229

employees and virtually all managers under the age of 45 are nonpreference eligible
employees. Prior to passage of PL 100-90, they had no access to an appeal process outside
the Postal Service except for the EEOC process. Without access to the MSPB, non-veteran
postal employees with many years of service could be dismissed arbitrarily without any third-
party recourse,

‘When this legislation was first introduced, it was considered necessary because the
existing appeals procedures were thought to be obstructive to due process, "There are
possibilities of conflicts of interests when an appeals case is reviewed by the same agency
which made the adverse action decision” [ Oct. 9, 1985 hearing before the Postal Personne!
and Modemization Subcommittee]. _In the internal appeal process, the Postal Service served

as investigator, prosecutor, trier of charges and decisionmaker. The Postal Service's internal
personne! procedures were relatively informal , did not provide an outside adjudicator and the
tendency was to support the original action, MSPB has provided low cost access to
appellants of a timely and efficient third-party appeals process that includes an opportunity for
settlement at initial and appeals level.

A benefit of the high settlement rate in MSPB cases is that it has protected agencies
from costly federal proceedings. MSPB process provides an opportunity to expedite the
resolution of problems, clarifies the issues and allows parties to focus their objectives and
Tesources more efficiently. As a result, fewer public resources are being spent on litigation
by the agencies. In the case of the Postal Service, the reduced costs are enjoyed by
ratepayers in the form of less costly postal rates. At the same time, the MSPB proceedings
protect federal and postal employees from arbitrary actions.


US. Merit Systems Protection Board
Initial Appeals of Agency Actions - FY 1995

Types of Initial Appeals—Filed*

Incvicual Fight of Acton 2% (13)
Retirement: Overpayment 2% (213)

Denial of Within Grade 1% (51)
‘Termination of Probationers 2% (218)

Reduetion in Force 18% (1,619)

Total Number of Initial Appeals: 8,785
Percentages do not total 100% because of rounding.

* Excludes motions for attomey fees, petitions for enforcement, stay requests, and remands.


123

The number of RIF appeals has increased dramatically
since 1993 when I became Chairman.

Year RIF Appeals Percent of Increase
Total Appeals over prior

year

FY 1995 2,303 24% 252%

FY 1994 654 98 93%

FY 1993 339 5%


25

outgrowth of passage of the Civil Rights Act of 1991, which
raised the stakes in discrimination cases by allowing
complainants to receive compensatory damages of up to $300,000

and a jury trial in District Court."
Vulnerability to Misuse

Officials from EEOC and other agencies have said they are
burdened by cases that are not legitimate discrimination
complaints. We were told that some employees file complaints as
a way of getting a third party's assistance in resolving a
workplace dispute. We were also told that some file frivolous

complaints to harass supervisors or to game the system.

All sorts of matters become the subject of discrimination
complaints, and they are accorded due process. Here are two
examples, drawn from recent issues of the newsletter Federal
Human Resources Week: A male employee filed a formal complaint
when a female co-worker with whom he had formerly had a romantic
relationship ‘harassed him by pointedly ignoring him and moving
away from him when they had occasion to come in contact.*
Another claimed that he was fired in part on the basis of his
national origin: ‘American-Kentuckian.*

UFigures on compensatory damage awards are not available. These
amounts are not reported separately, but are, instead, lumped
together with figures for back pay awards. Back pay awards

increased nearly threefold from $8.2 million in fiscal year 1991
to $24.1 million in fiscal year 1994.

13


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149

out” regulation for retaliatory NIH managers. To date, there is
broad consensus that this new NIH “Anti-Retaliation Directive” has
not been effective: Many NIH managers continue to abuse the
employee grievance system, by committing unchecked reprisals,
especially in the fabrication of inappropriately~low performance
ratings against any employee who dares to file a grievance.

The challenge for Congressman Mica’s committee is to answer the
question, "Why would managerial reprisal against those federal
employees who file grievances be a problem at the National
Institutes of Health -- our nation’s premier health institution --
an organization that prides itself as being an “Agency of Healers?”

The answer to that question lies in the previous testimony that was
provided to Congressman Mica“s committee in 1993, indicating that
“too many federal managers also take advantage of the system.":
Simply stated, these managers believe that the appeals system will
allow them to get away with such abuse. Unless the upcoming
Congressional reform package for our appeals system includes
guarantees of impartiality (i.e., the a priori assumption that the
cited manager may be juet as guilty/deficient as the grieving “poor
performer"), the proposed Civil Service Employee Appeals System
reform package will only magnify federal government inefficiency,
not improve it.

The most straightforward way to eliminate the managerial component
of the abuse of the Federal Appeals System would be for Congress to
insist on a “Zero Tolerance Policy” against those federal managers
that commit reprisal against their employees. Congressionally-
mandated “Zero Tolerance” policies have proven effective in curbing
sexual harassment at the Navy and in lowering IRS employee
“snooping” into the taxfiles of their neighbors, why not give a
Congressional “Don’t even think about it!" message to federal
managers who are contemplating reprisal?

If the upcoming reform of the employee appeals system doesn’t also
address the well-documented “other side of the story”, the ability
of our federal agencies to serve the needs of our taxpayers will
only be further compromised.

Henry Stevenson-Perez, M.D.


COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
WILLIAM F. CLINGER, JR., Pennsylvania, Chairman

BENJAMIN A. GILMAN, New York

DAN BURTON, Indiana

J. DENNIS HASTERT, Illinois

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

STEVEN SCHIFF, New Mexico

ILEANA ROS-LEHTINEN, Florida

WILLIAM H. ZELIFF, JR., New Hampshire

JOHN M. McHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

PETER BLUTE, Massachusetts

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

JON D. FOX, Pennsylvania

RANDY TATE, Washington

DICK CHRYSLER, Michigan

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

WILLIAM J. MARTINI, New Jersey

JOE SCARBOROUGH, Florida

JOHN B. SHADEGG, Arizona

MICHAEL PATRICK FLANAGAN, Illinois

CHARLES F. BASS, New Hampshire

STEVEN C. LaTOURETTE, Ohio
MARSHALL “MARK” SANFORD, South

ROBERT 1 L, EHRLICH, JRr., Maryland

CARDISS COLLINS, Illinois

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, Jr., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

JOHN M. SPRATT, Jr., South Carolina

LOUISE McINTOSH SLAUGHTER, New
York

PAUL E. KANJORSKI, Pennsylvania

GARY A. CONDIT, California

COLLIN C. PETERSON, Minnesota

KAREN L. THURMAN, Florida

CAROLYN B. MALONEY, New York

THOMAS M. BARRETT, Wisconsin

GENE TAYLOR, Mis

BARBARA-ROSE COLLINS, Michigan

ELEANOR HOLMES NORTON, District of
Columbia

JAMES P. MORAN, Virginia

GENE GREEN, Texas

CARRIE P. MEEK, Florida

CHAKA FATTAH, Pennsylvania

BILL BREWSTER, Oklahoma

TIM HOLDEN, Pennsylvania

BERNARD SANDERS, Vermont
(Independent)

James L. CLARKE, Staff Director
KEVIN SABO, General Counsel
JupirH McCoy, Chief Clerk
Bub MYERS, Minority Staff Director

SUBCOMMITTEE ON CIVIL SERVICE
JOHN L. MICA, Florida, Chairman

CHARLES F. BASS, New Hampshire
BENJAMIN A. GILMAN, New York
DAN BURTON, Indiana

CONSTANCE A. MORELLA, Maryland

JAMES P. MORAN, Virginia
BERNARD SANDERS, Vermont (Ind.)
TIM HOLDEN, Pennsylvania

Ex OFFICIO

WILLIAM F. CLINGER, Jr., Pennsylvania

‘CARDISS COLLINS, Illinois

GEORGE NESTERCZUK, Staff Director
Counsel

GARRY

Ewmnc,

CAROLINE FIEL, Clerk
Cepric HENDRICKS, Minority Professional Staff

dab


119

HE REHABILITATION ACT

Based on the plain language of section 50! of the Rehabilitation Act, part 1614 specifies that the
legislative and judicial branches are not covered under that Act. Current users of illegal drugs,
with some exceptions, are now excluded from the definition of an individual with a disabi
under section 512 of the Americans with Disabilities Act.

Part 1614 prescribes reassignment as a special affirmative requirement under section 501. The
reassignment obligation would not be a component of the statute’s reasonable accommodation
requirement under section 504. The agency should consider reassignment whenever an
employee with a disability can no longer perform his or her job and must reassign such an
employee whenever the circumstances described in the regulation are met.

OPTING OUT OF CLASS COMPLAINTS

Part 1614 eliminates the opting out provisions contained in part 1613 that preserved the
individuals right to file his or her own complaint or lawsuit. All class members will receive
notice that the class complaint has been filed and notice of any settlement or decision on the
class complaint. If they do not wish to participate in the class or to file a claim for individual
relief, they do not have to do so. Those wishing to participate will have the opportunity to
object to any proposed settlement and to file claims for individual relief if discrimination is
found.

ELECTION OF REMEDIES

Employees of agencies subject to 5 U.S.C. § 7121(d) and covered by a collective bargaining
agreement that permits allegations of discrimination to be raised in a negotiated grievance
Procedure must elect initially to purwe a matter that is both grievable and allegedly
discriminatory either through the negotiated grievance procedure or under part 1614, but not
both. An aggrieved employee who files a complaint under part 1614 may not thereafter file a
grievance on the same matter. Likewise, an aggrieved employee who files a grievance alleging
discrimination may not thereafter file a complaint on the same matter under part 1614. A
grievant maintains the right to appeal to EEOC from a final grievance decision.

Agencies not subject to section 7121(d) may, but need not, hold a complaint in abeyance during
the processing of a grievance on the same matter provided they notify the complainant. This
provision was added in consultation with the U.S. Postal Service which estimates it may reduce
the number of charges that will require processing by 2,000 or more a year. If agencies elect
not to hold the complaint in abeyance, the normal time limits apply and the agency must issue
a notice of final action on the complaint within 180 days.


68

IMPACT OF MSPB STUDIES

In addition to providing protection from prohibited personnel practices through its
adjudicatory responsibilities, the Merit System Protection Board (MSPB) was given
statutory responsibility to conduct special studies of the civil service and other merit
systems in the executive branch—including oversight reviews ofthe U.S. Office of

ersonnel Managerhent. This authority provides a neutral, independent review of
Federal HRM policies and procedures on a systemic basis.

Since the Board's first special study report was issued in March 1981 to the present,
licy changes and other positive actions have implemented the recommendations ofthe
joard's studies. We have summarized a representative sample of such changes below.

The effectiveness and utility of the Board's studies cannot, however, be measured by
tracking policy changes alone. In many cases, we have found that the existing policies
are sound but are being poorly implemented or are not being implemented at all. That
being the case, the summary includes examples of actions taken to improve policy
implementation as a result of the findings of one or more MSPB studies.

Another beneficial impact of the Board's studies is that they inform the public debate on
how to improve and maintain the effective and efficient operation of the civil service
system. There is obvious value in providing new and useful data on important issues or
problems as an aid to the decision-making process. Even demonstrating that a
articular policy or program is actually working and should be retained has value.
herefore, we have also listed instances where the Board's studies have constructively
influenced the direction of public policy deliberations.

Another recognition of the positive value of MSPB studies, is the receipt of the 1994
Elmer B. Staats Award for Accountability in Government, an award presented annually
by the National Capital Area Chapter of the American Society for Public
Administration to the individual or organization that the provided the greatest
contribution to the furtherance of accountability for overnment. The award
citation noted that the Board's studies program has “helped to redefine boundaries and
focus debate with insightful governmentwide examination of such basic issues as the
changing roles of OPM and the Federal personnel offices and the effect of current
recruitment, examination, and selection practices on Federal workforce quality and
diversity...{and] has been a forceful advocate of accountability for effective human
resources management consistent with the merit system principles.”

‘SELECTED EXAMPLES OF THE IMPACT OF SELECTED MSPB STUDIES:

= "Removing Poor Performers in the Federal Service" (September 1995)

Released as an MSPB “issue paper," this compilation of data from a forthcoming
MSPB study was the basis for testimony by the MSPB's Director, Policy and
Evaluation before the House Committee on Government Reform and Oversight,
‘Subcommittee on Civil Service on October 26, 1995. The data illustrated that
current statutory procedures (5 U.S.C. 4303) for removing poor performers are
seldom used for reasons based on both fact and managerial perceptions and that
both will neéd to be addressed in gitemprs to make meaningful change. Ona
more positive note, however, the Board found that supervisors do take actions,


152

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719

STATEMENT OF PHYLLIS N. SEGAL, CHAIR
FEDERAL LABOR RELATIONS AUTHORITY

Mr. Chairman and Members of the Committee:

Thank you for this opportunity to appear before you to testify on behalf of the
Federal Labor Relations Authority (FLRA) about “streamlining the federal appeals
process.” My testimony will emphasize the importance of this effort in the context
of reducing the costs of federal workplace disputes and increasing the
effectiveness and efficiency of our government.

| would like to take a moment to introduce those who are here with me today.
First, Tony Armendariz, who has been an Authority Member since his appointment
in 1989, The third seat on the Authority is currently vacant, but we hope it will
‘soon be filled by Donald Wasserman, whose nomination by the President is
currentty pending in the Senate. Joseph Swerdzewski, the FLRA’s General
Counsel, is sitting at the table with me, as is Betty Bolden, the Chair of the Federal
Service Impasses Panel (the Panel).

As | will explain shortly in more detail, both General Counsel Swerdzewski and
Chair Bolden lead independent components within the FLRA. At the Committee’s
request, | will make the opening statement for all three of these components, in my
role as the FLRA’s Chief Administrative and Executive Officer. | note, however,
that both General Counsel Swerdzewski and Panel Chair Bolden have accepted the
Committee's offer to submit written testimony. They also are available to answer
the Committee’s questions conceming their particular components or any other
issue.

THE FLRA

The stated focus of today’s hearing is the appeals process for federal employees.
At the outset, I'd like to clarify that federal employee appesis are only one aspect
of the FLRA’s responsibilities; indeed, these account for a relatively small
Percentage of the types of disputes we resolve. First, agencies and unions, and
only rarely federal employees, bring issues to be resolved to the FLRA. Second,
only some of these issues are “appeals.” As | will explain, the focus of the FLRA’s
work is really federal workplace disputes and institutional relationships, as opposed
to the appeals process for federal employees.


aS)

My observations today are based on interviews with officials at
the adjudicatory agencies, the Office of Personnel Management
(OPM), and the now defunct Administrative Conference of the
United States; analysis of data on case processing provided by
the adjudicatory agencies; and a review of the redress system's
underlying legislation and other pertinent literature. In
addition, my remarks draw upon a symposium GAO held in April of
this year at the request of Senator William V. Roth, Jr., then
Chairman of the Senate Governmental Affairs Committee, with
participants from the governments of Canada, New Zealand, and
Australia, as well as private sector employers such as Xerox,
Federal Express, and IBM.? The proceedings added to our
awareness and understanding of current employment practices

outside the federal government.
A COMPLEX AND DUPLICATIVE SYSTEM
Today, executive branch civil servants are afforded opportunities

for redress at three levels: first, within their employing

agencies; next, at one or more of the central adjudicatory

and finally, in the federal courts. Although one of

‘My comments focus on the redress processes available to
individual employees, both within and outside of collective
bargaining units, but not on the collective bargaining processes
under which unions can appeal agency actions affecting the groups
they represent.

3We will be issuing a full report on the symposium in the near
future.

3


230

This is not a process which prevents agencies from dismissing poor performers. As
MSPB Director of Policy and Evaluation Evangeline Swift testified on Oct. 26, only 20
percent of all removals and demotions are appealed to MSPB. Of those initial appeals that
are not dismissed, the agency action is overtumed or a penalty reduced only about 13 percent
of the time. Presumably, the concems raised by the Senior Executives Association witness at
the October 26 hearing were more focused on the number of appeal avenues for employees,
such as the grievance process and the EEO process, rather than on any specific appeal
procedure.

‘The goal of any appeals process is that it should be as straightforward and
uncomplicated as possible and that proceedings and rulings should be timely. Appeals
Boards such as the Merit Systems Protection Board or the National Labor Relations Board
were created to stop the flow of cases to federal court. Additionally, MSPB helps to resolve
conflict very efficiently — cases are handled in about 120 days. Removing the MSPB appeals
process would actually end up being costly to federal agencies, to the Postal Service and,
ultimately, to the public because adverse actions would be appealed before the federal court.
However, expanding the number of cases it handles may overburden the system without
providing more timely results for appellants. We will be interested to see further information
‘on the Subcommittee's proposal.

‘This concludes my testimony. Thank you for allowing us this opportunity to present

our views.


197

Mr. Mica. We will now turn to Clinton Wolcott, assistant counsel
of the National Treasury Employees Union.

Welcome. .

Mr. Wotcott. I am here today on behalf of Robert Tobias, presi-
dent of the National Treasury Employees Union, and I would ask
that the Union’s full testimony be placed in the record.

Mr. Mica. Without objection.

Mr. WoLcort. I will make brief comments. |

We welcome this opportunity to discuss the complaint handling
procedures that are now available in the Federal Government.

In listening to earlier witnesses and comments that came from
the subcommittee, there was one theme that recurred over and
over. It was that we should look to the private sector and we
should use alternate dispute resolution procedures more effectively.
NTEU fully concurs that this is the approach that should be taken
in streamlining the Federal complaint handling system.

The current system does have important elements that are simi-
lar to those used in the private sector and that incorporate signifi-
cant ADR procedures, and we think that those procedures should
be expanded and used more.

Our experience is that the real success story of the current sys-
tem has been in development of these less formal procedures. In
particular, the most important of these is the use of mandatory

ievance and arbitration procedures introduced in the Civil Serv-
ice Reform Act and abbreviated negotiated grievance procedures
that are now available for almost every dispute that arises in the
workplace, and NTEU uses these procedures for almost every kind
of employment dispute. The process is very efficient, very fair.

We have also adapted new types of consensual dispute resolution
procedures to other contexts where the Statutory procedures do not
work effectively. For example, we use hybrid mediation arbitration
procedures in contract negotiations. This avoids using the Federal
Service Impasses Panel procedures and other types of administra-
tive procedures that can be cumbersome. The parties agree on the
procedure to resolve the contract disputes, and it works quite well.

We have also been very active in developing quality of workplace
programs and partnership programs with agencies. These forums
are available for the discussion of the issues before they become
disputes, and they are very—also very effective in reducing the
number of workplace disputes.

We think that any effort to streamline Federal complaint proc-
essing should begin with these types of procedures, and we think
that these procedures can become the exclusive procedures for
many of the complaints of Federal employees. We would propose
that that jurisdiction of the MSPB over bargaining unit employees
is no longer necessary, that the complaints that are currently han-
dled by MSPB can be handled through grievance and arbitration
without any problem and that that would be a streamlining process
that would be very cost effective and advantageous to all the par-

ies.

Two other issues that I would like to address that have come up
today: First, there is a significant problem in handling of discrimi-
nation complaints throug! the current internal agency complaint
procedures. These procedures lead to enormous delays, and I know


128

dro ping, just as our grievances from employees that don’t relate
to OC have dropped dramatically in this year. And that just
proves the point, I think, that was made earlier, that you have got
to deal with it in the workplace. I mean, you can’t let things esca-
late into—into the sort of more formal process.

So I brought with me the years of private—all of my experience
was in the private sector. So I brought that experience to bear, and
we have attacked those things at the outset and not allowed them
to escalate into a formal charge or formal grievance; and I think
that that’s what we are encouraging Federal sector agencies to do.
We have no enforcement power vis-a-vis the Federal agencies, as
we do in the private sector. So all we can do is cajole and encour-
age and monitor their performance.

Mr. Mica. Well, GAO testified in the previous panel that Federal
employees file complaints at a rate of 10 times the private sector.
Is there something Congress could do to lessen the filings? Should
there be some type of a fee? Should the loser pay? Should there be,
you know, some of the costs—should there be something done to
discourage some of this? Or do you think this should be a standard
operating procedure?

Mr. CASELLAS. Well, I question the premise that certainly the
number of charges that are filed in the private sector is one num-
ber. That doesn’t represent the universe of cases out there, nor
does it represent the number of EEO issues that get resolved be-
fore a formal charge.

In addition to that, there are 179 State and local fair employ-
ment practices agencies which themselves process nearly 100,000
cases of employment discrimination a year.

So the question is, what numbers we are using and are we really
comparing the same things?

Mr. Mica. Well, now I will get back to you.

Ms. Segal, I would like your additional criteria and we will add
that——

Ms. SEGAL. Thank you.

Mr. Mica [continuing]. To our little agenda items.

I will yield now to the ranking member, Mr. Moran.

Mr. Moran. Thank you, Mr. Chairman. It was impressive testi-
mony by all four people involved, and it makes it clear why it
would be difficult to consolidate some of these appeals processes,
because from each of your perspectives, you are fulfilling an essen-
tial function and not as duplicative a function as we might be led
to believe by outside agencies’ observations and reports.

Mr. Casellas, you gave some impressive testimony loaded with
facts and figures to dispute some of the assumptions that are going
around; but some of those assumptions seem to be borne out by
facts as well. In 1992 and 1993, for example, the complaints that
were filed by employing agencies went up almost 40 percent. The
requests for an EEOC hearing went up by 85 percent. The appeals
to EEOC of agency decisions went up by 42 percent. That’s just in
a 2-year period.

I find it hard to believe that the incidence of discrimination went
up by that proportion. In fact, some might suggest that the inci-
dence of discrimination actually went down, in other words, acted
in inverse proportion to the number of complaints.


134

correlation between those and our training and intervention with
parties to give them interest-based problem-solving tools.

We are also encouraged by the early results from a pilot project
we launched about 4 months ago where our Office of Administra-
tive Law Judges, who act—who hold hearings on unfair labor prac-
tice complaints, is intervening to help parties resolve their dis-
putes. In the 3 months it’s been operating, they have settled 76
percent of the cases where it has Geen ripe to intervene. That’s
translated to 32 fewer trials over that 3-month period. Each one of
those trials costs us money, costs the agencies money, costs every-
body concerned an expenditure.

So we believe all of those, as well as there are many other exam-
ples, add up to significant savings in dollars and in the ability to
rededicate our time in the Federal Government to performing our
mission instead of to fighting with each other.

Mr. HOLDEN. Thank you.

Ms. Segal, this is a followup question. I believe in your testimony
you indicated that making changes in the appeals system while the
government is in the midst of downsizing and decentralizing and
restructuring would not be prudent. Can you explain what you be-
lieve the adverse consequences, what you would foresee, should re-
form of the system be undertaken right now?

Ms. SEGAL. Well, any—any reform, any particular structural re-
form, involves some disruption in the work that’s already going on.
It’s an inevitable result unless—I guess I won't say it’s never pos-
sible to design something that gives you a seamless web, but I am
assuming any time you move anywhere, you know that as a house-
holder, there is a disruption in what you normally do.

At this point in time, each of the agencies either is or is antici-
pating an increase in their workload as a result of activities going
on elsewhere in the agencies. Just one example is our representa-
tion petitions. We are anticipating reorganizations throughout gov-
ernment will result in an increased number of petitions filed to
clarify what are appropriate bargaining units in the—and who
should succeed as the representative in the agencies as they are
reconfigured. We are in the process of promulgating new regs, in
anticipation of that, to be able to handle those better.

Any time disputes are increasing, the need for dispute resolvers
increases and the cost of delaying that resolution may be felt ineffi-
ciently elsewhere in government.

Mr. HOLDEN. T! you.

That’s all, Mr. Chairman.

Mr. Mica. I thank the gentleman.

I think I heard the Chair of the MSPB, Mr. Erdreich, comment
that you were trying to settle some of the disputes and problems
in the workplace at a lower level. And then | think I heard the
Chair of EEOC. Mr. Casellas, say the same thing.

Mr. Casellas, one of the things I wanted to wrap up with here
is, I have an Office of Federal Operations, EEOC report, and it’s
the Federal complaints statistics from 1984 to 1994, and it cites in
the 1980's, like 1984, the counseling contacts—this would be reso-
lution, I guess—and attempts to contact counseling at a lower level,
some of these disputes, 84,000, 86,000, 83,000, 79,000, mostly in
the high 70’s or 80’s; that’s from 1984 to 1992.


189

Federal Circuit would allow a universal body of precedent to be
established which would govern the employe

mployer relationship
in the federal government. There would be no forum shopping and no
conflicting precedents in EEO cases by the various circuit courts,

and finality would be achieved once and for all.

Some might say that thie system is too "legalistic." We think
that an accurate count of the number of attorneys in the various
federal agencies involved in employee-employer disputes would
establish that the present system is "legalistic." And, because of
the current system’s complexity, it is often only “understood” in

all of its nuanci

by attorneys. This streamlined system would

not, in our view, incr

the number of attorneys needed.

