to just say, this is a labor
management, Black or White kind of issue. But there are other
factors involved in the process of determining the outcome.
If there were more representation from stakeholders in the
proposal, Mr. Gage, Ms. Kelley, would either of you see
yourself moving closer to support of the proposition?
Ms. Kelley. I think it would depend on a lot of other
things, about how the commission was framed, what the mission
statement or whatever the charter was, what the decisionmaking
process would be. If there were to be facilitation, if that
would be to truly move toward a new solution rather than
everyone defending turf or just assuming that the process is
not just to streamline the process, but to streamline employee
rights. And I don't hear the subcommittee saying that.
The interest in maintaining rights has been stated over and
over. But that is not what I hear from everyone who would be
involved in this. And if that was the goal, if it was stated up
front, employee rights will not be decreased, and the goal is
to figure out how to have a better process, a streamlined
process that does not decrease employee rights, that is a
different conversation than a lot of what I am hearing from
some involved in this process.
Mr. Davis. Would any of you be willing to just give your
rights away to an independent commission, say, we put our faith
in the old independent commission, and whatever you arrive at,
we think you are going to be fair, we think you are going to be
just, and we are going to get our just view and go on about our
business?
Mr. Gage. No, I don't think that would happen. It is just
of--I don't know, it is tough for the unions to step out there
and some would distrust us at this point in time. So I think
that we would really have to have this guarantee that this
would not be a forfeiture of employee rights and it is to truly
to streamline a system and making justice a key word.
Mr. Bransford. I think, Congressman Davis, first and
foremost, that SEA's proposal is to protect employee rights and
not diminish them. We were on the forefront of protecting the
Merit Systems Protection Board appeal rights when those were
challenged in the initial proposals for reform at the
Department of Homeland Security and the National Security
Personnel System. And there was, some of those initial
proposals would have been a far greater diminishing of employee
rights than ultimately occurred. We believe that is a very,
very important part of this process.
But I think there are a lot of things. And one of the first
things to do is to take the EEO system out of the agencies.
This is something that was, I think Ms. Dominguez, Chair
Dominguez was getting at, and Chairman Porter's idea of a
screening panel. These are all things this commission can
discuss. How do we get the EEO system out of the agencies so
that there is no conflict of interest, so that the people are
comfortable getting rid of these cases where employees
complain, raise an EEO complaint because their supervisor did
not say hello to them that morning. Those kinds of complaints
are filed and they are investigated and they do clog up the
system.
Ms. Kelley. But I would also say that taking the
investigation process out of the EEOC can be done without
forming a new commission to look at how processes can be
streamlined. I mean, if everyone agrees that is an issue that
needs to be looked at, I think we have heard from a lot of
different parties that is an ongoing issue for employees at
every level of the organization, then that can be addressed. We
don't need a commission to do that. Let's just focus on that,
acknowledge it is a problem.
My concern over the idea of an independent group coming up
with something that we just all accept is that I know there are
a lot of, and a lot of them have been mentioned, very highly
qualified independent groups who I think would be very valuable
participants in the commission, if it were formed, even though
NTEU is opposed to it being formed.
But I have to tell you, when I hear the references that I
hear to why this process needs streamlined, it is that only
some small percentage of EEO cases are ever found to be valid
and 17,000 of them are frivolous and that the MSPB rolls 80
percent of the time in favor of management are not compelling
issues to me, that give me any comfort that if those are the
kinds of facts or the foundation that anybody is going to be
looking at as a criteria for the future, that does not bode
well for front line employees who are depending on a fair and
credible process.
And you will not find those kinds of decisions and numbers
in negotiated grievance and arbitration processes that we
pursue for the majority of issues that employees face in the
workplace today. Because it a much more, it is a fair, open
process, it is not about a lot of things we have heard
described here today. So that would be my concern over just
saying yes to anyone.
Mr. Davis. Thank you all very much, and Mr. Chairman, I
want to thank you. I know that Solomon has been looking for a
running buddy for a long time. [Laughter.]
Mr. Porter. One last question, and you don't need to
elaborate. And I hate to admit it, but I am going back to what
John said, I don't want to give John too much credit, but I
will for the moment.
How many of these 97 percent or whatever are really just
misdirected from the beginning to the system?
Mr. Gage. I did one look at one particular local, and it
was over half.
Mr. Porter. I wouldn't doubt it. At a minimum probably
half.
I am going to leave you with one thought. If there was a
panel that provided guidance, not a mandate, but just a
recommendation on the steps to follow, and certainly leave it
to the employee to make the final decision, but if I were an
employee and I had a problem, I would just like to know where
to go for help. And I would like to know that I am going the
right pathway. I would like to know that I am not wasting my
time or anybody else's. I think most folks would want that
option.
They may disagree with that guidance, and if we allowed the
option to continue down the path, I still think we would free
up a lot of time and help the employee in a much more rapid
response and proper direction. I am going to be looking at
different options, because again, I think everyone is looking
for the same thing. But I wouldn't want to take away any of the
employee's rights. I would actually like to enhance the tools
they have available to them, so they can get it resolved
quicker.
So with that, let me say thank you all very much for your
testimony. We appreciate your all being here, and the meeting
is adjourned. Thank you very much.
[Whereupon, at 5:05 p.m., the subcommittee was adjourned.]
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