In the past there were two primary obstacles to overhauling

the current procedur 1) Federal employee unions/associations
and 2) the civil rights community. At this point, however, the
major federal employee unions and associations have concluded that
the process needs to be fixed and the appeals system streamlined.
While we do not know the attitude of the civil rights community
toward streamlining, ve believe that most would wish to retain the
rights of access of all federal employees to an independent Court

in EEO ci

+ The Court sugg

ed vould continue to provide this

ace

and would serve as a solution to the current multiplicity of

appeals processes.


178

With that background of dialogue as a starting point, a transition task
force composed of agency heads and key staff of the affected agencies may
serve as an effective vehicle for planning and implementing changes to the
present structure . Convening such as task force might serve to avoid the
implementation problems that were noted by the General Accounting Office
in its study of the reorganizations that took place in the wake of the Civil
Service Reform Act of 1978. And, based on my experience, I feel confident
that the leadership and staff of the agencies affected will work constructively
with the Committee in making appropriate changes to the federal dispute
resolution structure to make it simpler, more uniform, and efficient.

Mr. Chairman, | thank you for the opportunity to appear before the
Committee on this important civil service reform issue. I would be pleased to
respond to any questions you might have concerning my remarks.


14

Enhance Programs to Provide Family-Friendly Workplaces.

This includes a call for the Federal Government to be considered a “model
employer" and a recommendation to allow employees to use sick leave to care for
dependents which has been implemented, Both cite the Board's November 1991
study titled "Balancing Work Responsibilities and Family Needs: The Federal
Civil Service Response."

Strengthen the Senior Executive Service.

The October 1989 MSPB report titled “The Senior Executive Service: Views of
Former Federal Executives,” is cited as support for several recommended
changes.

Improve Accountability for Equal Employment Opportunity Goals and
Accomplishments.

To demonstrate the need for improved accountability, the NPR cites the October
1992 MSPB report titled “A Question of Equity: Women and the Glass Ceiling in
the Federal Government,” which demonstrates that lower promotion rates for
women in Government are in part due to the influence of non-merit factors such
as persistent and unfounded 8.

Strengthen Systems to Support Management in Dealing with Poor Performers.

‘The NPR draws heavily from the MSPB's April 1988 report, "Federal Personnel
Policies and Practices: Perspectives from the Workplace," to define the problem.

Reform the General Schedule Classification and Basic Pay System.

The NPR relies on the November 1989, MSPB report, “OPM's Classification and
Quatifieation Systems: A Renewed Emphasis, A Changing Perspective,” to
scribe the need for change. :

Create a Flexible and Responsive Hiring System.

NPR relies on two MSPB , the October 1989, "Delegation and
Decentralization: Personnel Management Simplification Efforts in the Federal
Government" and the April 1990, “Attracting and Selecting Quality Applicants for
Federal Employment,“ to provide justification for the need to change Federal
recruitment and hiring practices.

Decentralize Federal Personnel Policy.

The recommendation to decentralize recruiting and examining authority draws
support from references to the MSPB's August 1995 report, "Federal Personnel
Offices: Time for Change?"

Simplify the Procurement Process by Rewriting Federal Regulations—Shifting from
Rig tules to Guiding Prinaples.”. 8

The NPR references the conclusions from the July 1992, MSPB report,
"Workforce Quality and Federal Procurement: An Assessment,” to support the
need to take workforce issues into account in examining the procurement process.


32

Mr. Mica. I thank you, and we will get back to questions in just
a few minutes.

We are going to hear now from our second witness, Allan
Heuerman, who is the Associate Director of the Office of Personnel
Management.

Welcome back. You are recognized.

Mr. HEUERMAN. Thank you, Mr. Chairman. It is a pleasure to
appear back before you on this important issue.

Mr. Chairman and members of the subcommittee, I appreciate
this opportunity to come here today to discuss the Federal Govern-
ment’s appeals process. I will summarize my written submitted
statement.

As the agency responsible for human resource management pol-
icy in the executive branch and for protecting the merit system,
OPM believes that improving the Federal Government’s appeals
process can substantially contribute to a more effective and effi-
cient Federal Government.

While the dispute resolution process is only one aspect of OPM’s
interest in good government, it is an important one. Disputes with
employees, taking action against employees, and appealing and de-
fending agency actions have cost and value implications that can
affect the health and effectiveness of both individual employees and
the organization. Consequently, we commend you and the sub-
committee for providing this opportunity for its review.

In my written testimony, it is noted that today’s topic involves
consolidation in at least two basic senses: One, consolidation of the
various appeal systems; and, two, consolidation of the appeals
agencies.

My testimony also notes the importance of ensuring that the in-
terests of the stakeholders are addressed in any consolidation ef-
forts and suggests that stakeholders include at least the appeals
agencies themselves, Federal employees, Federal employee rep-
resentatives, Federal agencies as employers, management officials,
and, of course, most importantly, the taxpayer.

OPM is also a distinct stakeholder in the dispute resolution and
appeals system. A key responsibility of OPM is to ensure that the
Government’s commitment to merit principles is met, and OPM
works to fulfill this responsibility in a number of ways.

One, by protecting and assisting in the implementation of the
merit system principles; two, by regulating for Government agen-
cies the process to be used in taking adverse actions against Fed-
eral employees for conduct or performance reasons, which, in turn,
has a direct impact on the outcome of an appeal; third, by using
OPM’s statutory authority to intervene in employee disputes before
third parties, including arbitrators, so that matters having sub-
stantial impact on merit systems laws and regulations are correctly
and consistently decided; and, fourth, by exercising its oversight
role to identify and remedy systemic problems that adversely im-
pact on merit principles.

As part of its efforts to help implement National Performance Re-
view initiatives, OPM has also taken a number of steps to help
agencies improve their capacity to prevent and deal with employee
disputes.


224

employee disputes and arbitration, to name a few. One has to look at the relative merits of
these and any other altematives to develop a due process procedure that satisfies the concerns

for fairness, efficiency, and simplicity.

At the request of the agencies participating in our 1996 consortium, we are continuing
to address the question of overlapping or multiple appellate jurisdictions building on the work
we did this past year in meetings and workshops. Agencies asked that NAPA undertake this
review because our independent status should facilitate impartial development of a solution,
and because an objective, comprehensive study is needed to provide a proper baseline for
decisions about legislative change. Our Center for Human Resources Management is

currently targeting this review for completion in early 1996.

CONCLUSION

Congress, government managers, employees, and unions are seeking to improve the
performance and credibility of government. One of the first steps to be taken with respect to
employee appeals systems is to develop objective data upon which appropriate decisions can
be made to rationalize, streamline, or, in some cases if warranted, eliminate and consolidate

existing procedures for federal employee disputes.

NAPA recommends that Congress continue to review and study all current appellate
jurisdictions and systems with the objective of designing a new system with clearly delineated

jurisdictions, streamlined procedures, and timely decisions, while assuring due process for


108

3

IDENTIFYING ISSUES AND DEVELOPING STRATEGY. AS EVIDENCED BY
THE RECORD NUMBER OF FAVORABLE ACTIONS IN FY 1994, THE PSLOT
PROJECT WAS VERY SUCCESSFUL. CONSEQUENTLY, THE PILOT PROJECT
HAS BEEN IMPLEMENTED ON A PERMANENT BASIS.

MY REVIEW OF OSC PROCEDURES ALSO LED ME TO THE
CONCLUSION THAT TOO MANY CASES REQUIRED THE REVIEW AND
APPROVAL OF SENIOR MANAGEMENT. | BELIEVED THAT MANY OF THESE
DECISIONS SHOULD BE MADE BY ATTORNEYS AND CASE EXAMINERS AND
THEIR LINE SUPERVISORS. THIS ALLOWS FOR MORE EFFICIENT USE OF
MANAGEMENT RESOURCES AND, IMPORTANTLY, VESTS MORE OF THE
DECISIONAL AUTHORITY WITH THOSE INDIVIDUALS WHO ARE CLOSE TO.
THE CASES. DECENTRALIZING SOME OF THE DECISION-MAKING LEADS TO
AN INCREASED SENSE OF OWNERSHIP OF THE OUTCOME, ENCOURAGING
GREATER CREATIVITY IN CASE ANALYSIS,

THE OSC IS ALSO IN THE INITIAL PHASE OF BRINGING THE AGENCY
ON-LINE. OUR INTENT IS TO PROVIDE ACCESS VIA THE INTERNET TO
FEDERAL EMPLOYEES ACROSS THE COUNTRY AND AROUND THE WORLD.
AT PRESENT THE OSC IS ALREADY CONNECTED TO THE INTERNET VIA
OPM’S MAINSTREET, AND WE ARE A MEMBER OF THE IGNet WHICH
FACILITATES COMMUNICATION AND INFORMATION SHARING WITH THE
INSPECTOR GENERAL COMMUNITY, OUR GOAL IN THE NEXT YEAR IS TO.
BE ABLE TO PROVIDE A FULL INFORMATIONAL PACKAGE ABOUT OSC VIA
THE INTERNET AS WELL AS ALLOW FEDERAL EMPLOYEES TO ACCESS
PUBLICATIONS, FORMS, AND OTHER IMPORTANT INTERACTIONS ABOUT
Osc.

TOWARDS STREAMLINING

MR. CHAIRMAN, IT IS MY UNDERSTANDING THAT WE ARE HERE
TODAY TO EXPLORE VARIOUS WAYS TO MAKE THE CIVIL SERVICE
DISPUTE RESOLUTION SYSTEM MORE EFFICIENT. CERTAINLY, THERE ARE
MANY WAYS THAT THE CIVIL SERVICE SYSTEM COULD BE MODIFIED, AND
1 WOULD BE HAPPY TO DISCUSS WITH YOU ANY SPECIFIC PROPOSALS
THAT YOU CARE TO RAISE. REGARDLESS OF WHAT REVISIONS ARE.
PROPOSED, | WOULD ASK YOU TO CONSIDER THE IMPORTANCE OF
MAINTAINING THE INDEPENDENCE OF THE ADJUDICATORY AND
PROSECUTORIAL FUNCTIONS WITHIN THE CIVIL SERVICE SYSTEM.
MAINTAINING THE SEPARATION OF THESE FUNCTIONS SERVES THE
INTERESTS OF THE GOVERNMENT AS WELL AS THE INDIVIDUAL
EMPLOYEES WHO PURSUE THEIR STATUTORY RIGHTS THROUGH THE
SYSTEM. IT IS MY BELIEF THAT THIS SEPARATION OF FUNCTIONS ALSO


39

WE BELIEVE THESE ADR INITIATIVES ARE CONSISTENT WITH THE FOCUS
OF YOUR SUBCOMMITTEE’S CONCERN WITH THE APPEALS PROCESS. WE
WOULD URGE THAT AT THE SAME TIME EFFORTS ARE MADE TO REFORM
THE FORMAL APPEALS SYSTEM EQUAL EFFORTS ARE MADE TO PREVENT
AND RESOLVE DISPUTES AT THE AGENCY LEVEL.

THIS SUBCOMMITTEE'S INITIATIVE IS THE FIRST LEGISLATIVE LOOK AT
THE APPEALS SYSTEM IN MANY YEARS. THERE ARE MANY STAKEHOLDERS.
INVOLVED. THE SYSTEMS HAVE SIGNIFICANT HISTORICAL ORIGINS AND
INVOLVE FUNDAMENTAL VALUES. FOR EXAMPLE, THE CURRENT RIGHT
TOATHIRD PARTY APPEAL STEMS FROM THE VETERANS PREFERENCE ACT
OF 1944, FURTHER, THE SYSTEMS ARE ENCRUSTED WITH YEARS AND
VOLUMES OF LEGAL DECISIONS. IN SHORT, ITS A COMPLEX AND
CONTROVERSIAL AREA. CONSEQUENTLY, OPM IS NOT RECOMMENDING AT
THIS TIME SPECIFIC CHANGES. WE BELIEVE THERE NEEDS TO BE MORE
INFORMATION GATHERING, ANALYSIS AND DIALOGUE AMONG THE
STAKEHOLDERS BEFORE POSITIONS ARE TAKEN.

NONETHELESS, WE BELIEVE THERE ARE SOME AREAS WHERE CHANGE
MIGHT BE APPROPRIATE AND WHICH WE WILL DISCUSS IN MORE DETAIL.
IN ONE OF THESE AREAS, OPM LITIGATES HUNDREDS OF APPEALS AT THE
MERIT SYSTEMS PROTECTION BOARD (MSPB OR THE BOARD) EVERY YEAR


164

concern that we not go through what he viewed as a cycle of cen-
tralization and decentralization. I would submit that we are—we
have not seen that in the employment law field either during the
last few years or even taking a more long-range historical ap-
proach.

Since the very early years of this century, there has been a
steady accretion of workplace regulation by the Federal Govern-
ment. Early on, through child labor law, the LaFollette Act in the
Federal sector, through the 1930’s with the FSLA and the Wagner
Act, but beginning in the early sixties, there was a tremendous ex-
plosion, truly an explosive growth in Federal statutory regulation
of the workplace, both in the private as well as in the public sector.

I do believe that the choices that were made in the late 1970’s
with the Civil Service Reform Act were reasonable choices when
they were made, because the Civil Rights Act was still fairly fresh,
especially in terms of its application to Federal workers; the whis-
tleblower law concepts were still relatively new; the labor manage-
ment relations program was undergoing significant structural
change. There was sense to the laying out of these discrete fields
in the way it was done in the CSRA.

But after, now, more than a decade and a half of experience with
that scheme, it is clear, and I believe it is clear both to those who
work within the system and would be patently clear to those who
just view it from the outside, it is far too complicated and real ob-
tuse for real people in real workplaces to have to deal with.

I would strongly encourage you and your colleagues to use the
CAA as the beginning of a road map to see whether integration of
these diverse programs cannot be developed quickly, at least some-
what along the lines of what Congress has provided for itself, with
a view toward giving the benefit to executive branch managers and
employees of an integrated workplace due process scheme and
eventually recommending to colleagues in the labor committee that
that also be looked at in the private sector as well, since the GAO
study recently issued demonstrating that private sector employers
of significant size are subject to as many as 26 different statutory
schemes in the Federal Government as well as an Executive order.

All of those different schemes, so many of them regulated, ad-
ministered by different agencies create enormous transactional
costs for America, they create enormous transactional costs that
consumers have to suffer in the private sector. They exact enor-
mous transactional costs that our taxpayers eventually must suffer
with an overelaborate Federal regulatory scheme. Reform is over-
due, and with the CAA having been passed providing a useful road
map, I would strongly recommend that that be taken as a first im-
portant step toward rationalizing the executive branch operations.

ank you.
(The prepared statement of Mr. Levinson follows:]


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208

the CSRA have not worked ae intended. Most notably, the
procedure for resolving disputes over "negotiability" of contract
proposals is a disaster -- it fosters delaying tactics and
promotes just the kind of legalistic hair-splitting that
distracts from real problem-solving.

In addition, the CSRA fragments authority in the FLRA
between the unfair labor practice, negotiability, and FSIP
procedures. This has resulted in many eituations where it is
simply not possible to make a decision of one part of the FLRA
stick. A recalcitrant agency may drag a dispute through the
negotiability process, the FSIP, the grievance procedure, the
unfair labor practice procedure, and federal court, exhausting
employees and sapping their resources long before the
administrative processes are complete.

For EEO complaints, the statute provides internal agency
complaint procedures that have become mere delay factories,
rather than dispute resolution procedures. EEOC, which would do
a better job of protecting employees from discrimination than the
employing agencies do, is hamstrung by a lack of resources and
authority. For other individual employee complaints, the Office
of the Special Counsel and the MSPB have proved to be
insufficiently protective of employee rights.

In sum, the less formal, party-controlled and developed
dispute resolution procedures have been very effective, while the
formal administrative procedures have been more likely to bog

down. The discussion over the direction of reforms to the


148

CONGRESSIONAL TESTIMONY

The U.S. House of Representatives Civil Service Committee is
currently holding hearings in preparation for Congressional reform
of the Federal Civil Service Appeals System. | According to a
November 30, 1995 Washington Post report, Congressman Mica has
indicated, "There are too many reasons for employees to file
appeals and too many ways for employees to take advantage of the
system." The Washington Post article also cites the tendency of
federal managers who, while trying to fire or demote "so-called
poor performers", have become increasingly prone to settle
complaints, “even when the evidence backs them up.”

While reform of the federal employee appeals systems is certainly
overdue, the reports of the current hearings held by Congressman
Mica’s committee do not refer to the equally egregious “other side
of the story”: Abuse by many federal managers of the same
employee appeals system. On July 13, 1993, the same
Congressional Civil Service Committee, this time chaired by
Congressman Albert Wynn, held hearings on the abuses of the federal
employee appeals system by numerous managers at the National
Institutes of Health (NIH), our nation’s largest (18,000 employees)
health research institution. As reported in a July 14, 1993

i report, minority NIH employees complained about
being routinely passed over for promotion and then being subjected
to unchecked managerial reprisals for having filed discrimination
complaints. A follow-up August 10, 1993 “Open Forum on Managerial
Reprisal at the NIH" was summarized in the following manner in the
August 11, 1993 Report of the NIH Director’s Task Force on Fairness
in Employment Practices:

*The Office of Equal Employment Opportunity (OEO) is a tool
of management without real power to resolve discrimination
complaints”

*Delays and impediments in the process are meant to exhaust
victims, both emotionally and financially”

x"Most commonly, employees were subjected to ... negative
performance evaluations in apparent efforts to discredit their
abilities”

*°The (appeals) system protects the managers and not the
employees. ..Personnel procedures are used by management to aid
the retaliators”

x°If employees file EEO claims, their work environment will
get worse rather than better...Delays in resolving complaints
lead to more reprisal against the complaining employee.

The August 11, 1993 NIH Director’s Task Force on Fairness in
Employment Practices Report concluded with a request for the NIH
Director to establish a more streamlined, more objective NIH EEO
complaints process, along with stiff new sanctions for those NIH
managers who commit reprisals against complainants. On May 4,
1994, the NIH Director, Dr. Harold Varmus, issued the NIH-wide
“Anti-Reprisal Directive"; basically, a “three strikes and you’re
out" regulation for retaliatory NIH managers. To date, there is


35

STATEMENT OF
ALLAN D. HEUERMAN
ASSOCIATE DIRECTOR
HUMAN RESOURCES SYSTEMS SERVICE
U.S. OFFICE OF PERSONNEL MANAGEMENT
before the
SUBCOMMITTEE ON CIVIL SERVICE
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
U.S. HOUSE OF REPRESENTATIVES
on

CONSOLIDATING THE APPEALS PROCESS

November 29, 1995

MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:

1 APPRECIATE THE OPPORTUNITY TO COME HERE TODAY TO DISCUSS THE
FEDERAL GOVERNMENT'S APPEALS PROCESS.

MR. CHAIRMAN, AS THE AGENCY RESPONSIBLE FOR HUMAN RESOURCE
MANAGEMENT POLICY IN THE EXECUTIVE BRANCH AND FOR PROTECTING
THE MERIT SYSTEM, OPM BELIEVES THAT IMPROVING THE FEDERAL
GOVERNMENT'S APPEALS PROCESS CAN SUBSTANTIALLY CONTRIBUTE TO
A MORE EFFECTIVE AND EFFICIENT FEDERAL GOVERNMENT. IN THIS
REGARD, WE BELIEVE THAT OPM'S DUTY TO ENSURE THAT CIVIL SERVICE
LAWS, RULES AND REGULATIONS ARE PROPERLY APPLIED IN THE VARIOUS
APPEALS FORUMS HAS AFFORDED US WITH A UNIQUE EXPERIENCE AND
PERSPECTIVE THAT WE ARE ABLE TO DRAW ON IN DISCUSSING THIS


APPENDIX C
SPECIAL PANEL DECISION

67

During Fiscol Year 1987 the Special Panel
issued one decision:

‘Shoemaker v. Department of the Amy
eptember 2. 1987)

Hondicap Discrimination - Accommodation

in ounanimous decision, the Special Pane!
‘adopted the Board's decision in this case.
which involved a Chapter 43 pertormance-
based removal.

The oppeliont had been a Federal em-
ployee for approximately 24 years when he
‘advised the agency thot he intended to
‘apply for disobiity retirement because of an
‘ocular disability (double vision) Following this
notification, the appellant receivednotice of
Proposed removal for failure to meet two
cntical elements of his position, The
‘appeliont’s most recent performance rating
had been "marginally satistactory.”

The appellant's removal was etfected by
the agency on May 25. 1983. and on Moy 31.
1983 the oppetiant was notified by OPM that
his disability retirement application was
Gtonted. Thereatter, the appellant fied on
‘oped! of his removal with MSPB, contending
‘thot his remnova! was the result of handicap:
‘ondoge discrimination. and that tne agency
hod commited harmful procedural error by
foiling to hold the removal action in obey-
‘once while his disability retirement opplico-
tion was pending with OPM.

‘The appeliant'sremovotunder Chapter 43
‘wos sustained by the administrative judge.
‘who found that the agency wos under No
‘obigation fo hold the temoval action in
‘abeyance pending OPM's decision on hs
‘dsobilty retirement application. The admin-
'strative judge also found that the agency
‘wosnot required to reassign the oppeliont os
‘an accommodation to his handicap: how-
‘ever, this wos prior to the Specio! Panel deci-
slonin ignacio v. USPS. which requires Federal
‘agencies to consider reassignment as area-
sonable accommodation for physically
handicapped employees.

‘On teview, the EEOC found that the
‘agency's unexplained failure to hold the
temovalactionin abeyance was the resui of
handicap discrimination. (No age discrimi

nation was found) When the case wos re
temredito the Board, tt isagreed, holding that
EEOC's decision had been bosed solely onits
teading of on intemal Department of the
‘Army regulation which was inapplicable to
Chapter 43 cases and which. additionally.
hod been supercedediby a regulation which
contained no provision requiring that re-
moval actions be held in abeyance pending
‘@ determination on 0 disobilty tetrement
‘appiication. Atthough the Boardagreed with
EEOC that under the SpeciolPanel’s decision
{n Ignacio, the agency had to consider recs:
signment, tt found that the evidence ind
‘coted no positions existed to which the ap-
pelant could be reassigned.

‘The cose wosreterred to the SpecialPane!
for resolution, In its decision, the Panel
‘agreed with the Board that the EEOC’s deci-
sion was based on its interpretation of the
agency's regulation and, therefore. on civil
service law. Itfurther found that the agency's
Tegulation did not require that the removal
‘action be held in abeyance. Thus. the Panel
deterred to the Board's determination and
Ro handicap discrimination wos found.

Inthe separate concumng opinion, EEOC
‘Chairman Thomas and Board Member Devo-
ney stafed thot when OPM gronted the
‘appetiont’s application for disability retire-
ment one week atternsemoval. he agency
had the discretion to amend its records 10
show that he was on sick leave until he
effective date of his retirement, ond that nis
separation was by retirement. They noted
that the agency's foilute to do so resulted in
‘an expenditure of time and money “com
Pletely out of proportion to the legaimenits of
the case.”

“0


190

As an alternative, if Congr decides that a court is not the
answer and that the processes must stay within the administrative
arena, then we would favor one independent agency structured along
the same lines as the court which we have proposed. They would
handle all employee personnel appeals, including EEO complaints,
unfair labor practices, cli

ification appeals etc., so that
finality in the administrative area could be achieved. If such an
agency is established, we believe that it should be headed by a
three member board with final decision-making authority, made up of

Presidential appointees nominated by the President and confirmed by
the Sena‘

We believe there are public policy considerations
which are inherent in many of the federal employee appeal casi

and those policy considerations can only be taken into account by
final decision-makers appointed by the President and confirmed by

the Senate.

We recommend that the Subcommittee staff consult with the
Honorable Dan Levinson, Esq., formerly Chairman of the Merit
Systems Protection Board, and now Chief of Staff to the Honorable
Bob Barr, Congressman from Georgia. Mr. Levinson’s experience as
Chairman, and his insight in the federal employee appeals process,
are valuable resources which we commend to the Subcommittee and its
staff.

We commend the Subcommittee for holding hearings on this
important subject. We believe there is a window of opportunity to


2 quewyoeaay



104

4

PROMOTES THE CREDIBILITY, CONFIDENCE AND EFFECTIVENESS OF THE
ENTIRE SYSTEM

IN THIS REGARD, IN SEPTEMBER 1993, THE NPR PUBLISHED HRMO8,
ENTITLED "IMPROVE PROCESSES AND PROCEDURES ESTABLISHED TO
PROVIDE WORKPLACE DUE PROCESS FOR EMPLOYEES." THE REPORT
RECOMMENDED THAT THERE BE A WORKING GROUP COMPRISED OF THE
MEMBERSHIP OF THIS PANEL TO EXAMINE AND MAKE RECOMMENDA-
TIONS FOR ELIMINATING JURISDICTIONAL OVERLAP IN ADMINISTRATIVE
DUE PROCESS CASES. I SUPPORT THIS RECOMMENDATION AND BELIEVE [T
WOULD BE AN IMPORTANT FIRST STEP IN REVIEWING THE AGENCIES
INVOLVED AND DECIDING HOW TO BEST ELIMINATE OVERLAPS WITHIN
THE SYSTEM.

MR. CHAIRMAN, I WELCOME THE OPPORTUNITY TO EXCHANGE
IDEAS ON HOW WE CAN STREAMLINE AND IMPROVE THE CIVIL SERVICE
DUE PROCESS DELIVERY SYSTEM, WITHOUT HARMING THE RIGHTS OF
THOSE FEDERAL EMPLOYEES THAT OUR AGENCIES WERE CREATED TO
PROTECT.

MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE, AS WE
MOVE FORWARD FROM THIS HEARING TO FURTHER DISCUSSIONS, LET ME
ASSURE YOU THAT | WOULD BE HAPPY TO LEND MY SUPPORT AND IDEAS
AS THESE EFFORTS PROGRESS THROUGH THE CONGRESS.

THIS CONCLUDES MY PREPARED STATEMENT. AT THIS TIME, I
WOULD BE PLEASED TO ANSWER ANY QUESTIONS.


167

Labor Standards Act, agency debt collection disputes, and protests by veterans concerning
appointments through the hiring process;

3. The Federal Labor Relations Authority adjudicates unfair labor practices,
negotiability disputes, and resolution of exceptions to atbitration awards:

4. The Federal Service Impasses Panel helps to resolve collective bargaining impasses:

5. Labor arbitrators resolve workplace disputes pursuant to collective bargaining
agreements, with appeals available to administrative agencies and to courts of law;

6. The Equal Employment Opportunity Commission provides hearings and an appellate
process for discrimination complainants;

7. The Office of Special Counsel investigates and prosecutes allegations of prohibited
personne! practices (like whistleblowing) and Hatch Act violations;

8, The Merit Systems Protection Board hears and decides appeals of demotions, Jong-
term suspensions, and terminations from the service, as well as retirement-related cases;

9. The Comptroller General determines monetary claims relating to leave and salary;

10. The Department of Labor oversees the federal workers compensation system and
monitors occupational safety and health disputes;

11, A “Special Panel” resolves adjudicatory disputes on civil rights issues between the
Merit Systems Protection Board and the Equal Employment Opportunity Commission; and

12. On judicial review, over 900 federal court judges, sitting either individually or in
panels, will have occasion to review one or more administrative rulings from one or more of

3


126

_Mr. Mica. So based on your experience with RIFs and reorga-
nizations, you would anticipate a continuing pattern of increases?

Mr. ERDREICH. I would, Mr. Chairman. What’s going on with the
changes in agencies will certainly generate many additional cases
to us and should be in these categories.

A second category, related to the fact that employees are moving
out of their jobs, is retirement cases. As you know, we review cases
from OPM on retirement determinations. It would follow then that
with more folks leaving employment, some will have concerns
about that determination and come to us on retirement cases. That
is the second category of increase.

I would be glad, x the hearing, to send you the details of the
specific numbers and where they are generated from.

Mr. Mica. I think we would appreciate that data.

(The information referred to follows:]

In FY 1994, retirement appeals were 26% of the Board’s total workload (1,975 of
7,530 cases), up from 17% ney 1993 (1,192 of 6,861 cases), In FY 1995, retirement
appeals were 15% of the total workload (1,546 of 9,594 cases).

Mr. Mica. In the area of mixed cases, do you believe that the
Federal Government can provide employees with a fair hearing
while using fewer resources than we do currently?

Mr. ERDREICH. Well, as you know, our job is to be the neutral
arbiter of these cases that come to us. I have no doubt that we at
each agency can look for ways to streamline and improve the way
in which we go about our business of resolving disputes; and I
would say that, yes, certainly we could do with fewer resources, all
of us can, but I would raise, as an opening, Mr. Chairman, what
I touched upon and what others on this panel have mentioned, that
this panel and Congress look toward alternative dispute resolution
modes that the private sector is now utilizing in a variety of very
creative ways and should be also utilized inside our public sector
to try to resolve these disputes before they come to us.

We are, again, like a court. We receive whatever complaints are
going to be generated and come to us. But we, I believe, as a gov-
ernment, can be most efficient and a better utilizer of resources if
we can develop better modes of dispute resolution where they
start—in the workplace; resolve the disputes there. Hopefully, they
never come to us.

I realize we will get a fair number of disputes but that would be,
I believe, the best use of resources to begin at the beginning in the
workplace where the disputes arise.

Mr. Mica. Well, both the figures that MSPB has provided and
GAO has shown us that EEOC affirms more decisions involving
discrimination at a very high rate. By my calculation, based on
your figures, the EEOC has affirmed or dismissed 97 percent of the
MSPB’s decisions since 1987. Why can’t we simply eliminate the
current mixed case procedure and trust the Board to handle these
discrimination cases?

Mr. ERDREICH. Oh, I mean, Congress could do whatever it wishes
to do, Mr. Chairman. But I wouldn’t want to comment on that pol-
icy judgment. That’s a policy decision Congress could make.

We certainly are able to resolve disputes that come to us. As you
heard from the chairman of the EEOC, there’s a strong policy rea-
son why the EEOC was created by this Congress—not this sitting


45

Mr. Bow Linc. Actually, we don’t have any data on individual
agencies exploiting the system, because it is very difficult to tell
from a distance what is a frivolous case and what is not. Certainly
there are examples of frivolous cases.

I think your point is very well taken that a screening process of
some sort up front, perhaps through the administrative judge,
would eliminate a lot of these cases and send a message that one
would need to be fairly secure in a sense of having a strong case
before bringing it, and that would reduce the number of cases.

Now, I understand that EEOC has looked into the triage sugges-
tion. I am not sure where they stand on that right now, but I un-
derstand that that has been discussed.

Mr. Moran. We need to ask them. The number of discrimination
complaints has skyrocketed.

Do you have a sense that that has more to do with gaming the
system, or is that correlated in some way to greater discrimination
in the Federal Government? Because it strikes me that there is an
inverse correlation with discrimination within the Federal Govern-
ment and the number of discrimination complaints, which is a curi-
ous inverse correlation.

But what would be your perception of that?

Mr. BowLInG. Well, I think you may be right. It is difficult to
measure the exact amount of discrimination, but I think it is quite
possible that an increased sensitivity and awareness to discrimina-
tion—although the discrimination training that has gone on, the
Tailhook scandal and such incidents in the press, have heightened
people’s awareness as to what discrimination is and how to recog-
nize it, and that, in part, would account for the increase in the
number of cases. I think that is a very reasonable supposition.

Mr. Moran. So this could be another example of no good deed
going unpunished, that the greater sensitivity an agency or execu-
tive branch has, the greater receptivity they have to discrimination
complaints, the more you are going to see, and so if they took a
hard line approach, it would probably reduce the number of dis-
crimination complaints or perhaps the sensitivity to it.

I don’t want to be a—I don’t want to sound insensitive myself,
but some of these numbers are perplexing, particularly EEOC’s.

Do you have any sense of the—I guess you have already told us
that you really couldn’t give us any estimation of the percentage
of gaming or frivolous complaints that are processed, because you
didn’t look at them individually, but management certainly has
suggested that almost a majority—well, a fair number of com-
plaints are not of real substance, and I guess the proof would be
in fhe Pudding, the resolution of those complaints. I

‘ou have su; ince my time is running out I am going to
tie this into the last question, and that is: You imply in the 1 resort
that the greater accommodation to settling cases might actually en-
courage more frivolous cases or gaming the system, as they say, be-
cause if you are willing to settle, then you are going to get some-
thing out of it without actually having to prove your case, and so
there is an implication, you suggest, that we would be better off not
settling as many cases, bringing them all the way to a final conclu-
sion on the merits instead of the accommodation that is involved
in settling cases.


87

effectiveness and efficiency of our government -- though not by simply “moving
the boxes” to restructure our agencies.

CONCLUSION

As the Committee knows, Congress, through the appropriations process, appears
likely to ask the Administration to look at these issues. We welcome the
opportunity to work with the Administration and Congress in this endeavor -- to
design and implement ways to not just do things differently, but to do them better.

Mr. Chairman, this concludes my prepared remarks. My colleagues and | look
forward to working with you and the Members of the Committee and welcome the
opportunity to answer any questions you and the Members of the Committee may
have.


8

Although one of the purposes of this Civil Service Reform Act
was to streamline the previous redress process, the system that has
emerged is far from simple. Today four independent agencies hear
employee complaints or appeals. While the boundaries of these
agencies may appear to be neatly drawn, in practice they form a
tangled scheme.

One reason is that a given case may be brought before more than
one of the agencies, a circumstance that adds time-consuming steps
to the redress process and may result in the agencies reviewing
each others’ decisions.

Matters are further complicated by the fact that each of the adju-
dicatory agencies has its own procedures and its own body of case
law, although the Office of Special Counsel offers Federal employ-
ees the opportunity for hearings, but all vary in the degree to
which they can require participation of witnesses or the production
of evidence. They also vary in their authority to order a corrective
action and enforce their decisions. What’s more, the law provides
for further review of these agencies’ decisions or, in the case of dis-
crimination claims, even de novo trials in the Federal courts.

Beginning in the employing agency, proceeding through one or
more of the adjudicatory bodies and then carried to its conclusion
in court, a single case can take years. The most frequently cited ex-
ample of jurisdictional overlap in the redress system is the so-
called mixed case.

A Federal employee who has been fired or who has experienced
any of several other major adverse actions can appeal the agency’s
decision to MSPB. Likewise, a Federal employee who feels that he
or she has been discriminated against can appeal to EEOC. But an
employee who has been fired and feels that the firing was based
on discrimination can essentially appeal to both MSPB and EEOC.

The employee first appeals to MSPB, with hearing results fur-
ther appealable to MSPB’s three-member board. If the appellant is
still unsatisfied, he or she can then appeal MSPB’s decision to
EEOC. If EEOC finds discrimination where MSPB did not, the two
agencies try to reach an accommodation.

If they cannot do so, an event that has occurred only three times
in 15 years, which is a significant point, a three-member Special
Panel is convened to reach a determination. At this point, the em-
ployee who is still unsatisfied with the outcome can file a civil ac-
tion in U.S. District Court, where the case can begin again with a
de novo trial.

The complexity of mixed cases has attracted a lot of attention.
There are two facts about mixed cases particularly worth noting.
First, few mixed cases coming before MSPB result in a finding of
discrimination.

Second, when EEOC reviews MSPB’s decisions in mixed cases, it
almost always agrees with them. In fiscal year 1994, for example,
MSPB decided roughly 2,000 mixed case appeals. It found that dis-
crimination had occurred in just eight of these.

During the same year, EEOC ruled on appellants’ appeals of
MSPB’s findings of nondiscrimination in 200 cases. EEOC dis-
agreed with MSPB’s findings in just three. In each instance, MSPB
adopted EEOC’s determination.


CIVIL SERVICE REFORM IV: STREAMLINING
APPEALS PROCEDURES

WEDNESDAY, NOVEMBER 29, 1995

House OF REPRESENTATIVES,
SUBCOMMITTEE ON CIVIL SERVICE,
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT,
Washington, DC.

The subcommittee met, pursuant to notice, at 9:05 a.m., in room
2154, Rayburn House Office Building, Hon. John L. Mica (chair-
man of the subcommittee) presiding.

Present: Representatives Mica, Bass, Morella, Moran, Holden,
and Clinger [ex officio].

Staff present: George Nesterczuk, staff director; Garry Ewing,
counsel; Caroline Fiel, clerk; Cedric Hendricks, minority profes-
sional staff; and Jean Gosa, minority staff assistant.

Mr. Mica. Good morning. I would like to call this meeting of the
House Civil Service Subcommittee to order and welcome you.

Today’s hearing deals with the important subject of streamlining
the appeals procedure for Federal Government employees. This is
the fourth in a series of hearings we have held relating to civil
service reform.

This hearing is a continuation of our October 26 review of per-
formance and accountability in our Federal Government. We heard
in that hearing that the complex and prolonged appeals procedures
are important reasons why Federal managers often do not take ac-
tions against poor performers.

Since becoming chairman of this subcommittee, I have heard a
constant drumbeat of complaints relating to the cumbersome a
peals procedures. There are too many reasons for employees to file
appeals and too many ways for employees to take advantage of the
system. A recent MSPB issue paper called for a reexamination of
the current multilevel—as they termed it—multiagency appeals
process because they deter managers from taking actions that are
warranted.

I believe it is time to re-examine the complex structure of ap-
peals that Congress has established for the Federal Government
work force, and, as the charts we have set up here show, the cur-
rent appeals process is a rather complex procedure.

There are five Federal agencies and 21 Presidential appointees
involved in various administrative procedures set up to resolve
Federal employment disputes. According to GAO, in fiscal year
1994 the Government used 760 Federal employees and almost $100
million to resolve employment disputes in the Federal Government.

@


150

House Chairman Faults
Employee Appeal System

By Stephen Bart
ene Pot Sa eh

tem grew out of the Cial Service Re
form Act of 1978 and a series of legal

of federal hed
in the appeals ystem goverment
workers use to complain about unfair
treatment m the

workgtace.

‘At a hearing held by House cl ser-
vce subcommuttee Chatman John L,
Mica (R-Fia), the process was depicted
48 inefficient, expensive and time-

Beard
Rloyment. Opportunity Commission
(EEDO), Federal telztions AU
thonty (FLEA) and Ofice af Spcad
Counsel (OSC) offered diferent per-
spectves, saying they have already tak-
en steps to make the appeals system
‘work better and faster. The Office of
t

Jegal forum to pursue a complaint.
‘ut of 12,206 cases received by
(MSPB last year, only 140 were “mixed
cases” that raised issues of
‘ion in connection with an appealabie
percene mater, MSPB Charman Bea
L. Erdreich said Of the 140 cases, be
Sidel tc EEDC duagecd ihre or
Jy MSPB decison.
Gibert F. Casellas, the EEOC chair-
‘man, disputed suggestions that federal
file frivolous discrimination

at (OPM) sad
‘would not recorumend specific changes
to the current system without mere
study.

branch to submit a plan by
Feb, 1 on how to restructure the em
ployee grievance process, raising the
Dossy tat some cf the agencies

rovade a single avenue of appeal
‘The current employee appeals sys

local agencies process atleast 100,000
bias cases each yea.

Pils N- Sel ead ofthe FLEA,
‘urged the subcommittee to consider the
‘cost of dismanting the current appeals
structure. The agencies do not need
‘their work disrupted ata time when the
rest of the government is reorgansang
and bymag off employees, she said, be-
cause dowsing actions will set off a
wave of employee gnevances to resolve,

FOV WHAT TELL

Tog won TAL,

Tao) DE UHNAON OSIM,



42

Mr. Mica. Thank you also for your testimony.

To get right into some of the questions, first for Mr. Bowling, I
want to talk about the mixed cases.

In light of the high rate of agreement between MSPB and the
EEOC on mixed cases, do you see any useful purpose to continuing
the current mixed case procedure?

Mr. BOWLING. No. Actually, there does not seem to be an awful
lot gained by this procedure.

Right now, the very small number of disagreements between the
two agencies would indicate that the cost of having two reviews of
the same case is really not being justified. So I would say that it
is probably a good time to take a close look at that and see if it
wouldn’t be possible to eliminate one of those reviews, perhaps just
let MSPB handle these cases.

Mr. Mica. Mr. Heuerman, did you want to comment?

Mr. HEUERMAN. Well, as I mentioned, Mr. Chairman, we are not
in a position today to make specific recommendations regarding
mixed cases or other significant aspects. However, I would agree
that this obviously is an issue that needs to be on the table, needs
to be looked at very carefully...

There are both pros and cons regarding this issue, and we at
OPM would like to hear all sides of the story, so to speak, in terms
of why the mixed case scenario exists, what the purposes of it are,
and whether or not it really is needed or could be discontinued or
streamlined.

Mr. Mica. Mr. Bowling, you noted in the processing of the EEOC
complaints that in 1994 it took over 800 days, on average, to proc-
ess a case that involved a hearing before an EEOC administrative
judge and an appeal to the EEOC. Are there ways that Congress
can streamline this complaint procedure to make it easier for
EEOC to issue more timely decisions?

Mr. BowLinc. Yes, I am sure there are. I understand that EEOC
is now in the process of looking into ways of streamlining the proc-
ess itself, and J think that is a useful thing for them to be doing.

I think it is also a very useful approach to explore the possibility
of employing alternative dispute resolution techniques, ADR, that
are now starting to grow up both in the private sector and in the
Federal sector, by reducing the number of cases that—the case
backlog that comes before EEOC that might well help the process
to go considerably faster. But there may also be ways to simply re-
duce the number of levels of review within the process as we cur-
rently have it.

Mr. Mica. One of the other things that you noted is that Federal
employees seem to file discrimination claims at a rate about 10
times—did you say 10 times—the rate of the private sector workers
and by and large for less serious reasons.

Do you have any explanation for the discrepancies?

Are these accurate figures?

Mr. BOWLING. Yes, those are the accurate figures. That is correct.

The most likely explanation would be, I believe, that the incen-
tives and the opportunities for filing such cases are more prevalent
and more compelling in the Federal sector than the private sector.

In the Federal sector, there is a process set up for Federal em-
ployees to conveniently bring such cases and plenty of redress


161

NIH MANUAL 2216, APPENDIX 2 PAGE 1
DATE: 05/04/94

Issuing Office: O£O 496-6301

PROCESSING TITLE VII COMPLAINTS ON REPRISAL

Table of Actions for Misconduct
Related to Informal Comp.siats ./ 2eprisal*

First offense: 14 calendar day suspension to removal
Second offense: 30 calendar day suspension to removal

Subsequent offense: Removal
=

special counseling, training

*These actions apply to named officials and, as appropriate,
to managers and supervisors who knew or should have known

about the reprisal actions of their subordinates but who, in
turn, took no action to address the issue. A penalty lesser
than those included in this table may be proposed to a deciding
official, or imposed by a deciding official, if there is evidence
of substantial mitigating circumstances.



73

= "Report on the Significant Actions of the Office of Personnel Management
During 1984-1985" (May 1986)

This was oversight review of OPM which was directly responsible for changes in
several OPM palicies. Fore ‘example: fe

- A result of the MSPB analysis of a major OPM/OMB "grade bulge
initiative” that penalized agencies through budget sanctions if their workforce
profile exceeded a complex “bulge index,” the use of the index was dropped.

(MSPB demonstrated that the index did not measure poor position
management, but instead it penalized agencies undergoing reductions-in-force
which caused their average grade to rise. ‘The Board found that the index
resulted in commendations for age ncies that were doing nothing more than
expanding their staff levels which, because new hires typically start at lower
grades, caused their average grade to temporarily ‘arop).

— AnOPM proposal to use a novel “quit rate” method for determining future
Federal pay raises was dropped after an MSPB study revealed that the
analysis underlying this proposal was seriously flawed.

(Under this proposal, salaries would rise only when Federal employees quit
Government in substantial numbers. If they were not quitting, it was to
assumed that they were satisfied with their pay and no upward adjustments
were to be made and potential salary reductions were to be considered.)

The study's analysis of pay setting practices is part of the continuing
discussion of pay banding for white-collar postions in the Federal
fovernment.

~ OPM's approach to oversecing agency personnel management was modified
after MSPB critiqued OPM's then current program for exercising its oversight
responsibility (called Personnel Management Evaluation, or PME).

‘THE CONTINUING AND FUTURE POLIcy IMPACT OF MSPB STUDIES:

The Vice President's National Performance Review relies on a number of MSPB
Teports as support for recommendations in the areas of human resources management,
procurement, and workforce equity. Most of the basic goals and many of the specific
recommendations have broad bipartisan support.

Among NPR policy objectives—which cite or credit specific MSPB studies~and

which have been accomplished or which are underway as part of the

Administration's efforts to improve Federal personnel policies and practices are
wing:

= Expand the demonstration project authority to allow projects on employee benefus
and leave,

References the December 1992 MSPB report titled "Federal Personnel Research
Programs and Demonstration Projects: Catalysts for Change."


82

and consent of the Senate. In addition to investigating, making decisions about
prosecuting, and litigating ULP claims, the Office of General Counsel has statutory
authority to settle unfair labor practice charges. As you will learn from General
Counsel Swerdzweski’s testimony, the OGC has developed a highly effectiv
approach to assist parties in resolving more of their disputes on their own, without
litigation. Finally, as I've just explained, the General Counsel also supervises the
Regional Directors in carrying out the responsibilities delegated to them by the
Authority to process representation petitions and supervise elections. The Office
of General Counsel employees represent over 50% of the FLRA’s total workforce.

The Federal Service Impasses Panel: The Federal Service impasses Panel consists
of seven Presidential appointees who serve on a part-time basis, and are supported
by a small full-time staff. The Panel resolves impasses between federal agencies
and unions representing federal employees arising from negotiations over
conditions of employment under the Statute and the federal Employees Flexible and
Compressed Work Schedules Act. if bargaining between the parties, followed by
mediation assistance, proves unsuccessful, the Panel has the authority to .
recommend procedures and to take whatever action it deems necessary to resolve
the impasses. The Panel, in short, is the last step in federal sector collective
bargaining -- the substitute for the strike and lockout in the private sector.

STREAMLINING: HOW TO DO IT BETTER, NOT JUST DIFFERENTLY

“Streamlining” the process for deciding federal employee appeals -- or more,
broadly, for resolving federal workplace disputes -- is, like motherhood (fatherhood)
and apple pie, clearly desirable. Indeea, it is something that has been widely
endorsed by many of the witnesses who have recently testified before this
Committee. The word “streamlining,” however, carries a multitude of different
meanings and methods. As Chairman Mica said when he convened these Civil
Service Reform hearings, “We need to do things not merely differently, but
better.” Aiming for “better” requires being guided by a carefully defined purpose.
Without clarity of purpose, the risk is making change for the sake of change -- and
frankly, the millions of federal employees who rely on the current system, and the
taxpayers who pay for it and will pay for change -- deserve better.



CIVIL SERVICE REFORM IV: STREAMLINING
APPEALS PROCEDURES

HEARING

BEFORE THE

SUBCOMMITTEE ON
CIVIL SERVICE

OF THE

COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS
FIRST SESSION

NOVEMBER 289, 1995.

Printed for the use of the Committee on Government Reform and Oversight

a

U.S. GOVERNMENT PRINTING OFFICE
40-255 CC WASHINGTON : 1997

For sale by the U.S. Government Printing Office
‘Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-055036-X



108

The EEOC also has dual responsibility with the Federal Labor
Relations Authority for certain grievances which raise discrimina-
tion issues under a negotiated grievance procedure. Again, there
are very few cases which fall within these procedures. In 1994, for
example, EEOC received and reviewed one appeal of a grievance on
the merits of an FLRA decision.

Third, the concerns that Federal employees routinely file dis-
crimination complaints are not borne out by EEOC data. We can’t
determine anyone’s subjective motive in filing a charge or failing
to take a personnel action, but the limited information we have
doesn’t support that concern. In fact, we receive fewer than 6 per-
cent of all of the appeals containing allegations relating to—fewer
than 6 percent of al of the appeals had allegations relating to an
evaluation or appraisal issue, and we don’t see any difference in
the resolution of those. You would expect that there would be a
higher resolution of findings of frivolous complaints if they were in-
deed frivolous, and we don’t see that.

No. 4, our data doesn’t support the concerns that people believe
that employees are flooding the agencies with multiple appeals;
employees are required by law to elect one forum when more than
one forum is available. And finally on this question of frequent fil-
ers, we address that through consolidation and dismissal mecha-
nisms that are already a part of the complaints processing system.

I do believe it’s essential for us to address how we are handling
Federal sector responsibilities with an eye toward making those
processes as efficient and effective as possible. We have done that
in our own private sector review. I arrived there 13 months ago,
and we have undertaken some major review of our private sector
operations and are now beginning a review of our Federal EEO—
Federal sector operations. So any changes in the complaints proc-
essing system, I think, must preserve and not limit Federal em-
ployees’ rights to file employment discrimination complaints when
they believe that their employers have discriminated against them.
I fully support the efforts of this committee and look forward to an-
swering your questions.

Mr. Mica. We thank you for your testimony.

{The prepared statement of Mr. Casellas follows:]


182

Thank you, Mr. Chairman and Members of the Subcommittee, for
the opportunity to testify on this important issue. In SEA’s
testimony on October 26, 1995 before this Subcommittee (concerning
federal employee performance and accountability), we reported to
you the results of an informal survey by SEA of its career senior
executive membership. Of those responding to the survey, 95% were
line managers not directly involved in personnel or human resources

management. Of those responding, 90% stated that agencies were

inclined to settle employee complaints in order to avoid the time
and expense involved in defending the agency. In the survey, 98%
of the respondent senior executives said that the "system" should
be changed so that poor performers could be dealt with more

expeditiously.

SEA believes absolutely that federal employees must be
provided with due process when any governmental action is being
taken against them, including federal employee appeals of adverse
actions or disciplinary actions, in both conduct and performance
cases. However, the assurance of due process and the opportunity
for independent review by an independent body can both be

accommodated without the current multiplicity of systems.

One of the primary problems is that federal employees overuse
the systems that they have In 1994, SEA conducted its own
comparative study of complaints and charges of discrimination in

the private and public sectors. The results showed that, over the


131

ber of questions, but it’s really the quality of time that is taken and
the disruption that occurs within the executive branch. You could
have one case that can take as long and be as complex and be as
inefficient in terms of people’s time in 140 cases. So it’s really the
impact in terms of your resources and the effect it has on the agen-

cy.

My time has expired. Thank you, Ben.

Mr. Mica. I thank the gentleman.

I would like to yield now to Mrs. Morella for questions.

Mrs. MORELLA. Thank you. I do also feel that the testimony that
all of you have provided, both written and oral, have been quite ex-
emplary and well done and I congratulate you for it.

I wanted to pick up on the point that I had raised with Mr. Bowl-
ing with regard to the discrimination situation, understanding, Mr.
Casellas, that the EEOC is conducting this assessment. And I won-
dered if you might be able to clarify for this subcommittee, what
will it consist of? Will it indicate what kinds of discrimination com-
plaints?

You made the statement that—and obviously it’s true, when you
look at the statistics, you can see women and minorities just don’t
have the upward mobility and are all down on the lower levels, but
I don’t know whether those are the discrimination cases.

I would be interested. Is it handicapped or are there other
things? I wondered if that study was going to include that. I won-
der if it will also include the fact that in wor testimony also, and
in the accompanying chart, you indicate the number of counseling
contacts has been significantly reduced, maybe by 20,000, and yet
the number, the percentage of the people who go formal has in—
really increased proportionally, and I just wondered if that might
say something also that that study is going to uncover. I just won-
dered if you could tell us about that.

Mr. CASELLAS. Yes. The review is being done by my office and
myself as chairman. It is similar to a review I did when I first ar-
rived, with the help of the other commissioners, on the entire pri-
vate sector process. We looked at ADR for private sector. We looked
at our internal charge processing system to make that more effi-
cient to go to priority charge handling, to send thi: out to the
field, to eliminate needless processes; and we looked at our rela-
Honship with State and local agencies.

So the Federal sector process will be just that, just a process
analysis. We are not looking at the agencies and the nature of the
complaints that are coming from them, as much as how we can
make our process more efficient; whether we can eliminate steps;
whether we can streamline that process. So it’s more of an inter-
nal-to-EEOC review. There are numbers of—people over the years,
including GAO, have looked at Federal sector discrimination com-
plaints and the nature of those complaints. We are not looking at
that. We are looking again at ADR, on the Federal sector side, both
internal-to-EEOC, and would probably suggest the same, assuming
that’s what comes out of this review to the Federal agencies.

Mrs. MoRELLA. I think it would be significant—maybe it’s too
late for us to include it, but I think it would be appropriate for us
to determine how there have been—what kind of changes have
taken place and what does it reflect and does it tell us that there’s


159

& DEPARTMENT OF HEALTH & HUMAN SERVICES

x

or 4 94
0: All Employees
FROM: Oirector, NIH

SUBJECT: Manual Issuance on Processing Complaints of Reprisei

The National Institutes of Health (NIH) is committed to equal
employment opportunity for all of its employees and the creation
of a harmonious and effective workplace free of discrimination.
‘The NIH must honor the rights of individuals to participate in
EEO activities or to use the Office of Equal Opportunity to
address charges of discrimination and must protect all
individuals from any reprisal for exercising those rights.

In May 1993, the Task Force on Fairness in Employment Practices
was convened to examine issues of race discrimination at the NIK.
Reprisal was determined to be the Task Force’s number one
priority and it immediately undertook the drafting of the
attached Manual Issuance on Processing Complaints of Reprisal.

Reprisal is an extremely serious offense, in part because it is a
conscious act intended to punish an individual for the exercise
of his/her civil rights. The policy was developed in recognition
of the need to respond to allegations of reprisal fairly and
Promptly. It places the responsibility for the resolution of
Complaints at the highest levels of ICD management and explains
the responsibilities and rights of all individuals involved in an
inquiry of reprisal. In addition, this policy will strengthen
the existing informal complaints process by:

+ requiring timely inquiry into employee complaints of
reprisal,

+ providing for temporary reassignment of the employee or
named official during the informal complaint process, as
appropriate,

setting time frames for processing reprisal complaints, and

imposing sanctions against individuals found to have
committed reprisal.




191

actually do something about the appeals processes now, because all

seen to agree that it’s broke and needs fixing.

I would be pleased to answer any questions the Subcommittee
might ha

10


211

Many people will say, gee, the more complaints you see filed in
an agency, the more success you see in that agency of people mov-
ing up that are minorities, or women, or persons with handicaps.
"E don’t know that that is the case. I don’t know that it is not the
case. But I would be afraid to separate the system so much that
the EEO process was all private sector and had nothing to do with
the other personnel relations process and employee relations proc-
ess in the Federal Government of whatever kind.

Mr. MIca. Mr. Wolcott, would you like to respond?

Mr. WoLcort. I would like to concur that I think that would be
a bad move to adopt a private sector system. I think it would force
way too many cases into court that are now settled through admin-
istrative processes, and it would mean that most of, or many im-
portant discrimination issues would just not get resolved at all.
‘You need an internal administrative system.

Mr. Mica. I would like to ask a question about the consequences
of the Government losing in some of these cases. The MSPB testi-
fied at our October 26 hearing that the Federal agencies’ decisions
are upheld in more than 80 percent of the cases brought before this
agency.

Who bears the expense of the agencies when the agencies lose?
Are, for example, officials found responsible for discriminatory con-
duct held personally accountable for their actions? Should they be?
Who bears the expense of the agency’s litigation efforts when these
cases are pursued to the Federal or district court levels?

Mr. Levinson, are you familiar with this?

Mr. LEvINSON. Yes, although I know that Mr. Shaw will also
want to speak to this at some length, because he, too, knows it
well.

That 80 percent figure, let me first say, is consistent historically
with the affirmance rates that the agency is given to adverse action
appeals, the typical kind of termination or disciplinary case that
comprises more than half of the Board’s caseload encies do get
affirmed approximately 80 percent of the time. This has been true
for many years.

Frankly, if it was much lower, it would suggest serious mai -
ment problems if agencies can’t take their adverse actions and be
able to prevail most of the time they are challenged. That would
raise a serious problem in terms of how that agency is managing
its people.

With respect to those cases of losers, if the employee is brought
back on the rolls, the agency that took the action would be bearing

expense of the case. Certainly attorneys’ fees, as you may
know, under the Civil Service Reform Act, are available in a sub-
stantial number of these cases, and those fees would be paid, I
guess, out of the Justice Department fund.

Mr. FISCHER. Once it gets to court.

Mr. Levinson. And by the agency itself if it doesn’t get to court.

Mr. Fiscuer. Right.

Mr. Mica. Mr. Shaw, did you want to respond?

Mr. SHAW. Well, I don’t really have much to add to what Mr.
Levinson said.

The impact of lost cases on an agency, especially in a perform-
ance case, can be very, very devastating when that employee is put


109

STATEMENT OF
GILBERT F. CASELLAS, CHAIRMAN
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
BEFORE THE
SUBCOMMITTEE ON CIVIL SERVICE
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
U.S. HOUSE OF REPRESENTATIVES
NOVEMBER 29, 1995

Good morning Chairman Mica and members of the Subcommittee. Thank you for
inviting me here today to discuss streamlining the various appeals processes available to
federal employees.

I certainly believe that, consistent with the goals of the National Performance Review,
it is fully appropriate to review federal government civil service and employee complaint
processes to determine where streamlining and improvement can be accomplished. However,
insofar as this review addresses the Equal Employment Opportunity Commission's (EEOC)
role in the federal appeals processes, it is also my view that it must be guided by the
principle that safeguarding the civil rights of federal employees is a paramount value.

‘The unfortunate reality is that discrimination and the problems of unequal opportunity
persist in the federal government. As much as we would all like to believe that these
problems have been largely resolved, both the quantity and the nature of the complaints filed
provide potent evidence to the contrary. It is useful to review some of the key indicia of the
problem. During fiscal year (FY) 1994, there were 68,084 counselling contacts (the first
step in the federal sector equal employment opportunity (EEO) process) initiated by federal
employees government-wide and 24,592 formal EEO complaints were filed. More than half
of the more than 21,000 cases closed by agencies that year resulted in a corrective action by
the agency, through settlement or otherwise. The EEOC received 7,141 appeals of agency
decisions. Administrative backpay awards totaled more than $17 million government-wide.

In addition, current workforce statistics are instructive. They reveal that minorities
and women continue to be concentrated at the ower grade levels of federal employment and
that their representation falls as grade level rises. Looking again to FY 1994, women were
72.61 percent of government employees in grades 1 through 8 and minorities held 38.87
percent of these lower graded positions. However, at the grade 15 level, women dropped to
17.44 percent of the total and minorities, to 12.65 percent. In the Senior Executive Service,
the highest ranks of civil service employment, women were only 16.35 percent of the total
while minorities were only 9.8 percent. In federal white collar employment generally,
whites continued to hold jobs that averaged between one and two grades higher than those
held by minorities.


30

relations legislation and therefore cannot form bargaining units
or engage in collective bargaining. what are the implications of
the varying levels of protection on the fairness with which these
employees are treated? Are there lessons here that might be

applied elsewhere in the civil service?

Finally, it should be noted that legislative branch employees are
treated differently from those in the executive branch. For
example, under the Congressional Accountability Act of 1995,
beginning in January 1996 congressional employees with
discrimination complaints will be required to choose between two
redress alternatives, one administrative and one judicial. The
administrative alternative will allow employees to appeal to the
Office of Compliance, with hearing results appealable to a five-
member board. The board's decisions may then be appealed to the
U.S. Court of Appeals for the Federal Circuit, which has a
limited right of review. The other alternative will be to bypass
the administrative process and file suit in U.S. District Court,
with the opportunity to appeal the court's decision to the
appropriate U.S. Court of Appeals. The effect of this
arrangement is to avoid the opportunity for the “two bites of the
apple*--one administrative, one judicial--currently offered
executive branch employees. Congress may find that experience
with the new system in operation may be instructive for

considering how best to provide employees redress.

18


213

Mr. SHaw. I am afraid what it would do is, it would stop valid
complaints by low-level employees that couldn’t afford the $100 fil-
ing fee or couldn’t afford to take the risk that they might have to
pay for the process.

‘or the Federal Government to do a “loser pay” I think would
not be Bppro} riate.

Mr. Mica. Mr. Levinson. Mr. Fischer.

Mr. LEVINSON. I would question whether the realignment of a fee
issue would do all that much to correct the infirmities in the cur-
rent system. To my mind, if the unified agency —

Mr. Mica. You don’t think it would cut down on the complaints
and appeals?

Mr. LEVINSON. It is going to cut down on certain complaints, and
the question is, are we cutting down on the kind of complaints we
think shouldn’t be filed in the first place, or are we in effect
chilling those meritorious claimants because, as Jerry said, they
don’t have the $10 or $100, or whatever, to file.

There is something of a balance right now in the system in which
there is, in effect, a, quote-unquote, free appeals process system
through an agency like the MSPB, although attorneys’ fees up front
are certainly not paid. In order to get professional counsel, there
is a need to arrange for that.

Looking in terms of structural change, I think if you look more
toward ing the intake system itself to better Separate meri-
torious from nonmeritorious claims, that that time will be more ef-
fective in cutting down on the numbers that deserve to be cut

own.

Mr. Mica. Did you want to respond, Mr. Wolcott?

Mr. Wotcort. I would like to say that I agree, a broad fee
wouldn’t solve any particular problems and would have certain
fairness implications,

I would like to say the grievance and arbitration procedures do
have a sort of cost evaluation element to them, because the union
pays the cost of arbitration, so frivolous cases don’t get arbitrated.

ievances may be filed, but once the internal grievance proce.
dure gets to the point where arbitration has to be invoked, the
union can decide, will decide, and often does decide not to arbitrate
cases that it doesn’t think are worth spending the arbitrator’s fee

on.

So I think that—the element that we use and that we propose
very much has in it a cost-conscious approach.

. Mica. A final question: Do any of you feel that any of the
appeals levels should be eliminated? If so, which ones, and are
there any bites of the apple that should be eliminated in the ap-
peals process?

Mr. Levinson.

Mr. LEVINSON. The system is ripe with overlapping jurisdictions.
The mixed case procedure is the most glaring example of a Rube
Goldberg contraption that is infrequently used but should really be
taken off the books simply because it is there and can be abused.
and the costs involved bear absolutely no relation to what is trying
to be accomplished on the merits.

There is great potential for inconsistent ruli among and be-
tween the agencies. You didn’t hear very much about it this morn-


89

FEDERAL SECTOR LABOR RELATIONS

Over 95% of all unfair labor practices in the federal sector are filed by institutions,
namely, federal unions or federal agencies. Only 5% are filed by individual
employees. The vast majority of all unfair labor practices are filed to address
Statutorily conferred rights of these institutions, predominately, the right to bargain
or the right to perform representational functions on behalf of a labor organization.
These charges are quite often filed because of a historical labor relations model
which is grounded in the traditional adversarial approach. A second major basis for
the filing of unfair labor practices is the nature of the relationship between the
parties. Frequently in the federal sector, unfair labor practices are filed as a
reflection of problems in the underlying relationship between labor and
management. If there are problems based on lack of trust or other relationship
issues, such issues will be interwoven with the legal issues set forth in the unfair
labor practice charge. We seek to investigate and prosecute violations of the
as well as be responsive to the needs of the parties for solutions to improve their
labor-management relationship. Improved labor-management relations have a
positive impact on the entire human resource management system in the federal
government.

Another re of federal sector labor relations is that the FLRA has repeated
dealings with the majority of the parties who regularly file unfair labor practice
charges. Indeed, the OGC has had ongoing dealings with various facilities for the
entire life of the program. This is due in large measure to the constant turnover
that occurs in both management and union personnel. Understandably, this
turnover results in a continual reexamination of the parties’ respective rights and
obligations under the Statute. Thus, through the processing of unfair labor practice
charges the OGC has a keen awareness of the parties’ evolving relationships,
issues and concerns.

Given the factors described above, the OGC is very different than its private sector
counterpart. Essentially, the FLRA has responsibility for the regulation of a labor-
management relations program with only one employer. While the various
agencies have different responsibilities and missions, they are all instrumentalities
of the federal government. FLRA decisions must not only protect the statutory
rights of the parties involved, but must also further the effectiveness and efficiency
of the government. To serve the purposes of the Statute, the FLRA must not only
see that the right thing is done for the parties to the dispute, but also for the

quires innovative approaches to disputes between labor and
jue, but also will
form the basis for future improvement of the relationship between labor and
management. A sound and productive labor-management relationship greatly
assists the development of a more effective and efficient government.



@NITEU

TESTIMONY OF
ROBERT M. TOBIAS
NATIONAL PRESIDENT

BEFORE THE

SUBCOMMITTEE ON CIVIL SERVICE
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

oN

STREAMLINING THE APPEALS PROCESS

NOVEMBER 29, 1995

U.S. HOUSE OF REPRESENTATIVES

901 E Street, N.W. + Suite 600 + Washington, D.C. 20004-2037 « (202) 783-4444


84

interest-based dispute resolution services in pending unfair labor practice,
representation, negotiability and impasse bargaining disputes. It will also assist
labor and management in developing collaborative relationships and constructive
approaches to conducting their relationship. This is one area where we need to
avoid structural changes that make the system less effective rather than better.

Considerations such as these suggest some of the questions that should be part of
any serious discussion about improving the structure of our present workplace
dispute resolution agencies -- particularly if what's contemplated breaks apart the
FLRA. These questions include: How do we maximize the development of labor-
management collaboration and conflict resolution as an alternative to litigation, and
is it important to have a unified program charged with leadership in this area? How
can we most efficiently make appropriate unit determinations, and is it important to
have a unified program to do so? How do we integrate programs and processes
that address individual rights, on the one hand, and institutional relationships, on
the other? If changes are to be made, what is the best time to make them?

Thoughtfully addressing these and other questions will make it possible to avoid
implementing reforms that result in inadvertent and excessive costs. But even
more important than considerations about costs, | believe, is to consider how
reform can achieve real benefits. Which means it is crucial to understand what
benefits we aim to achieve.

WHAT ARE THE GOALS TO SE SERVED BY REFORM?

it appears that some of the current interest in reforming the workplace dispute
resolution agencies by restructuring -- and, in particular, consolidating -- them is
prompted by the goal of eliminating a perceived “overlapping jurisdiction” problem.
This problem, | have heard suggested, gives federal employees more than one
forum in which to bring their complaints -- two or more “bites at the apple.” While
I recognize that this perception is widely touted, it is crucial to pin it down —
because unless we understand how and why this is a problem, we are unlikely to
solve it. Let me offer some relevant facts to inform this understanding. There are
only two limited opportunities for this type of jurisdictional overlap between the
FLRA and other affected agencies. In addition, there are already a number of
mechanisms at work that curtail an employee from taking more than one path to
register his or her complaint.

Another potential goal that’s been suggested has to do with preventing “poor
performers” from using their statutory rights and the adjudicatory process as both a
shield and sword to avoid discipline and/or adverse action. As to this, again, some
facts might help. Most of the disputes addressed by the FLRA do not involve
performance issues; indeed, as | mentioned above, only a small portion of our
workload deals with complaints concerning individual employees.

6


12

FEDERAL EMPLOVEE 2EDRESS: An Opporruniiy for Pefors

Statement by

othy ?. Bowling, Associate Director
Management and viorkforce rssues

General Government Division

The purpose of the redress system for federal exployees is to
uphold the nerit system principles by ensuring that federal
employees are protected against arbitrary agency actions and
prohibiced personnel practices, such as discrimination or
retaliation for whistleblowing. But how well is the redress system
working, and does it add to or detract from the fair and efficient
operation of the federal government? In response to these
questions, GAO makes three points:

-- First. because of che complexity of the system and the variety
of redress mechanisms it affords federal employees. it is
inefficient, expensive, and time-consuming.

-- Second, because the system is so strongly protective of the
redress rights of individual workers, it is vulnerable to
employees who would take undue advantage of these protections.
Its protracted processes and requirements divert managers from
more productive activities and inhibit some of them from
caking legitimate actions in response to performance or
conduct problems. Further, the demands of the system put
pressure on employees and agencies alike to settle cases
regardless of their merits--to avoid potential costs.

- Third, alternatives to the current redress system do exist.
These alternatives, in the private sector and elsewhere, may
be worth further study as Congress considers modifying the
federal system.

Leading private sector and nonfederal employers have told GAO that
managers in their organizations are held accountable for treating
people fairly but are also given the flexibility and discretion to
make the tough decisions that are an inevitable part of managing
well. These organizations recognize that a balance must be struck
between individual employee protections and the authority of
managers to operate in a responsible fashion. To the extent that
the federal government's administrative redress system is tilted
toward employee protections at the expense of the effective
management of the nation's business, it deserves congressional
attention.


205

provide for more effective resolution of employee-employer
disputes, and they should be utilized. :

- The authority for the EEO administrative process should
be modified as is proposed in the Federal Employee Fairness Act,
H.R 2133. This Act would greatly streamline the federal sector
EEO process, eliminate the fundamental conflicts of interest that
currently exist within the process, provide strong incentives to
eliminate discrimination, and discourage employees from filing
meritless EEO charges. It provides for mandatory conciliation,
the early dismissal of meritless claims, and the resolution
without a hearing of cases that do not present factual issues.
The Act aleo streamlines the administrative process and
eliminates the cumbersome mixed-case procedure for combined MSPB-
EEOC jurisdiction.

In conclusion, I want to stress that NTEU is eager to work
with the Subcommittee to formulate modifications to the current
system that will increase government efficiency and enhance
dispute resolution. We are happy to consider suggestions for a
less formal procedural structure, as long as these new forms
Provide an effective role for employees and insure that their

interests will be protected.


54

Chairman Mica, Ranking Member Moran, and Members of the
Subcommittee:

I am pleased to appear before you today as the Civil
Service Subcommittee continues consideration of the Federal
civil service system. As one who was involved in such
issues closely during my ten years on the House Government
Operations Committee, the predecessor to this Committee, I
appreciate the value of the oversight you are providing
today. I pledge my cooperation with the House, the Senate,
and the Administration as we pursue this subject in the
months ahead.

The U.S. Merit Systems Protection Board (MSPB) was
established by the Civil Service Reform Act of 1978 (CSRA)
as an independent agency in the Executive Branch. Its
adjudicatory role in the civil service system is to protect
the merit systems in Federal employment by ensuring timely,
fair, and neutral disposition of employee appeals of agency
personnel actions and providing guidance to agencies and
employees through precedential decisions.

The MSPB is also charged with oversight review of the
Office of Personnel Management (OPM) actions and the study
of merit systems in the Executive Branch. The Board
provides the only independent, neutral review of Executive
Branch programs, and its studies and reports are used by
this Subcommittee as well as many others in the field. I
have attached a summary of some of this significant work to
my testimony.

As we take a look at the civil service system, it seems
to me that it is worth remembering the basic principle
underlying the CSRA--protection of the merit systems within
a framework of amlined management. A fair and neutral
third-party administrative review of agency personnel
decisions seems as valid today as in 1978.

From my perspective as Chairman of the MSPB, and based
on our 1995 data, I can report that the MSPB process is
working faster, more efficiently, and better than ever. The
impetus for this clearly comes from mandates from the
President, the National Performance Review, and the Congres
to create a government that works more efficiently and co:
less.

The MSPB process is the final admin: rative stage in
an agency personnel action. However, it should be noted,
that the overwhelming percentage of actions taken by
agencies are not even challenged before the MSPB. As stated
by our Director of Policy and Evaluation in your October 26,
1995, hearing: “Based on estimates provided by


171

TESTIMONY OF
LLEWELLYN M. FISCHER
BEFORE THE CIVIL SERVICE SUBCOMMITTEE
OF THE
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
UNITED STATES HOUSE OF REPRESENTATIVES
NOVEMBER 29, 1995

Chairman Mica, Ranking Member Moran, and members of the
Subcommittee; I am pleased to appear before you today. Until July of this
year, | was General Counsel of the U.S. Merit Systems Protection Board
(MSPB). I served in that capacity for nine years. Before that, I was an
Associate General Counsel at the U.S. Office of Personnel Management
(OPM) and an attomey with its predecessor, the U.S. Civil Service
Commission. In fact, | began my government career in 1966 as an
Investigator with the U.S. Civil Service Commission and spent my entire
career with that agency and its successors, MSPB and OPM.

I hope my perspective on streamlining Federal employee dispute
resolution processes will assist you in deciding if reform is necessary and, if
so, how it should be accomplished.

Before the Civil Service Reform Act of 1978 (CSRA), employee
dispute resolution processes were administered by one agency, the U.S. Civil
Service Commission. Since then, that authority has been divided among five
separate agencies. OPM processes complaints from employees about how
their job duties are classified. MSPB hears employee appeals from certain
types of personnel actions and complaints involving prohibited political
activity and reprisals against whistleblowers brought by a separate agency,
the Office of Special Counsel (OSC). The Equal Employment Opportunity
Commission (EEOC) has jurisdiction over employee discrimination
complaints and related matters. The Federal Labor Relations Authority
(FLRA) resolves labor-management controversies in the Federal sector.

The CSRA was intended to correct what was then perceived to be
serious defects in the civil service system created by the Pendleton Act of
1883. Over the years, the Civil Service Commission had taken on both
management and employee protection responsibilities. It was thus viewed in


96

resolution process should be to reduce the costs of conflict. | wholet
support this view, and suggest that overlooking the distinction between
institutional and individual rights in the process of streamlining could undermine the
considerable success the three components of the FLRA have already had in
reducing the costs of conflict. In this regard, it is important to note the symbiotic
relationship between the Panel and the other two FLRA components. | believe a
clear understanding of the nature of this relationship is particularly critical in any
discussion of streamlining. Because institutional conflict within the federal sector
springs from the same source, the collective bargaining relationship, the three
components of the FLRA, though all charged with performing different roles under
the Statute, work together in various ways to produce a cost effective system.

rtedly

Two brief examples should serve to illustrate this point. For years, the components
have collaborated in adopting internal mechanisms designed to prevent parties from
engaging in forum shopping. These mechanisms have been successful in avoiding
the needless expenditure of resources while ensuring that the parties retain their
rights to have their issue decided by the most sppropriate forum. A second
example of component collaboration designed to reduce the cost of conflict is the
centralized labor-management cooperation program the FLRA is preparing to launch
which will use the knowledge and expertise of ail three components to improve
federal sector relationships and prevent future conflict.

As the federal sector substitute for the lockout and the right to strike, the Panel
has the unique role of ensuring finality in the collective bargaining process. As this
Committee considers various streamlining options, it should be clear that as long as
collective bargaining in the civil service is deemed to be in the public interest, and
federal employees are denied the right to strike, some mechanism for the resolution
of bargaining impasses will always be required. An alternative to the Panel that is
often mentioned in this context would be to require the parties to go to private
arbitrators for the resolution of their impasses. The option appears to be con:
with the current focus on contracting out Government services to the private
sector.

tent

It should, however, be understood that the Panel itself on occasion recommends
and, if necessary under the particular circumstances of the case, directs the parties
to take their impasses to private arbitrators. Moreover, the exclusive emphi on
private arbitration to resolve bargaining in the federal sector does not take into
account Congress’ intention that those who resolve federal sector impasses be
accountable to the governmental process for the decisions they render. The
statutory requirement that Panel Members be appointed “solely on the basis of
fitness to perform the duties and functions involved, from among individuals who
are familiar with Government operations and knowledgeable in labor-management
relations,” illustrates this concern. The Panel’s current composition reflects that
the Statute is achieving this important public policy goal.

2


185

with the MSPB, and they are unable to resolve their differences,
then a Special Panel must be comprised made up of one
representative from each of the two agencies, along with a
Presidentially-appointed chairman. The Special Panel’s decision

can then be taken by the employee to federal district court, which

can review the case on the record and can allow other evidence not
included in the record to be considered. If the employee is
dissatisfied with the decision of the District court, he or she can
appeal to a Federal Circuit Court of Appeals and, ultimately, to
the Supreme Court.

Meanwhile, if the employee is a member of a union or a union

official, they may file an unfair labor practice charge with the
Federal Labor Relations Authority (FLRA). The General Counsel of
the Authority can prosecute unfair labor practice complaints on
behalf of the employee to an Administrative Law Judge of the FLRA.
The Administrative Law Judge’s decision can be appealed to the full
FLRA panel comprised of three Presidential appointees. That
decision is then subject to review by the Federal Circuit Court of
Appeals.

I could go on to discuss the individual EEO complaint process
or the Office of Special Counsel process, which the employee could
also use, but I will not, nor will I discuss the ability of a
bargaining unit employee to take the matter to arbitration under a
collective bargaining agreement. Suffice it to say that these


170

archaic to have these five agencies administering these complicated
systems that are so difficult to understand.

The other problem is, when these processes overlap and we heard
testimony and Mr. Chairman, you mentioned the Lynch case as an
example of what happens when these processes overlap and you get.
bounced back and forth between the MSPB and the EEOC.

There is also the potential—and Chair Segal spoke to this—about
cases going back and forth between the FLRA, the MSPB, and the
EEOC. Almost everyone agrees that this hasn’t been a problem re-
cently. That does raise the question, and I agree, it was my experi-
ence that there were not that many cases, but why keep that struc-
ture if it is no longer needed?

It is clear, also, that having these five Separate agencies in-
creases administrative costs, and in the area of personnel, budget,
procurement, public information, congressional liaison, these are
areas that were specifically eted by the National Performance
Review for reduction, and a reduction could be made if these were
under the umbrella of one agency.

So I am in favor of the creation of one agency. It could be done
incrementally. Initially the agencies could be placed under the sin-
gle leadership of a board or commission. They could parade within
their other sphere until they become comfortable and expert in the
processes. This worked. It worked under the Civil Service Commis-
sion, and I think it would work under a new consolidated agency.

The present processes of the MSPB, EEOC, FLRA, and Special
Counsel would be put into one agency. The OPM’s classifications
appeals process, which is an anomaly since they are principally re-
sponsible for management, would also go to this new agency.

I think that initially as an additional transition matter a task
force could be established with the agency heads of staff to do stud-
ies and help provide input for the subcommittee on what measures
should be taken and provide recommendations. I think it will work.

And, Mr. Chairman, I do appreciate the opportunity to appear
before you. I would be pleased to answer any questions concerning
my remarks.

{The prepared statement of Mr. Fischer follows:]


15

Mr. Mica. I would like to recognize Phyllis Segal, chair of the
Federal Labor Relations Authority at this time.

Ms. SEGAL. Thank you, Mr. Chairman.

Good morning, members of the committee. I appreciate this op-
portunity to appear before you today and will be submitting for the
record our full statements and taking as little of your time as pos-
sible in this opening.

I would like to take a moment, though, to introduce those who
are here with me. Joseph Swerdzewski, FLRA’s general counsel, is
sitting to my right; and he is sitting at the table because he heads
one of the independent components within our agency and is pre-

ared to answer your questions if you have any for him. Betty

Iden, who chairs another independent component within our
agency, the Federal Service Impasses Panel, is also sitting with us
at the panel.

Behind us, we have also brought Tony Armendariz, who has been
a member of the Authority, the adjudicatory panel, since his ap-
pointment in 1989; and Donald Wasserman, whose appointment as
the third member of the panel is currently pending before the Sen-
ate.

I would like to emphasize in these opening remarks four primary
points, and one I have already illustrated, and that’s that the Fed-
eral Labor Relations Authority operates as three agencies consoli-
dated into one. We are already acting—operating as a consolidated
agency brought together by the Civil Service Reform Act in 1978.
Prior to that time, the functions that we performed for Federal sec-
tor labor relations were divided among other places in the Govern-
ment. We were consolidated to bring them into one integrated pro-

‘am.

The three components are the Authority, which is a three-mem-
ber panel that decides cases in four subject areas: the negotiability
of collective bargaining proposals; exceptions filed by agencies or
unions, not individuals, to grievance arbitration awards; appeals by
agencies or unions from unfair labor practice decisions; and appeals
concerning representation issues—determinations of representation
petitions.

The Office of General Counsel, which accounts for over half of
our agency, is headed by the general counsel and the staff—he and
the staff he directs investigate, prosecute, settle and litigate OPM
claims. In addition, it carries out responsibilities in the representa-
tion area delegated to it by the Authority.

The Federal Service Impasses Panel resolves impasses between
Federal agencies and unions representing Federal employees, aris-
ing from negotiations over conditions-of-employment issues. This
unique organizational structure reflects the FLRA’s emphasis on
institutional relationships as opposed to individual employee ap-
peals.

I will tell you that our consolidation brings certain challenges
and also carries with it important benefits, which brings me to my
second point.

The collective bargaining program administered by the FLRA
certainly involves Federal employees, but the focus of our work is
not Federal employee appeals. To understand our mission and role,


218

Mr. Mica. We have received additional testimony that is re-
juested to be made part of the record. That will be made part of
the record, without objection.
[The additional testimony follows:]


36

IN ADMINISTRATIVE OVERHEAD COSTS, IT MAY HAVE LITTLE INFLUENCE.
ON HOW EFFICIENTLY AND EFFECTIVELY THE VARIOUS APPEALS SYSTEMS
ARE ADMINISTERED. IN ADDITION, THE CONSOLIDATION OF AGENCIES
MAY BE RELATIVELY EASY TO ACCOMPLISH WHILE THE CONSOLIDATION
OF THE VARIOUS APPEALS SYSTEMS MAY BE MORE CONTROVERSIAL,
PERHAPS REQUIRING NEW WAYS OF VIEWING EMPLOYEE DUE PROCESS.
AND EMPLOYEE APPEAL RIGHTS. THESE ISSUES WERE LAST
SUBSTANTIVELY ADDRESSED WHEN THE CIVIL SERVICE REFORM ACT OF
1978 WAS ENACTED AND WHICH, AMONG OTHER THINGS, TRIED TO HELP
MANAGERS DEAL WITH EMPLOYEES WHO ARE POOR PERFORMERS.

ANOTHER CONSIDERATION, OF COURSE, IS TO ENSURE THAT THE
INTERESTS OF THE STAKEHOLDERS IN THE APPEALS PROCESS ARE
UNDERSTOOD AND ADDRESSED. AS WE SEE IT, THERE ARE SIX MORE OR
LESS DISTINCTIVE, BUT BY NO MEANS MONOLITHIC, STAKEHOLDERS.
SOME OF THESE CATEGORIES OVERLAP TO SOME DEGREE AND
INDIVIDUALS MAY BE MEMBERS OF MORE THAN ONE GROUP.

FIRST, THERE ARE THE APPEALS AGENCIES THEMSELVES, INCLUDING OPM.
WHICH HAS RESPONSIBILITY FOR ADJUDICATING JOB CLASSIFICATION
APPEALS AND FAIR LABOR STANDARDS ACT COMPLAINTS. HERE, EACH
AGENCY HAS BEEN CHARGED BY CONGRESS WITH ADMINISTERING SOME


181

i

SENIOR Executives ASSOCIATION
PO. BOX 7610 * BEN FRANKLIN STATION

WASHINGTON, DC 20046
202-927-7000

TESTIMONY OF
G. JERRY SHAW
GENERAL COUNSEL
TO THE SENIOR EXECUTIVES ASSOCIATION
BEFORE THE
SUBCOMMITTEE ON CIVIL SERVICE
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
U.S. HOUSE OF REPRESENTATIVES
ON
STREAMLINING THE FEDERAL EMPLOYEE APPEALS PROCESS

NOVEMBER 29, 1995


220

resources leaders and line managers successfully meet the challenges confronting their
organizations. A panel of advisors, including NAPA elected Fellows and other experts,

oversees these projects and study efforts.

In fiscal year 1995 we worked with 31 agencies to research best practices and lessons
leaned from the private sector and federal, state and local public levels and linked this
research with examples of high performing organizations. The research, interviews, and
analyses have been compiled into a series of publications on innovative approaches to human
Tesources management. A new consortium of agencies has been organized for fiscal year
1996, It will focus on transforming the “best practices” and “lessons learned” into practical

applications to improve the current federal work environment.

With regard to employee appeals, there are unresolved questions primarily about

overlapping jurisdictions and processes and multiple avenues of review for essentially

identical issues. As these and related questions are raised based on individual cases, it is
useful to keep in mind that at this point relevant data have not been compiled and analyzed.
As we examine these issues, | believe it is instructive to review the history of events leading

to the present arrangement.

BACKGROUND
‘With the enactment of the Civil Service Reform Act (CSRA) in 1978, four agencies

were given primary responsibility for adjudicating disputes between employees and agency


48

years’ worth—several years’ worth, in some cases—worth of review
and appeals.

So if court—if the process is simpler and shorter, then the agency
might be willing to pursue those cases that it feels were more meri-

rious.

Mrs. MORELLA. Would you like to make any responsive com-
ments, Mr. Heuerman?

Mr. HEUERMAN. I can’t say, Mrs. Morella, that I am aware of any
frivolous instances where agencies have settled what they clearly
said were frivolous cases.

As Mr. Bowling indicated, we are, of course, aware of instances
where agencies have settled issues where they believe that they
were in the right, so to speak—in the right in the sense of, we
know what the facts are, we know what the law is, but have also
perceived that it is within their interest in terms of their basic ob-
jective, and that is to resolve the problem, either get the employee
out of the workplace or take some other corrective action that the
settlement process actually aids achieving what their ultimate ob-
jective is, even though they may be in the right, quote, unquote.

Mrs. MoRELLA. I certainly would like to ask the opinion of both
of you with regard to the consolidation of the four agencies, but I
know that, Mr. Heuerman, you said that you couldn’t give us a de-
finitive response.

Mr. Bowling, you have commented on it, using the ADR proce-
dure, such as Agriculture does, in looking at what the private sec-
tor does. But I do hope that as further ideas develop in terms of
what advice you might want to give this committee, that you will
feel free to do so.

In my remaining moment, let me just ask a hypothetical ques-
tion. In the case of the furloughs that we have just experienced,
what recourses would employees have who were furloughed or con-
sidered nonessential?

Let’s say in the event that they were not—they had no promise
of being paid. Would there be any recourses that they might have?
What redresses; avenues?

Mr. HEUERMAN. Yes. A furlough action is appealable to the Merit
Systems Protection Board or grievable under a negotiated griev-
ance procedure, and employees were informed of that right as part
of the furlough process.

Of course, because of the action of Congress in terms of providing
retroactive pay, there was no furlough. So this will not be an issue
with res

Mrs. MoRELLA. But if it were, because if I——

Mr. HEUERMAN. Right. If they had not been—received back pay
or retroactive pay for the time they were off duty and in a nonpay
status, then. that would have been an effective furlough and they
would have had an appeal right.

Mrs. MoRELLA. How would they have appealed? What would
they have done? What would you have suggested? Not that you
were going to suggest anything.

Mr. HEUERMAN. I don’t know that we would—we would certainly
inform them of how to appeal and where to appeal; that is, the
agencies would. But it might be on the grounds of—that there was
no cause for it, that they were in a position covered—that was


117

PRE-COMPLAINT PROCESSING

‘As with part 1613, a person believing they have been retaliated or discriminated against on the
basis of race, color, religion, sex, national origin, age, or disability must, under part 1614, (1)
seek counseling from the alleged discriminating agency prior to filing a complaint, and, (2) file
a written complaint with that agency if an informal resolution was not reached. Part 1614
extends from 30 to 45 days the time limit during which an employee or applicant must generally
contact a counselor after the discriminatory event or personnel action occurs. An agency may
permit counseling up to 180 days after the discriminatory event based on several factors, ¢.g.,
(1) the individual was not notified of the time limits or otherwise aware of them, or (2) he or
she did not know and reasonably should not have known that the matter or personnel action that
occurred was discriminatory. Counseling beyond 180 days shall only be permitted in situations
where the late filing of a private sector charge would be justified by facts indicating the
appropriateness of waiver,

estoppel or equitable tolling.

Ordinarily, counseling must be completed within 30 days unless both parties agree to a
maximum extension of an additional 60 days. In cases where an employee or applicant elects
to use alternative dispute resolution procedures available as part of the agency’s counseling
function, counseling must be completed within 90 days. If the matter has not been informally
resolved, the individual shall be informed in writing at the conclusion of the counseling period
of the right to file a discrimination complaint,

AGENCY PROCESSING OF INDIVIDUAL COMPLAINTS.

‘An agency must acknowledge receipt of a properly filed complaint in writing and conduct a
complete and fair investigation within 180 days from the filing date of the complaint. With the
complainant’s consent, agencies may extend processing for up to an additional 90 days. In
developing a complete and impartial factual record, agencies may use any fact-finding methods
that efficiently and thoroughly address the matters at issue. During the 180-day period,
agencies’ responsibilities are limited to investigation, settlement attempts and issuance of a notice
of final action. Part 1614 eliminates the informal adjustment and proposed disposition stages
of part 1613.

‘After the agency completes its investigation within 180 days from the filing of the complaint or
within any allowable period of extension, the agency shall notify the complainant that he or she
can request a hearing by an EEOC administrative judge within 30 days or, alternatively, an
immediate final decision by the employing agency. If the complainant requests a final decision
or the 30-day period lapses without the individual requesting a hearing, the agency will have 60
days to issue the decision.

If the complainant requests a hearing, an administrative judge shall oversee discovery, conduct
a hearing, issue findings of facts and conclusions of law, and, where a finding of discrimination

2


United States
lerit Systems Protection Board
Testimony of

Ben L. Erdreich
Chairman

USS. Merit Systems Protection Board

Before the
Subcommittee on Civil Service

Committee on Government Reform and Oversight
United States House of Representatives

November 29, 1995



204

current system should therefore focus on these successful
approaches. The trend toward less formal procedures, more
oriented to problem solving, dovetails with the current trend to
more flexibility and decentralization in governmental operations
generally.

If the kinds of procedures that NTEU has utilized
effectively are to become widespread and to serve as the sole
procedure available for certain kinds of problems, then there
must also be a mechanism to make sure that the procedures are
adequately funded. While the details of this process are a
matter that is best left up to the parties, the current
prohibition of mandatory representation fees must be eliminated.

I have several concrete proposals that would simplify the
process in the manner I suggest.

- The current restrictions on the resolution of
negotiability issues should be eliminated so that mediators and
arbitrators who are resolving bargaining impasses can also
determine the negotiability of specific proposals. Under current
law, negotiations may stop when one party asserts that a proposal
ig not negotiable, and the issue is resolved through the FLRA’s
negotiability procedure. Further, the enforcement of arbitration
decisions should take place in district court with the same
limited review that is now afforded in the private sector.

- The MSPB‘s jurisdiction should be markedly reduced.
MSPB should only be available for employees who are not included

in collective bargaining units. Negotiated grievance procedures


188

‘The Honorable John L. Mica 2 December 6, 1995

+ Increased Settlements: 47% of all unfair labor practice charges filed during the
Jast two years were settled either during investigation or after issuance of a
complaint. This reflects a 14% increase in the settlement rate over the average
settlement rate during this ten year period.

In addition to alternative dispute resolution efforts, the significant reductions in the unfair
labor practice area are also due, in part, to the new Prosecutorial Discretion Policy utilized by the
General Counsel which sets criteria for dismissing certain unfair labor practice charges because
litigation does not effectuate the purposes of the Federal Service Labor-Management Relation
Statute. The increase in settlements is similarly due in part to the General Counsel’s Settlement
Policy, which is dedicated to helping the parties work together to resolve their own disputes
short of litigation, and to the pilot pre-trial project instituted in June, 1995, in our Office of
Administrative Law Judges,

These are just a sampling of the indicators reflecting how the FLRA and the parties we
serve are successfully reducing the costs of workplace conflict. Our experience at the FLRA_
gives me confidence that if we set our sights on reducing the costs of federal workplace disputes,
we can increase the effectiveness and efficiency of our government. We welcome the
opportunity to work with you and the other Members of the Committee on this important
endeavor.

Enclosures

ce: Hon, James P. Moran, Ranking Minority Member


49

funded, that they were improperly considered excepted employees
or nonexcepted employees, or that procedures weren’t followed, that
they weren’t informed fully and completely as to the particulars of
the furlough. Those would be the typical kinds of grounds.

Mrs. MORELLA. You couldn’t file a class action suit with all of the
Federal employees that had been furloughed? A possibility.

Mr. Moran. Did you want to put that suggestion in writing?

Mrs. MORELLA. Now, listen, I don’t want any shutdowns of gov-
ernment. I don’t want any employees to be considered nonessential
again. I can’t think of anything more demoralizing than saying you
are nonessential, you are essential, you are nonessential. So maybe
we will never face that again, I hope.

Thank you, Mr. Chairman.

Thank you, gentlemen.

Mr. Mica. I thank the gentlelady. I also thank our panelists.

We may have additional questions. We will submit them to you
in writing. We appreciate your cooperation in this morning’s testi-
mony and also in responding to further questions. So thank you,
and we will excuse these witnesses.

I would like to call our second panel.

Mrs. MORELLA. Mr. Chairman, as you call the second panel,
could I just mention to Mr. Heuerman that I am very fortunate, be-
cause at my back is the gentleman who is from OPM, who is what
an—educational development specialist, and I must say, if he is in-
dicative of the kinds of employees you have there, we could be very
proud of OPM.

Mr. HEUERMAN. Thank very much.

Mrs. MorRELLA. Thank you, Mr. Chairman.

Mr. HEUERMAN. We are very proud of him also.

Mr. Mica. Again, in calling our second panel, we have Benjamin
Erdreich, who is chairman of the Merit Systems Protection Board;
we have Phyllis Segal; she chairs the Federal Labor Relations Au-
thority; we have Kathleen Day Koch, Special Counsel of the Office
of Special Counsel; and we have Gilbert F. Casellas, chairman of
the Equal Employment Opportunity Commission; a rather distin-
guished panel.

We would like to welcome you. I think for most of you, this is
your first time here.

As is customary—this is an investigations and oversight sub-
committee of Congress—we do swear in our witnesses, so I would
ask you to all stand.

And I see you have someone else with you. Let me see. We have
Tony Armendariz, a member of the Authority; Joseph Swerdzewski,
general counsel; Betty Bolden, chair of the Federal Services Impact

‘anel,

I understand you may not testify, but we will swear you in any-
way.

{Witnesses sworn.]

Mr. Mica. The record will reflect, the witnesses answered in the
affirmative.

Again, I would like to welcome you to the subcommittee today.
As is customary and I mentioned to our previous panel, if you have
a lengthy statement, we would be glad to make that part of the


215

flect the fact that there is pretty limited judicial review of those
cases. I don’t know that making the judicial review even more lim-
ited than it is now would serve any purpose other than to allow
agencies to get off course.

Mr. Mica. Well, I want to thank each of our panelists today for
their valuable contributions and their wealth of experience.

rs. Morella has asked that her additional questions be submit-
ted to you. We may have additional questions that we will also sub-
mit to you.

Mr. Moran is involved in the Bosnia matter, and we will leave
the record open for 2 weeks for additional testimony and also for
questions and responses.

[The prepared statement of Mr. Moran follows:]


209

I don’t think this is going to be encouraged by these separate
agencies, because at bottom these agencies had investments in the
programs very much as they are structured, and any possibility of
seeing a fresh perspective is going to be enhanced, I think, enor-
mously by looking for more radical reform of the system itself.

Mr. MICA. Mr. Fischer.

Mr. FISCHER. I think that it would be very difficult to reduce the
number of complaints that you have under all these systems, but
there has been a lot of talk about trying to make the processes
more efficient by using alternate dispute resolution procedures, and
maybe that is the methodology for increasing the efficiency, in deal-
ing with the problem that way.

‘he problem with that is that these processes tend to be lawyer
driven. The lawyers draft the regulations. The lawyers administer
the processes. They are taught in law school to resolve disputes in
a certain formalistic way according to the court cases that they
brief, and they extrapolate that to the systems that they admin-
ister, and they are resistant to innovative techniques simply be-
cause they have been schooled in something else.

And the courts perpetuate this, because they want to create ad-
ministrative processes in their own image, and if the administra-
tive process isn’t consistent with what the court thinks is due proc-
ess and an appropriate procedure, then they will reverse the agen-
cy, with the result that the processes become more and more
judicialized, more and more formalized, and I think that is a real
negative with alternate dispute resolution.

You would have to force the agencies, literally force them, to
adopt more informal procedures. As long as you have got these
agencies fragmented, they are going to be going in different direc-
tions. I think there should be some coordinated effort if you are
looking for alternate dispute resolution.

Right now, the FLRA has one program, the EEOC has another,
MSPB has another, consisting mostly of a settlement process. So I
think it would be—it would be useful.

Mr. Mica. That is interesting. It was interesting to hear the
MSPB Chair and the EEOC Chair both talking “about resolving
these problems in the workplace at the initial stages, and then you
look at the statistics and—that appears to be the policy of the cur-
rent administrators of these activities.

But then you look at the statistics, and you see that counseling
and workplace, actually the numbers of cases being handled at that
level has dropped, and the formal complaint process has actually
increased even though their policy now is to encourage the informal
resolution. So people are using this formal process even more.

I don’t know if I buy the EEOC Chair’s rationalization that we
are doing away with the frivolous cases. God, if we are doing away
with those and we still have formal ones at that magnitude being
filed, we still have a gigantic problem.

What do we do?

Mr. SHaw. I would like to pick up on this point. In the D.C. court
system which I will speak highly of here in a minute, in the civil
side they have a mandatory mediation before you go to trial, they
have instituted a couple years ago. It resulted in a 50 percent set-

lement rate.


216

Statement of Representative James P. Moran
On Streamlining Employee Appeals Procedures
Subcommittee on Civil Service
November 29, 1995

Mr. Chairman:

I appreciate your having this hearing today in a series of
hearings on civil service reform.

This issue is particularly important to civil service
reform. The appeals process for federal employees is
complicated, lengthy and confusing. The perception, and probable
reality, is that the process deters managers from disciplining
poor performers or initiating action in cases where there are
conduct problems. As the MSPB emphasized in their recent report;
"the wide choice of review paths available to employees serves to
exacerbate" the hesitancy of managers to take appropriate action
against poor performers.” The current process must be examined
and must be reformed.

The question, of course, is how should the process be
examined and how should the reform be structured. From the
second panel, we will hear from the heads of various agencies
charged with administering the existing appeals process. Each of
these directors will testify that the current process is not
working as well as it could but that the current structure is
appropriate. I tend to agree. Each of these adjudicatory and
administrative departments was created to resolve a specific type
of problem or concern. The EEOC hears allegations of
discrimination. The MSPB hears appeals from agency personnel
actions, such as removals, suspensions, reductions in pay, and
denials of within-grade increases. The FLRA administers the
federal labor relations program and administers the statute
protecting the rights of federal employees to participate in
unions. The OSC is an investigative and prosecutorial agency
which litigates before the MSPB.

What you have here is not an explosion of federal agencies
with overlapping mandates and jurisdiction. Instead, it is a
number of distinct and specialized agencies which have a limited
mission, a limited function, and a limited role. They are able
to operate within that role, and for their constituencies, very
well. Our mission should be to improve those operations and the
entire process rather than to merely change the boxes and changes
the administrations. We do not want to create a situation where


78

UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON. D.C 20424

STATEMENTS OF

PHYLLIS N. SEGAL, CHAIR

eee

JOSEPH SWERDZEWSKI, GENERAL COUNSEL

BETTY BOLDEN, CHAIR, FEDERAL SERVICE IMPASSES PANEL
of the
THE FEDERAL LABOR RELATIONS AUTHORITY
before the
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
SUBCOMMITTEE ON CIVIL SERVICE
U.S, HOUSE OF REPRESENTATIVES
HEARING ON
“STREAMLINING THE FEDERAL APPEALS PROCESS”

November 29, 1995


88

WRITTEN STATEMENT OF JOSEPH SWERDZEWSKI
GENERAL COUNSEL, FEDERAL LABOR RELATIONS AUTHORITY

Mr. Chairman and Members of the Committee:

It is my pleasure to appear before you today as the General Counsel of the Federal
Labor Relations Authority.

OFFICE OF THE GENERAL COUNSEL

The FLRA's Office of the General Counsel (OGC) is significantly different, in many
important respects, from General Counsel offices in other federal agencies. In
most ways it is closer in function to a District Attorney than to the corporate legal
advisor function performed by most General Counsels. The OGC is the
independent investigative and prosecutorial component of the FLRA. The Gt
Counsel is an independent prosecutor appointed by the President with the advice
and consent of the Senate. He has statutory authority to investigate, settle and
prosecute unfair labor practice (ULP) charges that are filed pursuant to the Federal
Service Labor-Management Relations Statute, and to develop policies and
procedures to process these charges. This past year more than 6000 ULP charges
were filed by federal sector labor unior ncies and individual employees. The
General Counsel decides appeals of decisions by OGC Regional Directors to dismiss
unfair labor practice charges.

The General Counsel also has responsibility for the processing of representation
petitions. The processing of representation petitions includes making
determinations regarding the appropriateness of bargaining units, and conducting
and supervising elections for the certification of labor organizations as the exclusive
representative of a bargaining unit. This past year more than 600 representation
petitions were filed for processing by the OGC. More than 95% of all
representation cases are handled by the OGC without appeal to the Authority.

The General Counsel manages, directs, and supervises all employees of the OGC,
which comprise more than 50% of the entire staff of the FLRA. The majority of
these employees are located in the seven regional offices of the OGC. This
responsibility includes supervision of the Regional Directors in the performance of
their delegated responsibility to process representation petitions and elections.


43

available to carry through those cases almost as far as they would
like to carry them. In the private sector, it is not quite so readily
available, and the incentives for trying to move forward with a dis-
crimination complaint would be somewhat less.

Mr. Mica. I think you said your study also indicates there is a
perception that numerous frivolous EEOC cases are filed either to
harass supervisors or to get a third party’s assistance in resolving
a workplace dispute. Are there steps Congress can take to discour-
age this practice?

Mr. BOWLING. There probably are some things that could be
done. We don’t have firm recommendations, but it might well be
worth looking at the possibility of allowing the administrative
judge to review cases for whether or not they are frivolous, meeting
the criteria that are laid out in the Congressional Accountability
Act legislation and, by applying those criteria, reduce the number
of frivolous cases that are actually moved to the hearing phase.

Mr. Mica. One other question dealing with alternative dispute
resolution: Are there any specific private sector techniques for re-
solving workplace disputes that Congress should examine as pos-
sible alternatives to our current system?

Mr. BOWLING. There are several different ways of doing it in the
agencies. The ones we have talked with and reviewed show several
steps within their agencies, an internal process, starting with a
mediation process with a trained mediator. .

In some cases they would then move to a peer review session
where a panel would decide the issue, and then in others they
would move these complaints up to the CEO or the vice president
for human resources, who would then reach the final decision.

But in each case these are handled very expeditiously, and when
the process has run its course, it is over, and everyone has the deci-
sion, and the end is reached rather than having a more unlimited
prospect for review.

Mr. Mica. In the 1978 Civil Service Reform Act they set up a
pretty stylized formal procedure for going through this appeals
process. You are saying that we could be less formal? We could look
at some alternative resolution procedures that, again, maybe adopt
some of these private sector roads?

Mr. BowLING. Yes, I believe that would be effective.

The Civil Service Reform Act of 1978 did have as one of its pur-

ses to streamline the process, but we feel that that has not, in

act, happened. The process is still quite complex, perhaps more
complex than before, and it has taken an awfully long time. The
number of cases are building. The backlog is building.

Clearly it has not achieved that objective, and there are some al-
ternatives for reducing the number of cases that would come into
the system through using techniques such as ADR, and I think the
private sector is a good place to look for how some of those are han-

ed.

I would also add that there are some instances in the Federal
sector where agencies are doing things on ADR as well that have
been fairly effective, and I think that the Department of Agri-
culture has done some work in this area that might be worth look-
ing at as well.


129

Do you have any numbers for how many of those 25,000 com-
plaints filed with the agencies, for example, were dismissed? Or
any numbers as to the amount of time that they took, on average?

. CASELLAS. Well, I have attached to my written statement
statistics of counseling contacts, then the formal complaints and
the resolutions and the hearings; and of course, the fact that a for-
mal complaint appears in 1 year doesn’t mean it was necessarily
resolved in that year, if it came in the later part of the year, so
it’s hard to track it exactly.

But the number of formal complaints has increased. I don’t know
whether to attribute that to more discrimination or more aware-
ness of it.

I look back at my experience; before I came to the EEOC, I
served as general counsel for the Department of the Air Force, and
we noted in 1 year that the number of sexual harassment com-
plaints had jumped some 60 percent. It also happened that the
year before, we had conducted in the Air Force sexual harassment
awareness training for some 170,000, 200,000 of our employees
worldwide. So one might argue that the heightened awareness
brought about the increase. It’s just—it’s hard to tell from this.

I will tell you, in terms of the processing time, that that has
dropped as a result of the procedures, that the 180 days is being—
we are reaching that goal much faster with regard to the internal
reviews and hearings that the agencies themselves are doing. Our
own time is about the same, going up a little bit, just because the
volume has increased and our number of people handling them has
stayed the same. So the burden on individual administrative judges

attorneys has increased, but at least the time period that the
agency themselves handle these cases has dropped.

Mr. Moran. That’s encouraging, but when the quantity has in-
creased as much as it has——

Mr. CASELLAS. Right.

Mr. MoraN [continuing]. It’s not necessarily comforting. And, you
know, a neutral observer looking at the numbers might conclude,
well, gosh, since the Clinton administration took over, the inci-
dence of employment discrimination has gone up by almost 50 per-
cent, which I think might be a hard case to prove, but the alter-
native is simply that there has been a greater accommodation to
discrimination cornplaints, more sensitivity awareness and all. But
it is a problem when GAO suggests that—well, not just suggests—
said that there’s a great deal of inefficiency and duplication be-
tween MSPB and the EEOC in the first place, and then has also
told us that the EEOC discrimination complaints has climbed rap-
idly and is a real problem.

T have to say that I do think that there is a problem within both
the private and public sector that concerns me, and it’s a situation
where the perception creates a reality that is troubling; and that
is that when a manager wants to hire a minority person, there is
a factor that can only be considered a disincentive, and that is that
the minority person is far more likely, at least in their perception,
to file a discrimination complaint if they do not work out. In other
words, there’s a perception that you have to treat minorities with
kid gloves more so than you would a white person, because of the
processes available for racial discrimination complaints, and that


118

essential for EEOC to address how it is handling its federal sector responsibi
eye to make those processes as efficient and effective as possible.

s with an

Like the EEOC private sector review that I initiated in November 1994, we have
recently undertaken a major review of our federal equal employment opportunity operations.
As with the private sector review that led to comprehensive internal operating changes, we
can and will address many of these problems and we look forward to working together with
this Committee in achieving that end. However, we cannot support eliminating or restricting
civil rights in federal employment. Any changes in the complaints processing system must
preserve and not limit federal employees’ rights to file employment discrimination complaints
when they believe their employers have discriminated against them.

The EEOC has been charged with a noble mission -- to eradicate unlawful
discrimination in the workplace. Despite severely limited resources, the Commission has
made great strides toward accomplishing its goal. Contrary to this nation’s best hopes,
however, unlawful discrimination is still a very real and widespread problem in both the
private and federal sectors.

Therefore, although J fully support the efforts of this Committee to improve the
efficiency and effectiveness of federal employee personnel systems, and to address adverse
public perceptions about federal employees, I believe it is critical that we continue to protect
the rights of federal employees to be free from unlawful discrimination in their federal
employment.

Thank you for.the opportunity to comment. I will be happy to answer any questions
you may have.


122

Mr. Mica. I will start off with a few questions for the chairman
of the MSPB, Mr. Erdreich.

The charts that you attached to your testimony show that be-
tween 1993 and 1994 initial appeals rose by 1,837 and Board ini-
tial decisions increased by 2,334 between 1994 and 1995. Could you
tell me what these increases are attributed to?

Mr. ERDREICH. Mr. Chairman, I—of course, we are the recipients,
we are like a court. Folks bring complaints to us as they deem they
have complaints.

I can say that in the last 2 years, the largest category of increase
has been RIF cases, which, I guess, is not surprising as, of course,
the downsizing of government is generating a number of folks who
are moving out of jobs and complait ining about the processes.

Mr. Mica. What percent would the RIF cases be?

Mr. ERDREICH. The increase, as I recall—I can get that to you,
Mr. Chairman—was something like a 15 or 20 percent increase in
RIF cases alone; and that’s off the top of my head. Let me give that
to you later.

ir. Mica. We would appreciate that.
[The information referred to follows:]


210

__ I was involved in a case that I didn’t think there was any way
in God’s green earth this would settle without trial, and it settled
in that mediation in three-quarters of 1 day. The mediation there
was done by attorneys and retired attorneys from government, et
cetera, on a voluntary basis. They don’t even pay them for it, but
it works.

I think a mandatory mediation system that people have to go
through before they go to trial is a very, very valuable tool to re-
duce actual trial cases.

Second, reducing the number of cases. One of the reasons I think
that you are seeing an increase in the formal complaints is because
the formal complaint is used as a shield. If an employee thinks
anything adverse might happen to them, if they file an EEO com-
plaint, and the manager does anything for in some cases years,
then they file a reprisal complaint and say the reason you are
doing this is not because I was originally—my original discrimina-
tion complaint or my original whistleblower complaint was valid, it
was because you are taking a reprisal action against me for havi
filed that original complaint. So it becomes a very effective shield

The Office of Special Counsel, God bless him, winds up most of
the time prosecuting managers because of, quote-unquote, reprisal
actions.

I have personally seen cases where the alleged reprisal action
was a normal personnel action that took place 3 to 5 years—as long
as 5 years. In this one case, 3 years, that was a reassignment as
part of a reorganization.

It just boggles the mind that, if I can make an allegation that
I can make myself a whistleblower, that therefore you can’t touch
me for the rest of my career, because if you do, the Special Counsel
is going to get you. The same thing happens in the EEO process.

0 the consolidation and the ability to deal with all these issues
in one case, in one forum, with finality is going to reduce the num-
ber of cases, in my judgment.

Mr. Mica. Did you want to respond, Mr. Wolcott?

Mr. Wotcorr. No.

Mr. MIcA. Well, I have another question dealing with EEOC, and
I address it to any of the panelists here.

It has been suggested that Congress give Federal employees the
right to file discrimination complaints directly with EEOC under
the same procedures available to the private sector individuals.
What would you think of an approach like that?

Mr. Levinson.

Mr. LEVINSON. Well, I don’t see it as necessarily helping the
process along all that much by simply allowing, in effect, the pri-
vate sector vehicle as opposed to the current system. It may be a
marginal improvement, but I think nevertheless it is accompanied
by a larger change within the executive branch. I would not view
that as in any shape, manner, or form, a comprehensive fix.

Mr. SHAW. I am not sure that that would serve any purpose. I
really believe that the Federal Government today is a much better
integrated, much more upwardly mobile workplace for minorities,
for women, for people with handicaps than the private sector, in
part because we have a separate process that people can use to get
redress, and they should.


127

Congress, but a prior Congress—to handle those disputes, but it’s
a Re ley judgment Co! ss could make.

r. Mica. Well, with that question, I will turn to Mr. Casellas.
You had also expressed some concern about Federal employees pos-
sibly not having the same rights as citizens in the private sector.

In the EEOC/MSPB mixed cases arena, what's your feeling here?
Why can’t we eliminate the mixed case procedure and still ade-
quately protect employees against discrimination?

Mr. CASELLAS. Well, again, as Chairman Erdreich just men-
tioned, the question is who does it and who is better able to do it.
We were created not to adjudicate but to enforce the civil rights
laws; and there is that intersection between personnel issues and
civil rights issues. And with regard to the personnel issues, qua
personnel issues, we are certainly no experts or no more expert
than MSPB is with regard to those issues. Our expertise lies in the
civil rights arena.

But the question is whether it is as big a problem. I think what
I pointed out was that there are so few of these cases that we are—
we are trying to fix a system with regard to one aspect of it that
I am not sure is really empirically such a big problem. Because,
you know, we start off with 65,000 complaints, at least contacts, at
Federal agencies and that’s reduced by two-thirds to some 20,000
actual complaints, and then that’s reduced further and further.

So when we get to the end of this process where we have mixed
cases, it is really, as I said, 2 percent of the cases that we handle.

Mr. Mica. You also seem to indicate that you didn’t think fre-
quent filers was a problem, and you described a consolidation and
dismissal mechanism that EEOC uses to deal with the frequent fil-
ers. Could you tell us a little bit more about that consolidation and
dismissal mechanism, as I think you term it?

Mr. CaSELLas. Well, I think in the case of an individual, we had
individuals who have—it used to be the case that—we are operat-
ing on a lot of old information. It used to be the case where you
had individuals that would file up to 30 complaints and continue
to do that. There are fewer and fewer—in fact, I don’t think there
are any that are in the teens. There may be a handful of them that
file five or six and those get thrown out very early on.

The same thing with the administrative complaints. The admin-
istrative judges can essentially rule from the bench, so there’s no
delay, there’s no additional cost because the administrative judge
just simply says, you are out of here.

ain, I am not sure.

ir. Mica, Do you think there’s adequate authority to deal with
these situations?

Mr. CASELLAS. Yes.

Mr. Mica. I heard that there was one EEOC employee who filed
hundreds of complaints of discrimination against EEOC. Is that
correct?

Mr. CASELLAS. That might have been under a previous chairman.
I will tell you that in the 13 months that I have been there, the
number of EEOC complaints has dropped significantly. We are now
68 percent of what it was a year ago, and 25 percent of the cases
fewer than were Bending a year ago, and we are looking at an in-
ternal ADR. So that our percentage of those kinds of things are


222

issues. There is great confusion about these different avenues of redress, including separate
procedures, differing time limits for filing, and limited jurisdictions for review of the same
set of facts. Federal agencies, employees, and unions can initiate or defend the same
disciplinary action, reduction in force or performance evaluation in different forums over

many years.

In response to agency requests for assistance, NAPA facilitated in the past year a
number of sessions including line agency, union, and third party representatives. The NAPA-
sponsored "Jurisdictional Overlap Forum", held in April of this year, is one example. The

conclusions drawn from these meetings are:

1. Jurisdictional overlap continues to be perceived as a problem.

2, Timely, fair, and final decisions are perceived as problems in the current
system.

3. Remedies are inconsistent among the various forums.

4. The system should not focus on non-substantive issues.

5. All the stakeholders, i.e. the adjudicatory bodies, the agencies, and employee

Tepresentatives, must be involved in developing the solution.

Managers, employees, and unions are concerned about the issue of multiple and
overlapping jurisdictions and procedures. At a minimum, it is perceived that there are
enormous costs associated with pursuing a claim in all these forums, in terms of dollars,

morale, and time. Managers are responsible for supervising the work force, but they find it


aye Was. ington Post

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155

a
ae

Ranerat Iasi tes of Hea"
Bermesce Maryianc 20892

AUG 1 1 1993 ya os is

to: Ruth L. Rirscbstein, ¥.D.
Acting Director, NIB

FROM: Sentor Policy Advisor and Counselor to the Director,
NIH, and Co-Chair of the NIH Task Force on Fairness in
mploynent Practices

SUBJECT: Open Forum on Reprisal and Retaliation---INPORMATION

The NIH Task Force on Fairn@ss in Employment Practices held two
sessions onAugust 10, 1993 to obtain the comments and
perspectives of the NIH community on issues related to reprisal
and revaliation. The following gives hoth background and a
preliminary summary of comments made in those sessions.

BACKGROUND

In May 1993, Or. Bernadine Healy, former NIH Director,
established the NIH Task Force on Fairness in Employment
Practices specifically to respond to allegations of widespread
race discrimination, nepotism and favoritism at the agency. The
Task Force was given a seven-part mandate to assess the extent to
which employment and advancement at NIH are affected by race
discrimination, nepotism or favoritism; to evaluate policies and
procedures at the NIH to address allegations and complaints of
race discrimination and NIH's progress in integrating minorities
into all levels of employment and management; to address reprisal
and retaliation problems that also appear to be a serious concern
at the NIH; and to recommend to NIH leadership solutions to these
problems. (See Attachment A for the complete mandate). The Task
Force is composed of a broad cross-section of NIH loyees. It
is representative of senior management as wel: as mid and entry
level professional and support staff and is diversified along
racial, ethnic and gender lines. (See Attachment B for a
complete list of Task Force members). Members were appointed not.
to represent particular organizational components of the NIH, but
for their personal perspectives and insights.

The Task Force made as its highest priority the assessment of
ways in which persons filing informal or formal complaints of
race discrimination could be adequately protected from reprisal
or retaliation. To assist in that assessment, the Task Force
believed that the perspectives of the NIH community should be
obtained through structured sessions both of an open and clos‘
nature.



CONTENTS

Hearing held on November 29, 1995
Statement of:

Bowling, Timothy, Associate Director, U.S. General Accounting Offic
Heuerman, Associate Director, Office of Personnel

enjamin, chairman, Merit Systems Protection Board, accom-
eth Stavet, vice chair; and Tony Amador, board member;
i |, chair, Federal Labor Relations ‘Authority, ssesompanied
by Joseph ‘Swerdzewski, general counsel; Betty Bolden, chair,
Service Impasses Panel; ‘ony ‘Armendariz; Donald Wasserman; Kath-
leen Day h, Special ‘Counsel, Office of pecial Counsel; and Gilbert
s, chairman, Equal Employment Opportunity ‘Employment
Commission
Levinson, Dani irman, ys ction
Llewellyn M. Fischer, fo former general counsel, lerit “Systems Protection
Board; G. Jerry Shaw, general counsel, Senior Executives Association;
()

and Clinton cot, assistant counsel, National Treasury Employees
inion...
Letters, statemet for the reco1

i
Bass, Hon, Charles F.. a Representative in Congress from the State
of New Hampshire, prepared statement of ..
Bowling, Timothy, Associate Director, U.S.
prepared statement of ...
Casellas, Gilbert F., chairman,
ment Commission, » Prepared ‘statement o
Erdreich, Benjamin, chairman, Merit Syste:
Information concerning postal cases ..
Information concerning retirement ap)
Information conce:
Fisch ared seen of
er, Llewellyn fo
Board, prepared statement o
Fosler, R. Scott, president, N:
prepared statement of
Games, David, presider
United States, prepared statement of
Heuerman, Allan, Associate Director,
prepared statement of
Koch, Kathleen Day, Special Cour
statement of
Levinson, Daniel R., former chairman, Merit S;
prepared ‘statement of ...
Mica, Hon. John. L., a Representative in Congress from the St
Florida, charts reflecting FLRA’s workload
Moran, Hon. James P., a Representative in Congress from the State
irginia, prepared statement of
wie From ie d statement of ...
fs par chair, Federal Labor Relations Authority, prepared state-
ee of

Shaw, G. Jerry, general counsel, Senior Executives Association, prepared
statement of one

«ub

162

216


145

MSPB PUTS CUSTOMERS FIRST

The U.S. Merit Systems Protection Board (MSPB) is delivering on promises to improve
service to its customers--Federal employees, employing agencies, and the public. MSPB
Chairman Ben L. Erdreich said the agency is providing more responsive service despite a 16%
reduction in workforce and a 40% increase in workload since 1993. Erdreich cited improvements
in several areas of MSPB operations.

‘© The Board’s customer service standards pledge that initial decisions on appeals of
agency actions will be issued within 120 days of receipt and that review by the three-
member Board will be completed within 110 days in most cases.

— InFY 1995, the MSPB issued initial decisions in 96 days on average.

= Headquarters decisions also issued within 96 days, an historic performance.

— This means that the total time from filing an appeal to final decision after full review is
just over six months.

« = The Board fa

tates settlement of disputes.

— InFY 1995, 47 percent of initial appeals not dismissed on jurisdictional or timeliness
grounds were settled, avoiding costly and unnecessary litigation and fostering the fair
and speedy resolution of issues. The Board expanded its settlement program to apply
alternative dispute resolution procedures to cases pending before the full Board.

© The Board processes appeals in a fair and objective manner.

= Typically, 80% of appellants accept the initial decision of the MSPB. Only 20% of
initial decisions are appealed to the full Board for review.

~  InFY 1995, of the decisions of the MSPB appealed to the U.S. Court of Appeals for
the Federal Circuit, the Board's primary reviewing court, the MSPB decision was left
unchanged in 94% of the cases.

‘The Board provides simple procedures.

— The Board extended the deadline for filing appeals, allowing employees 10 more days
to file appeals in most cases.

~ Anappellant may correct a late-filed petition for review by filling out a simple form

— Appellants may now file appeals by commercial overnight delivery service.

- The Board abolished almost 175 pages of unnecessary internal manuals.


106

Mr. Mica. I would like to recognize now the chairman of the
Equal Employment Opportunity Commission, Mr. Gilbert Casellas.
ir. Casellas, first of all, I want to tell you that I have never been

to Hooter’s, but I sure am hearing from a lot of folks who are their
clients. I just wanted to let you know that we are hearing a lot
from those folks, not that we are going to get into that subject at

Mr. Moran. You just did.

Mr. Mica. I thought you might like to know what Members of
Congress are hearing about on another subject.

| kidding aside, we do welcome you and recognize you now for
your testimony.

Mr. CASELLAS. Thank you, Mr. Chairman, members of the sub-
committee. I would like to request that my full statement be made
part of the record.

Mr. Mica. Without objection, so ordered.

Mr. CASELLAS. Let me just say at the outset that all of my train-
ing as a lawyer for nearly 20 years, as well as what my counsel
tell me now at the EEOC, precludes me by law from either com-
menting on the existence or nonexistence of any investigations, as
tempting as it might be to take a cheap shot against the many
cheap shots that I have received. So I will leave it at that, and
please don’t construe this as a comment one way or the other on
the existence or nonexistence of any investigation.

Mr. Mica. Thank you very much. We recognize your good sense
of impartiality. you.

Mr. CASELLAS. I certainly believe, as do the—and with the
members of this panel that, consistent with the goals of the Na-
tional Performance Review, it’s fully appropriate to review Federal
Government civil service and employee complaint processes to de-
termine where streamlining and improvement can be accomplished.

However, insofar as this review addresses the EEOC’s role in the
Federal appeals processes, it is also my view that it must also be
guided by the principle that safeguarding civil rights of Federal
employees is of paramount value. Unlike anyone else who is testify-
ing here today, we are the only civil rights agency testifying today,
and what we do is fundamentally different. There is an intersection
between civil rights and personnel law, but it is a limited and a

controlled intersection. Our jurisdiction is based on laws, civil
rights laws, that apply both to the private sector and to the Federal
sector.

The unfortunate reality is that discrimination and the problems
of unequal opportunity persist in the Federal Government and the
current work force statistics on this are instructive. They reveal
that minorities and women continue to be concentrated at the
lower grade levels of Federal employment and that their represen-
tation falls as grade level rises. In Federal white collar employment
generally, whites continue to hold jobs that average one and two
grades higher than those held by minorities. This is instructive be-
cause unlike the private sector where most of the complaints relate
to discharge, in the Federal sector most of them relate to pro-
motions and to terms and conditions.

While I don’t suggest that every one of the cases filed or every
one of the statistical disparities connotes illegal discrimination, I


66

APPENDIX C
Special Panel

During Fiscal Year 1986 the Special Panel
issued its first rwo decisions:

Ignacio v. U.S. Postal Service (Februsty 27, 1986).
In a split decision, the Special Panel held that
Federal agencies must consider reassignment as
reasonable accommodation for physically
handicapped employees prior to taking &
removal action. The majority held that the
decision of the EEOC, requiring consideration
of reassignment prior to removal, is reasonable

and consistent with the Rehabilitation Act. The
maj set forth its view of the Panel's.
jurisdiction in reviewing cases certified to it.

Lynch». Dipariment of Education (Aug 22,
1986).

ate he Special Panel in a split decision adopted
opinion that removal of a
bebe ‘employee was lawful because the
agency had artempted to accommodate the
employee's handicap and the medication used to
bi ‘The majority of the Panel held that the
‘was not required to provide training to
the employee as an accommodation where there
‘was no indication that training would improve
the employee's performance.



52

Thank you, Mr. Chairman, and members of the subcommittee;
and I would be glad to answer questions.

Mr. Mica. I thank you for your testimony, and we will withhold
questions until we finish the Panel.

[The prepared statement of Mr. Erdreich follows:]


173

Office of Special Counsel as a separate agency than there is for making the
General Counsels of the NLRB and FLRA independent agencies. In each
case, those offices prosecute complaints involving violations of law to the
agencies they serve just as the Special Counsel does before the MSPB.

The confusion becomes even greater when the processes administered
by these different agencies overlap. For example, under current law when the
MSPB decides an appeal involving an issue of discrimination, the employee
may bring the matter to the EEOC. If the EEOC disagrees with the MSPB,
the matter is referred back to the latter agency for reconsideration. If the
MSPB disagrees with the EEOC, the case is then referred to a "special panel"
composed of a Presidentially-appointed Chairman and two members
designated by the MSPB and EEOC. Affer all of that, any decision may still
be reviewed in court.2- On occasion, this process has resulted in years of
delay in reaching a final decision in a controversy.

Under the grievance procedures administered by the FLRA, an
aggrieved employee affected by a "prohibited personnel practice" which also
falls under the coverage of the negotiated grievance procedure, may raise the
matter either under a statutory procedure or the negotiated grievance
procedure. The employee is deemed to have exercised that option by filing
under one procedure or the other. However, selection of the negotiated
procedure does not prevent an aggrieved employee from requesting MSPB
review of a final decision involving a personnel action that could have been
appealed to the Board. Nor does selection of the negotiated procedure
prevent an aggrieved employee from requesting EEOC review of a final
decision involving prohibited discrimination administered by the EEOC.3

Understandably, these statutory provisions are unfathomable to anyone
who is not an expert in civil service law. Moreover, each agency--the OPM,
MSPB, OSC, FLRA, and EEOC--has its own set of regulations and
instructions concerning these dispute resolution processes with different time
frames and different results depending on how an appeal is raised. Each
agency becomes its own fiefdom with a tendency to isolate itself in its own
program, policies and procedures. Despite the best efforts of agen.

2 SUSC. 7702.
35 US.C. 7121(d).


101

STATEMENT OF THE HONORABLE KATHLEEN DAY KOCH
SPECIAL COUNSEL
U.S. OFFICE OF SPECIAL COUNSEL

BEFORE THE CIVIL SERVICE SUBCOMMITTEE OF THE
GOVERNMENT REFORM AND OVERSIGHT COMMITTEE

NOVEMBER 16, 1995

MR. CHAIRMAN, AND MEMBERS OF THE SUBCOMMITTEE:

1 WELCOME THIS OPPORTUNITY TO PARTICIPATE IN THESE
HEARINGS FOCUSING ON POSSIBLE CHANGES IN THE CIVIL SERVICE
DISPUTE RESOLUTION SYSTEM. MR. CHAIRMAN, YOU MAY RECALL THAT
WHEN WE MET AT THE START OF THIS CONGRESS, | OFFERED MY
ASSISTANCE AS YOU ASSUMED THE LEADERSHIP OF THIS COMMITTEE. I
REPEAT THAT OFFER AND J AM WILLING TO RESPOND TO ANY QUESTIONS
THAT YOU MAY HAVE.

MR. CHAIRMAN, | HAVE SPENT MY ENTIRE LEGAL CAREER IN
PUBLIC SERVICE, IN FACT. | WORKED AT THE FEDERAL LABOR
RELATIONS AUTHORITY (FLRA) AS GENERAL COUNSEL, AND THE MERIT
SYSTEMS PROTECTION BOARD (MSPB) AS A STAFF ATTORNEY. MY
EXPERIENCE IN THE FEDERAL GOVERNMENT HAS PROVIDED ME WITH A
SOLID UNDERSTANDING OF THE OPERATION AND FUNCTION OF THE CIVIL
SERVICE SYSTEM, AND I AM HAPPY TO SHARE MY INSIGHTS WITH YOU.

THE FUNCTION OF OSC

MR. CHAIRMAN. LET ME BEGIN BY DISCUSSING MY AGENCY, THE
OFFICE OF SPECIAL COUNSEL (OSC). THE OSC IS AN INDEPENDENT
AGENCY WHOSE PRIMARY MISSION IS TO PROTECT FEDERAL EMPLOYEES.
FORMER EMPLOYEES AND APPLICANTS FOR EMPLOYMENT FROM
PROHIBITED PERSONNEL PRACTICES. THE OSC HAS THE DUTY TO
INVESTIGATE. AND WHEN APPROPRJATE PROSECUTE ALLEGATIONS OF


26

we are not in a position to judge the legitimacy of these
complaints. We note, however, that EEOC's rulings on the
complainants’ appeals affirmed the agency's position that there

‘was no discrimination. We would also make the point that federal

officials spent their time--and the taxpayers’ money--on these

cases.

inhibiting Managers and Encouraging Settlements

At the employing agency level, the prospect of having to deal
with lengthy and complex procedures can affect the willingness of
managers to deal with conduct and performance issues. In 1991,
we reported that over 40 percent of personnel officials,
managers, and supervisors interviewed said that the potential for
an employee using the appeal or arbitration process would affect

a manager's or supervisor's willingness to pursue a performance

action.

At the adjudicatory agency level, one effect of complex and time-
consuming redress procedures has been to spur the trend toward
settlements. About two-thirds of the adverse action and poor
performance cases at MSPB were settled in 1994 instead of being
decided on their merits. Similarly, during the same period,

about one-third of the discrimination complaints brought before

With Poor Performers? (GAO/GGD-91-7, October 1990).
14


228

only forum available to them for appealing serious adverse actions to an independent, extemal
body. Such adverse actions include removals, reduction in pay or grade, or suspensions over
14 days. When a postmaster has a case before the Board, it generally involves some
disciplinary action rather than poor performance. The postmaster may face a serious charge,
such as misuse of postal funds, which would result in loss of his or her job. Clearly, these
are cases where the due process rights of the employee are vital. Therefore, NAPUS wants
to take this opportunity to support the continuation of postmasters' access to the MSPB.
process.

Prior to the Postal Reorganization Act of 1970 (PL 91-375), postmasters could appeal
an adverse personnel action through the Civil Service Commission (now replaced by the
Office of Personnel Management). NAPUS supported the Postal Reorganization Act. That
‘support was based on assurances from the Postmaster General of that time, William Blount,
that postmasters would preserve the rights they enjoyed under the old post office department,
including the right for a fair hearing on adverse actions. The legislation which gave
postmasters and postal supervisors MSPB rights enjoyed wide popularity on both sides of the
aisle and was endorsed by all Members of the Post Office and Civil Service Subcommittee.
In fact, we note that two current Members of the Civil Service Subcommittee, Rep. Ben
Gilman and Rep. Dan Burton, endorsed the bill when it was being debated in the 99th and
100th Congress. President Reagan signed PL. 100-90 granting MSPB rights to postmasters
and supervisors into law in 1987.

Extending MSPB rights to all postmasters and supervisors provided equity to non-
veterans, primarily women in the postal workforce. Most fernale USPS management


22

Table 2:—Increase_in_Discrimination Complaints, F¥s_1991 to 1994

Percent
Fy 1991 | Fy 1994 | increase

Complaints filed with

employing agencies 17,696 | 24,592 39.0
Requests for EEOC
hearing* 8.773 | 10,712 85.6
Appeals to EEOC of
agency final decisions 4,167 5,925 42.2

Pcneze caseload da

include mixed case apeals to “S73

Source: EEOC.
IMPLICATIONS OF THE FOCUS ON EMPLOYEE RIGHTS

One reason Congress placed employee redress responsibilities in
several independent agencies was to ensure that each federal
employee's appeal, depending on the specifics of the case, would
be heard by officials with the broadest experience and expertise
in the area. In its emphasis on fairness to all employees,
however, the redress system may be allowing some employees to
abuse its processes and may be creating an atmosphere in which

managing the federal workforce is unnecessarily difficult.

As things stand today, federal workers have substantially greater
employment protections than do private sector employees. While
most large or medium-size companies have multistep administrative
procedures through which their employees can appeal adverse
actions, these workers cannot, in general, appeal the outcome to

an independent agency. Compared with federal employees, their

10


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162

Mr. Mica. We have a vote with just a few minutes left in the
vote.

We will take a recess for 15 minutes. I will call the next panel
at that time, and excuse these witnesses, and we will recess the
subcommittee until that time.

cess.

Mr. Mica. I would like to call the subcommittee back to order
and ask our witnesses in the last panel if you could come forward.

In our last panel we have Mr. Daniel Levinson, former chairman
of the Merit Systems Protection Board. We have Llewellyn M.
Fischer, former general counsel, Merit Systems Protection Board;
we have Jerry Shaw, general counsel of the Senior Executives As-
sociation; and Clinton Wolcott, assistant counsel of the National
Treasury Employees Union.

I would like to welcome our panelists to this third panel. We
have just heard from the status quo. Now we get to hear from some
of the Monday morning quarterback team. I would like to welcome
our panelists.

As you know, it is customary that we swear in our panels and
witnesses. If you stand and raise your right hand.

[Witnesses sworn.]

Mr. Mica. The witnesses answered in the affirmative.

I would like to welcome each of you. Thank you for your patience.
We have a long hearing today but an important one, and I think
you can provide some good insight.

We will call first on Daniel Levinson, former chairman of the
Merit Systems Protection Board, for his testimony, and, as I men-
tioned to our other witnesses today, if you have lengthy testimony
it will be made part of the record, and if you would like to summa-
rize, fine. We welcome each of you, and will proceed with Mr.

vinson.

STATEMENTS OF DANIEL R. LEVINSON, FORMER CHAIRMAN,
MERIT SYSTEMS PROTECTION BOARD; LLEWELLYN M.
FISCHER, FORMER GENERAL COUNSEL, MERIT SYSTEMS
PROTECTION BOARD; G. JERRY SHAW, GENERAL COUNSEL,
SENIOR EXECUTIVES ASSOCIATION; AND CLINTON WOL-
COTT, ASSISTANT COUNSEL, NATIONAL TREASURY EMPLOY-
EES UNION

Mr. LEVINSON. Thank you very much, Mr. Chairman.

I would like to begin by noting that I am accustomed to bein;
something of a Monday morning quarterback, because I am a grad-
uate of the University of Southern California. USC gets plenty of
opportunity to play in the big league football games, and we spend
a lot of our time during the week doing exactly that.

Mr. Mica. I am a former graduate of the University of Florida,
so we are feeling our oats as well.

Mr. LEVINSON. See you January 1.

I would like to make my written statement a part of the
record—

Mr. Mica. Without objection.
Mr. LEVINSON [continuing]. And make additional comments that
would be supplementary to that written statement.


165

Statement of
Daniel R. Levinson,
former Chairman, Merit Systems Protection Board
Before the
Subcommittee on Civil Service of the
Committee on Government Reform and Oversight
U. S. House of Representatives

November 29, 1995.


169

Mr. Mica. Thank you for your testimony.

We will turn to Mr. Fischer now, who is the former general coun-
sel of the Merit Systems Protection Board.

Mr. FiscHer. Thank you, Mr. Chairman.

I would like to have my written remarks submitted for the
record.

Mr. Mica. Without objection, so ordered.

Mr. FISCHER. With that, I will abbreviate greatly what I said to
you in my written statement. I do appreciate the opportunity to ap-
pear before you on this important issue of streamlining the Federal
appeals process.

ip until July of this year, I was the general counsel at the Merit
Systems Protection Board, and I served in that capacity for 9 years.
Before that, I was an associate general counsel at the Office of Per-
sonnel Management, and before that I began my career with the
Civil Service Commission as an investigator in 1966.

I worked in field offices on the west coast as an investigator and
staffing specialist for the Commission, and then I came to Wash-
ington in 1973 as an attorney for the Civil Service Commission,
and my entire career was spent with either the Civil Service Com-
mission or successors of the MSPB and OPM.

The most dramatic thing that happened during my 29 years of
civilian service was the Civil Service Reform Act, and this was a
revolutionary type of change because the Civil Service Commission
before that had been the single authority for personnel matters,
both management policy and employee protection processes, in the
executive branch.

In the 1970’s, this was perceived as being seriously defective, be-
cause it was felt that one agency couldn’t serve as the management
arm of the executive branch and still appropriately protect and
vigilantly protect employee rights.

in its place, in 1978 Congress created what eventually became
five different agencies: MSPB, FLRA, EEOC, and the Office of Spe-
cial Counsel. Although the Special Counsel for a few years was
part of the MSPB and, like the FLRA general counsel, prosecuted
complaints before the MSPB, there was a dispute that arose about
budget resources, and the Special Counsel was split off and made
a separate agency.

There certainly is—and I echo the witnesses that have told you
this—there certainly is a complicated, arcane sort of structure at
work here, and with five separate agencies administering these dif-
ferent processes, what this creates, it creates problems both for the
employees who are seeking a remedy and don’t know whether to
go to the OPM, MSPB, F EEOC, or Special Counsel, but it
also creates all sorts of confusion for managers and supervisors.

They get into difficulties because they are no longer just respon-
sible to their agency for what they do, all these outside agencies
now have an effect and a voice in the discipline they take or the
action that they take against poor performers.

In light of the difficulties that ey face with these processes, it
is not really that surprising that supervisors and managers are
often reluctant to take action against problem employees or poor
performers, and in this era of customer-friendly services it seems


34

to hear. This anomalous power of a judicial body to review and sub-
stitute its judgment for that of the person chosen by the President
to administer and oversee civil service has made it more difficult
for OPM to secure uniform interpretation of the law.

We have used our power to seek judicial review of MSPB and ar-
bitrable decisions sparingly, never more than a dozen to 15 times
a year, even though there are close to 10,000 decisions each year
by MSPB and arbitrators.

Eliminating the discretion of the Court of Appeals to hear a peti-
tion by the Director should not result in more petitions by the Di
rector. Rather, we believe this would lead to more effective admin-
istration of civil service laws and that in the long run the existence
of effective use of this power creates less, and not more, litigation.

In conclusion, we emphasize that any changes to the current ap-
peals system or the appeals agencies should reflect the need to

ve the most efficient and effective merit-based government pos-
sible while at the same time ensuring that the rights of individuals
are preserved. OPM stands ready to assist you in any way you
think would be useful.

We thank you for this opportunity, and I will be glad to answer
any questions.

[The prepared statement of Mr. Heuerman follows:]



175

role and would be transferred to a new agency with consolidated adjudication
and enforcement authority.

The new, independent agency--which for convenience of reference
might be known as the Federal Employee Relations Board (FERB)--would be
composed of three members and a General Counsel appointed by the
President with the advice and consent of the Senate. Its major responsibilities
would include:

(1) MSPB's adjudicative functions, including those of deciding the
appeals of Federal employees and its program to study and report on civil
service and merit systems;

(2) EEOC's jurisdiction over discrimination laws covering Federal
employees and its oversight responsibilities for Federal agency EEO
programs;

(3) FLRA's authority over labor-management disputes in the Federal
sector; the Federal Service Impasses Panel's authority over negotiation
impasses as well as the Foreign Service Relations Board and the Foreign
Service Impasse Disputes Panel's jurisdiction over the labor-management
relations program for Foreign Service employees;

(4) OSC's authority to investigate and prosecute prohibited personnel
practices, including reprisal for whistleblowing, prohibited political activities
(“Hatch Act” violations) and violations of other civil service laws; and

(5) OPM's authority to decide position classification appeals.

Creation of an agency such as the FERB would resolve some of the
fundamental problems that exist in the present system administered by five
different agencies. One entity would be created that would be fully
accountable whether a dispute is raised as an adverse action, an unfair labor
practice, or prohibited discrimination. Building on the lessons leamed from
the CSRA, this structure retains the independence and separation of those
acting as judge, prosecutor, or analyst from those creating and implementing
Management policies. Simplification and consolidation of the five programs
will improve the effectiveness of the process, increase efficiency, and reduce
budget expenditures.


231

Mr. Mica. I want to thank you for your cooperation. We are look-
ing at proposed changes very carefully as we review the entire civil
service reform issues.

My timing couldn’t be much better than this—the bells are ring-
ing. I want to thank you for your participation and look forward
to working with you.

If there is no further business to come before the subcommittee
this morning, I declare the meeting adjourned.

you.
Mr. SHaw. Thank you, Mr. Chairman.
(Whereupon, at 12:55 p.m., the subcommittee was adjourned.]

[e)


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COMPARATIVE @TUDY OF COMPLAINTS AND CHARGES OF DISCRIMINATION

194

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225

‘employees, agencies, and unions. Doing this may send one of the strongest signals that the
government is serious about its intent to improve the management of its most valuable asset:

federal employees.


136

tions. Section 7116(d) of our statute, that’s in 5 U.S. Code and sec-
tion 7121, take us out of the Chapter 43/75 arena. Outside of that,
there are two narrow situations, only one of which has resulted in
any cases that I am aware of, and that has to do with individual
employees raising Protected class discrimination claims, such as a
Title VII claim, and electing to do so through a negotiated-—a nego-
tiated grievance procedure. If at the end of the first stage of the
grievance, their union chooses to seek arbitration, there are some
such cases which will then, after arbitration, be appealed to us, ex-
ceptions taken to the arbitration awards. Because those cases in-
volve protected class discrimination, there is the potential for a se-
quential review by the EEOC. This category of cases accounts for
less than papergent of our case workload, and since our cases are
less than half of our agency workload, it really is very de minimis
in proportion to what we do.

thairman Casellas reported from his records that, I believe,
there were four such cases in the past 2 years where decisions by
the Authority on protected class discrimination, arbitration excep-
tions, were subsequently appealed to the EEOC.

The second limited opportunity has to do with our unfair labor
practices. There are occasions where the same personnel action
might give rise to a prohibited personnel practice action brought to
the Office of Special Counsel adjudicated by the MSPB and be-
cause, for example, it also involved what’s claimed to be a unilat-
eral change in working conditions, it might raise a bargaining issue
which then gets fashioned as an unfair labor practice charge filed
with our Office of General Counsel.

I am not aware of cases where that has happened. That’s another
narrow potential exception. Obviously, in the example I have illus-
trated, one deals with an individual issue and the other is an insti-
tutional issue and it really illustrates the extent to which our agen-
cy focuses on the institutional relationships between unions and
agencies.

Mr. Mica. Well, I thank you for your comments.

I may have additional questions for all of the witnesses, and be-
cause our time is running out, we would like to submit them in
writing and ask you to respond. We also look forward to working
with you. You are all leaders in your own right and very important
areas of this process, and I really don’t have any fixed opinion on
what should be done. We are trying to find out what improvements
can be made using the criteria that I set forth and also the impor-
tant criteria that Ms. Segal established for us, that we look at the
cost effectiveness of the process, and to make it work the way it
should work and make it respond the way it should respond.

So we will look forward to working with you in that regard.

I will excuse the panel. Thank you for your outstanding testi-
mony today and cooperation.

(The information referred to follows:]


177

and not subject to court review except that complainants with discrimination
claims could go to a US. district court for trial de novo in the same manner as
under existing law.

The initial reorganization step in the consolidation process would be to
put all the processes into a single agency under one administrative and
policymaking umbrella. To prevent major staff dislocation and disruptions,
the programs could continue to operate in their own sphere on a transitional
basis using existing staff and procedures. Then, with cross-training of
adjudicators and support staff, steps could be taken to consolidate the
processes and make them more uniform. Eventually, uniform time limits and
filing procedures could be established with a single ALJ or presiding official
hearing and deciding MSPB-type appeals, discrimination complaints, or labor
controversies. This is not an unprecedented or novel notion. Before the
CSRA, appeals officers at the Civil Service Commission heard and decided
matters involving discrimination complaints as well as personnel action
appeals. Other civil service hearing officers, such as those of the
Employment Relations Board of the State of Oregon, hear and decide both
labor relations controversies and appeals from personnel actions. Having a
single ALJ or hearing officer in an agency decide all employment-related
controversies under simplified and more uniform procedures would be a
workable and cost efficient way to streamline the current cumbersome and
overlapping processes.

It bears emphasis that critical comments conceming the present system
are not intended as criticism of the present leadership and staff of the
agencies involved. Despite the fragmentation of authority over processes and
the sometimes convoluted statutory structure, the heads of the agencies and
their staff have been instrumental in making a complex system work as
efficiently as possible. In the 1980's, the Chairman of the EEOC, Clarence
Thomas (now Justice Thomas) convened inter-agency study groups to foster
cooperation and understanding between the agencies responsible for federal
employee dispute resolution. That effort led to an annual federal dispute
resolution conference under the leadership of the EEOC which has assisted
agency heads and their staff in determining how their particular policies
interrelate with those of other agencies. And, in this context, agency heads
and staff continue to participate in annual conferences to make their processes
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112

This experience shows that the system works as Congress intended. These shared
appellate responsibilities have not multiplied the forums available to federal employees, but
have created complimentary processes that the agencies have handled well. Importantly,
EEOC closed 17,185 appeals during the period 1993-1995; however, only four cases were on
appeal from FLRA decisions' and 521 were on appeal from MSPB decisions. EEOC’s
regulations for processing these federal complaints of discrimination are set forth in Title 29
C.F.R. Part 1614. I have included, as an attachment to my statement for the record, a
summary of the current federal EEO complaint process, including the procedures for mixed
case complaints and grievances.

Third, the concerns that federal employees routinely file discrimination complaints to
frustrate or avoid performance-based actions against them are not borne out by EEOC or
MSPB data. While the agencies and EEOC cannot determine anyone's subjective motive in
filing a charge or failing to take a personnel action, the limited information we have available
does not support the concern.

In particular, it is useful to examine the resolution of performance-related complaints
that raise discrimination in evaluations and appraisals. In fiscal year 1995, EEOC received
8,152 appeals of agency decisions on discrimination complaints. Less than six percent of
those appeals contained allegations related to an evaluation or appraisal. If employees were
routinely filing frivolous complaints to thwart performance-based actions, we would expect
that the percentage of the appeals found to have merit in performance-related cases would be
less than the percentage of all complaints found to have merit. We found, however, that the
percent of appeals involving appraisals or evaluations resulting in discrimination findings is
nearly identical to the percentage of all appeals to have merit.

Fourth, EEOC’s data do not support the concerns of those who believe that employees
are flooding agencies with multiple appeals. Congress enacted the CSRA in part to address
problems of multiple and duplicative avenues of relief that existed prior to 1979. The
procedures established by the CSRA require employees to elect one forum when more than
one forum is available. The Act ensures that agencies with dual responsibility for
adjudicating federal employee personnel complaints have non-duplicative, but interrelated
responsibilities and authority.

Finally, there is no data to support the argument that there is a significant problem
caused by employees who flood the system with multiple discrimination complaints. The
EEOC addresses such "frequent filers” through consolidation and dismissal mechanisms that
are already part of the complaints processing procedures.

While I believe that many of the concerns that have been articulated are based more
‘on “conventional wisdom” than a careful analysis of the problem, I do believe that it is

EEOC dismissed one appeal because it lacked jurisdiction and another appeal due to timeliness issues.

4


16

it’s important to recognize that the FLRA’s focus is on the Federal
workplace disputes and institutional relationships.

Federal employee appeals account for a relatively small percent-
age of the types of disputes we resolve. Examples of others are rep-
resentation unit determinations, bargaining disputes, and alleged
unfair labor practices involving institutional issues, such as the
work environment of Federal employees.

In short, the matters we address are different in several respects
from the matters addressed by the other agencies on this panel,
and that’s evident in the jurisdictional boundaries. First, there are
only two limited opportunities for any jurisdictional overlap be-
tween these agencies, and you can count on one hand the number
of times overlap has actually occurred in the past several years.

Second, with respect to the subcommittee’s express concern with
so-called “poor performers,” most of the disputes addressed by the
FLRA do not address performance issues. None involve perform-
ance-based actions arising under Chapter 43 and Chapter 75.

And third, with respect to the limited potential for overlapping
conflict, there are already a number of mechanisms in place to deal
with those, including some fairly specific and directive statutory
provisions.

My point is not that our systems and structures can’t be made
better and my point is not that there isn’t confusion. I just think
it’s important that we be guided by a factual understanding of
some of the crucial distinctions between what the different agencies
address.

My third point is that it’s—talking about the costs of any type
of reform is very important and even significant costs may well be
worth expending, if they produce great benefits. But even minimal
costs aren’t worth it if they produce no benefits at all. I believe
that—I agree completely with Chairman Mica’s opening comments
to these hearings that the objective is not to make things different
but to make things better.

A few comments on the types of costs that I would urge be con-
sidered in this whole discussion.

First are the costs of transition. The costs of any structural re-
form will include transitional disruption, and the costs associated
with disrupting the work of third party dispute resolvers will be
higher, and perhaps at its highest when the rest of government it-
self experiences reorganization-related disputes. To paraphrase an
exchange at one of the earlier hearings, one witness said, “An in-
jured physician is not in any shape to conduct an operation.”

An additional cost to consider relates to the design of a new
structure. If the design contemplates breaking apart the consolida-
tion that already exists in the Federal Labor Relations Authority,
it will carry its own distinct cost, its own distinct questions, includ-
ing the division of responsibility over representation areas, which
are now handled in an integrated way, and including, most impor-
tant—and I think this will be of interest to the committee because
of the prior questions it raised, we operate with an agency-wide
emphasis on alternative dispute resolution, introducing collabo-
rative approaches to resolving workplace problems, frankly, before
they become cases.


IN_SEARCH OF ALTERNATIVES

At a time when Congress and the administration are considering
opportunities for civil service reform, looking in particular to
the private sector and elsewhere for alternatives to current
civil service practices, organizations outside the executive

branch of the federal government may be useful sources for ideas

on reforming the administrative redress system.

In most private sector organizations, final authority for
decisions involving disciplinary actions rests with the president
or chief executive officer. Some firms give that authority to
the personnel or employee relations manager. But others have
turned to some form of alternative dispute resolution (ADR),
especially in discrimination complaints.'* Some firms use
outside arbitrators or company ombudsmen. Still others employ
committees or boards made up of employee representatives and/or
supervisors to review or decide such actions. We have not
studied the effectiveness of these private sector practices, but
they may provide insight for dealing with redress issues in a
fair but less rigidly legalistic fashion than that of the federal

redress system.

“For a discussion of ADR methods private sector employers use,
see our report iscri A =Sect

(GAO/HEHS-95-150,
July 1995).

16


94

FLRA, through its three independent components, the OGC, the Authority and the
Federal Services Impasses Panel, has developed working arrangements to meet the
needs of these institutions. Despite our independent functions, the reality is that
all three components can and do work together. While each component cannot
interfere in the others’ decision-making, the components have developed working
arrangements to make certain that the parties using the services of the FLRA are
treated appropriately. This coordination helps assure that all possible aspects of a
labor dispute are processed as expeditiously as possible. If these functions were
separate, it could lead to a loss of this coordination which could interfere with the
orderly processing of cases. Any approach to merging the various dispute agencies
should take into account the statutory rights of the institutions and individuals they
are there to protect, and the value of maintaining a coordinated approach to the
regulation of these rights.

CONCLUSION

Mr. Chairman, this concludes my written remarks. Thank you for the
opportunity to provide them. | and my colleagues look forward to working with
you and the Members of the Committee and | am pleased to answer any questions
you may have.


9

One result of this sort of a jurisdictional overlap and duplication
is simple inefficiency. In mixed cases an appellant can, at no addi-
tional risk, have two agencies review his or her appeal. These agen-
cies rarely differ in their determinations, but an employee has little
to lose by asking both agencies to review his or her case.

Just how much this multilevel, multiagency redress system costs
is hard to ascertain. We know that in fiscal year 1994, the share
of the budgets of the four agencies that was devoted to individual
employees’ appeals and complaints totaled $54.2 million. We also
know that in 1994, employing agencies reported spending almost
$34 million investigating ‘discrimination complaints. In addition,
over $7 million was awarded for complainants’ legal fees and costs
in discrimination cases alone.

Many of the other costs cannot be pinned down, such as the di-
rect costs accrued by employing agencies while participating in the
appeals process, arbitration costs, the various costs tied to produc-
tivity in the workplace, and, of course, court costs.

Individual cases can take a long time to resolve, especially if they
involve claims of discrimination. For example, among discrimina-
tion cases closed during fiscal year 1994 for which there was a
hearing before an EEOC administrative judge and appeal of an
agency final decision to the Commission itself, the average time
from the filing of the complaint with the employing agency to the
Commission’s decision on the appeal was over 800 days.

As things stand today, Federal workers have substantially Great
er employment Protections than do private-sector employees. ile
most larger and medium-sized companies have multistep adminis-
trative procedures through which their employees can appeal ad-
verse actions, these workers cannot in general, appeal the outcome
to an independent agency.

Compared with Federal employees, their rights to take their em-
ployer to court are also limited, and even when private sector work-
ers complain of discrimination to EEOC, they receive less com-
prehensive treatment than do executive branch Federal workers,
who, unlike their private sector counterparts, are entitled to evi-
dentiary hearings before an EEOC administrative judge as well as
a trial in District Court.

What are the implications of the extensive opportunities for re-
dress provided Federal workers? Federal employees file workplace
discrimination complaints at roughly 10 times the per capita rate
of private sector employees.

t the employing agency level, the prospect of having to deal
with lengthy and complex procedures can affect the willingness of
managers to deal with conduct and performance issues.

In 1991 we reported that over 40 percent of personnel officials,
managers, and supervisors interviewed said that the potential for
an employee using the appeal or arbitration process would affect a
manager's or supervisor’s willingness to pursue a performance ac-

10.

At a time when Congress and the administration are considering
opportunities for civil service reform, organizations outside the ex-
ecutive branch of the Federal Government, including, I believe, the
private sector, may be useful sources for ideas on reforming the ad-
ministrative redress system.


77

My fourth and final point is to add one principle to the ones—
to recommend adding one principle to the ones that the chairman
recited at the beginning, each one of which I agree with, and that’s
the principle that any reforms to the system and structure for re-
solving Federal workplace disputes should be clearly the goal of re-
ducing the costs of such conflict. That’s what’s motivating change
in the private sector.

I come from a background of working on this in the private sec-
tor. That's what’s motivating what we are doing at the Federal
Labor Relations Authority. I will tell you, and perhaps in questions
and answers, have an opportunity to expand upon it, that our em-
phasis on reducing costs in the workplace conflict are having very
powerful results. It can work if you put your minds to it.

Thank you. I look forward to answering your questions.

Mr. Mica. We thank you for your testimony.

[The prepared statement of Ms. Segal follows:]


83

“DOING THINGS BETTER” REQUIRES DETERMINING
WHAT NEEDS TO BE ACCOMPLISHED AND HOW BEST TO DO IT:
THE COSTS AND BENEFITS OF RESTRUCTURING

Before we expend taxpayer resources on reforming by restructuring the current
process, it is important to be clear on the goals we seek to achieve, and confident
that any new structure will achieve them. Even significant costs may be worth
expending if they result in great benefits. However, even minimal costs may be
too high if they produce no real benefit at all.

Some of the considerations that will affect the cost of restructuring pertain to all of
the agencies presently involved in addressing federal workplace disputes. For
example, restructuring the current system will inevitably cause some level of
interruption of services during the period of transition. The “costs” of such
interruption likely to be highest during a period when the rest of government is
also in transition and reorganization-related issues are on the rise. It is, in short,
during these times that the services of third-party dispute resolvers are needed
most. To paraphrase an exchange at one of the Committee's earlier Civil Service
Reform hearings, “an injured physician is not in any shape to conduct an
operation.” Therefore, the timing of any structural change is important.

Other considerations will be unique to particular agencies. With respect to the
FLRA, for example, if a new structure is contemplated that dismantles the
combination of functions currently consolidated within our one agency, it will carry
distinct costs that must be assessed. Our current consolidation cari
certain challenges, and produces important benefits. I've already described how
the division of responsibilities between the Authority and Office of General Counsel
in the representation area serves our customers well.

Another benefit resulting from our current structure is the FLRA’s cross-component
emphasis on alternatives to traditional adversarial litigation. These activities are
directed toward reducing litigation in the federal service (and its attendant costs --
both to the parties and the FLRA) by helping parties resolve more of their own
disputes without third-party assistance. While these alternative approaches to
resolving cases -- which are praised by management and union representatives

till at their inception, early indications show they work. There are a

of anecdotes about agencies saving litigations costs and increasing
productivity and customer service by using these alternative problem-solving
approaches.

The Authority, Office of General Counsel and the Panel have just taken a further
step to build on this by creating a unified cross-component “conflict resolution /
labor-management collaboration program.” This program will strengthen our

5


227

Chairman Mica, Members of the Subcommittee, thank you for allowing us to submit
this testimony. The National Association of Postmasters of the United States (NAPUS) is a
postal management organization which has been in existence since 1898. We represent more
than 43,000 active and retired postmasters throughout the United States.

As postmasters, we are both managers and employees of the Postal Service. As you
know, postmasters are responsible for the day to day operations of the post office in each city
and community. They must meet the daily challenge of providing service to the public,
creating incentives for employees who do the work, and meeting the demands of productivity
and budget established by the Postal Service. It is the postmaster who assigns work duties,
who hears complaints from customers, and who bears the ultimate responsibility for the
financial success or failure of that particular office.

‘As managers, we understand the problem of poor performers and realize that
employees should not have unlimited rights to appeal. Therefore, we are not here to oppose
any and all attempts to streamline the appeals process. It is our understanding that this
Subcommittee is considering combining causes of action under a single adjudicative agency.
Without further information on a specific proposal, NAPUS cannot take a position either in
‘support of or opposition to such modifications in the current appeals process. However, we
do want to speak in support of a process which we believe does work and which actually
reduces the burden on the federal appeals court. That appeal avenue is the Merit System
Protection Board (MSPB).

Unlike union employees, postmasters do not have access to a grievance process. This
means that MSPB rights are particularly important for postmasters because they provide the


Statement on Streamlining Federal Employee Appeals Procedures
By Congressman Charles F. Bass
11/29/95

Thank you, Mr, Chairman, As we are all aware, federal employees exist
in a professional world complicated by a baffling maze of rules and
regulations entirely unknown to their private sector counterparts. Perhaps
the most complicated of all the proceedings for federal employees is the appeal
of a managerial decision.

Currently, the multilayered appeals process allows for the involvement
of a number of appellate bodies, including the Office of Personnel
Management, the Merit Systems Protection Board, the Equal Employment
Opportunities Commission, the Office of the Special Counsel, and the Federal
Labor Relations Authority. Additionally, the process can weave back and
forth between administrative and judicial proceedings without any finality, In
fact, after being handed an undesirable decision in one proceeding, a
dissatisfied federal employee has any number of options to begin the appeal
completely anew.

The uncertainty of the current appeals process, as well as its costs,
necessitate reform. The advantages to federal managers of a clearly
delineated appeals process are obvious. Managers need to assert decision-
making authority without the threat of eternal appeal. While we all agree that
steps must be taken to guarantee the rights of the employee, a streamlined
appeals process would allow the federal system to better perform its duties
and serve the American people. Therefore, Mr. Chairman, J welcome the
opportunity to participate in this hearing and bring to light the important
testimony of today’s witnesses.


1

changes to the current system. Let me discuss the principal issues in turn. I have included,
as an attachment to my testimony, a ten-year statistical summary of EEOC's federal
complaints processing activities.

First, any effort to limit the right of federal employees to file civil rights complaints
would raise serious concerns. Like its private sector counterpart, the system that protects
federal workers from employment discrimination is a complaint-driven system. Employees
have the right to file administrative complaints when they believe their federal employer has
unlawfully discriminated against them. In addition, all employees have the right to pursue
their discrimination claims in federal district court if they are unsatisfied with the
administrative decision. Any abridgement of federal employees’ rights to file individual
discrimination complaints would dramatically alter the fundamental civil rights protections
afforded federal employees provided by the 1972 amendments to the Civil Rights Act of
1964, and such an abridgement would afford federal employees fewer civil rights protections
than are afforded workers in the private sector.

Second, some suggest that the rights of federal employees to raise discrimination
allegations should be eliminated when agencies take performance-based actions against them.
To begin with, the suggestion to prohibit the raising of an affirmative defense of unlawful
discrimination in matters dealing with performance-based actions would permit an unjustly
arbitrary application of performance standards in federal employment. For example, a
manager could fire all African-Americans for poor performance but retain Whites who
similarly perform poorly; the fired employees would have no recourse to address the obvious
and unlawful discrimination, Seen in that light, any such proposal is obviously unacceptable.
Eliminating civil rights for federal employees in any respect would set a dangerous precedent
and would significantly interfere with Congress’ mandate that the federal government be a
model employer.

Moreover, the evidence shows that these cases do not present a practical problem.
‘Under the 1979 reforms, the EEOC shares limited appellate responsibilities with other
federal agencies. Under the CSRA, EEOC shares jurisdiction with the Merit Systems
Protection Board (MSPB) for those employment complaints which raise allegations of
discrimination as a defense for an adverse personnel action appealable to the MSPB --
teferred to as "mixed" cases. While this mixed case process has been criticized by some as
burdensome and leading to duplication of effort, the facts do not support these claims.
Indeed, there were only 173 requests for reviews of MSPB decisions filed with EEOC in FY
1994 (See Table). EEOC and MSPB have not disagreed over the final resolution of a case
since 1987. EEOC also has dual responsibility with the Federal Labor Relations Authority
(FLRA) for certain grievances which raise discrimination issues under a negotiated grievance
procedure. Again, there are very few cases which fall within these procedures. For
‘example, in 1994, EEOC reviewed one appeal of a grievance on the merits of an FLRA.
decision.


81

approach to its labor-management relations. It is, in effect, “three agencies
consolidated in one.” Because it is important to understand this existing
consolidation as the Committee considers possible alternative structures, | will
briefly summarize the functions of each of these three independent operational
components. More detailed discussions of the Office of General Counsel and the
Federal Service Impasses Panel are included in General Counsel Swerdzewski's and
Chair Bolden’s written statements.

The Authority: The Authority is a quasi-judicial body with three full-time Members
{one of whom is Chair) who are appointed by the President with the advice and
consent of the Senate. In addition to my responsibilities as the Chief Executi
Administrative Officer of the FLRA, | serve as Chair of the Authority. This
component of the FLRA is the first adjudicatory level to decide cases concerning
the negotiability of particular collective bargaining agreement proposals. We also
decide “exceptions” (the equivalent of appeals) filed by agencies or unions to
itration aw: In addition, the Members and | resolve allegations of
unfair labor practices (ULP), deciding agency and union appeals from decisions and
recommended orders issued by our Administrative Law Judges on ULP complaints
prosecuted by the FLRA’s Office of General Counsel.

ind

Finally, we decide the appropriateness of units for labor organization
representation. Pursuant to our delegation, the initial processing of representation
petitions and the conduct of elections is handled by the FLRA’s seven Regional
Directors. Since the Regional Directors are supervised by the General Counsel, this
delegation illustrates one aspect of the integration between the Authority and the
Office of General Counsel made possible by our consolidated structure.
Specifically, rather than require thousands of agencies and bargaining units
throughout the country to bring their petitions to the Authority's sole office in
Washington, D.C., or create a separate field structure to process them, the regional
offices supervised by the General Counsel carry out this responsibility.

The success of this integrated approach to representation issues is evident in the
numbers. Last year, 95% of the 600 representation petitions filed with the FLRA
were determined at the local level by the Regional Directors without appeal to the
Authority. | have no doubt that this is due in large part to the nature of the
ongoing interactions between our regional offices and the parties, as described in
General Counsel Swerdzweski's testimony. As | will note later, one of the
challenges about any restructuring of the current system is ensuring that there
continues to be an adequate field structure to address the representation process,
and avoiding representation issues becoming unnecessarily adversarial and costly.

The Office of General Counsel: The FLRA’s Office of General Counsel (OGC) is the
independent investigative and prosecutorial component of the FLRA, directed and
managed by a General Counsel who is appointed by the President with the advice

3


188

igned matte:

A separate division could be

ablished to
conduct trial proceedings, including the possibility of jury trials

in appropriate cases under the various civil rights laws.

Many might question why a court is necessary. In our view, it
is necessary for two reasons: 1) One of the most common defenses
and allegations raised in appeals of personnel actions, as
previously shown, is an allegation concerning violations of the
civil rights laws. We do not believe that the civil rights
community could (or should) agree to give up the right of any
person, including a federal employee, to take his or her case to a
court composed of independent judges nominated by the President for
a fixed term and confirmed by the Senate. That being the case, we
can only envision a system wherein finality of federal employees’
appeals would be possible with only one appeal by establishing a
specialized court made up of independent judges. It would negate
the necessity of an employee having the right to appeal a final
decision by an administrative agency to the various district courts
on civil rights issues. Every employee would receive finality in
their decision where they would receive one appeal, the opportunity
to raise all their affirmative defenses (all of which were examined
by the game court, in whatever manner) and one final decision.
Decisions of the Court would only be appealable to the U.S. Court
of Appeals for the Federal Circuit, as are MSPB decisions now.
Granting exclusive jurisdiction in all federal employee appeals of

decisions of the USCFE (including civil rights matters) to the


107

can state that discrimination remains a problem in the Federal sec-
tor. The complaint processing system currently governing Federal
sector EEO complaints is guided by EEOC procedural regulations
that were developed in 1991 after extensive consultation with Fed-
eral employee management and labor groups.

A Federal employee alleging discrimination must first seek coun-
seling and file a complaint with his or her Federal employer. The
Federal agency then conducts an investigation of the complaint and
an EEOC administrative judge presides over an administrative
hearing prior to the issuance by the agency of its final decision.
And r the agency renders its final decision, the EEOC adju-
dicates appeals of final agency decisions.

Now, there’s discussion concerning the difficulty of removing poor
performers based on Federal managers’ fear of false discrimination
claims. There’s also a perception that Federal employees file frivo-
lous discrimination claims to avoid or to frustrate performance-
based actions being taken against them. In addition, it’s been ar-
gued that the appeals Processes available to Federal employees are
too many and too complicated.

In my view, a relationship has not been shown to exist, nor does
it exist, between the civil rights protections currently extended to
Federal employees and the problem of poor performance—poor per-
formers. The current system works effectively to eliminate duplica-
tion of effort and unnecessary burdens in connection with the proc-
essing of civil rights complaints, so there is not the necessary em-
pirical predicate to support major changes to the current system.
And I would like to discuss just five points very briefly, and I have
attached to my written testimony a 10-year statistical summary of
the EEOC’s Federal complaints processing activities.

First, any effort to limit the right of Federal employees to file
civil rights complaints would raise serious concerns. Like the pri-
vate sector counterpart, the system that protects Federal workers
from employment discrimination is a complaint-driven system. Any
abridgement of Federal employees’ rights to file individual discrimi-
nation complaints would afford them fewer civil rights protections
than are afforded workers in the private sector, the same statute.

Second, some suggest that the rights of Federal employees to
raise discrimination allegations should be eliminated when agen-
cies take performance-based actions against them. That approach
would permit an unjustly arbitrary application of performance
standards in Federal employment.

For example, a manager could fire all African Americans for poor
performance, but retain whites who similarly perform poorly; and
the fired employees would have no recourse to address the obvious
and unlawful discrimination. So seen in that light, any such pro-
posal is obviously unacceptable.

Moreover, the empirical evidence shows that these cases do not
present a practical problem. While this mixed case process has
been criticized as burdensome and leading to duplication of efforts,
the facts do not support these claims. Indeed, there were only 173
requests for reviews of MSPB decisions filed with the EEOC in fis-
cal year 1994; that’s 2.4 percent, EEOC and MSPB have not dis-
agreed over the final resolution of a case since 1987.


92

Accounting Service, Defense Logistics Agency, Defense information Services
Agency and the Department of Agriculture. Previously, using the traditional
method of case processing, each of these reorganizations would have generated
the filings of hundreds of representation petitions and literally thousands of unfair
labor practice charges due to the major impact of such massive reorganizations.
Because of the understandings reached through this alternative process, the only
petitions that were filed were those that the pa agreed were necessary, a mere
fraction of what normally would have been file ese situations. Further, there
were relatively few unfair labor practice charges filed regarding these
reorganizations.

Clearly, the FLRA is prepared to deal with the potential of additional cabinet level
and smaller agency reorganizations. Our expertise and leadership in dealing with
large scale organizational change will be valuable in assisting the parties in the
challenges attendant to major organizational restructuring. The cost of delay in
solving the problems associated with such large scale changes will not lead to an
effective and efficient government.

ro Poli

In order to continue to provide better service to our customers, the OGC has
recently issued a series of new policies. The first policy, entitled, “Quality of
Unfair Labor Practice Investigations,” establishes quality standards for the
investigation of unfair labor practice charges. The standards are intended to insure
that all charges filed with the OGC at any location in the country receive the same
high level of quality processing. These are standards we expect our customers to
hold us to as we process their cases. This policy includes the introduction of new
investigative techniques which will both speed the timeliness of the investigations
and provide more cost effective ways of handling the cases with the same level of
quality.

The second policy, entitled “Scope of Investigations,” also provides guidance in the
processing of unfair labor practice charges. The purpose of this policy is to
establish guidelines for the extent to which unfair labor practice charges should be
investigated. As with the Prosecutorial Discretion policy, this policy seeks to
reduce the expenditure of resources of the OGC in investigating cases which
should not be investigated. The policy establishes criteria for Regional Directors to
determine the type and scope of an investigation based on the totality of the
circumstances surrounding the charge and when deemed appropriate, terminate an
investigation and solicit withdrawal. This eliminates needless and often expensive
investigations of charges which can be determined to be without merit ear the
investigatory stage of case processing.

Lastly, the “Intervention Policy” sets forth criteria and requirements for using
alternative approaches to resolving unfair labor practice charges rather than

5


180

reduce the number of actions, because you are only going to have
one circuit court dealing with the problem.

That is our proposal. We commend it to you. We think it would
work. We certainly join with both Mr. Levinson and Mr. Fischer in
arguing that we only need one organization.

Interestingly enough, every single Federal district court judge
today deals with a lot more statutes and a lot more laws in a lot
more variety as individuals than are encompassed by these five
separate agencies. It does not take five separate agencies to reach
a Judicial or quasi-judicial decision in these matters. There is ex-
pertise involved, but it is not that which is not discernible by oth-
ers.

I would just like to make two points. One is, Chairman Casellas
in his testimony talked about our proposal that affirmative de-
fenses not be allowed in performance cases. He said that that
would not be appropriate because there could be an arbitration of
performance standards where only African Americans would be af-
fected or only women or only whites or whatever. That is not our
proposal.

Our proposal is that there be established an arm within the
EEOC, or whatever Federal group there is, just like the Special
Counsel, that would have the ability to intervene, and an employee
who said, look, they are only getting rid of whites here or only get-
ting rid of women here, would have an outlet and an ability for an
organization to intervene and stop the action before it got any-
where. It worked with the Special Counsel on whistleblowers, and
it would work here.

The three-tenths of 1 percent of the cases where discrimination
is the affirmative defense is found in cases appealed to the Merit
Systems Protection Board don’t justify anything else. They don’t
justify the thousands of cases that go through the process.

One more point. Mr. Casellas mentioned that States also have
EEO systems so the ratio of complaints filed by public sector ver-
sus private sector employees does not equate.

That is true, they do. Many of them cover a lot more areas than
our EEO system does; for example, the District of Columbia. It is
also a violation of law, District law, to discriminate on the basis of
sexual orientation and other matters that are not concerned in our
EEO system.

Even if that 100,000 additional cases handled at the State level
was factored into this, it would still be—and the assumption is that
they are all the same—it would still be more than 5 to 1 cases filed
by Federal employee versus private sector employees, and that is
enough. Even if it is not 10 to 1, if it is 5 to 1, that is enough.

We thank you for the opportunity to testify, and we would like
our full statement included in the record.

Mr. Mica. Without objection, your full statement will be included
in the record.

[The prepared statement of Mr. Shaw follows:]


183

ten year period 1982-1992, for every complaint filed per 1,000
employees in the private sector, seven complaints were filed per
1,000 employees in the federal sector. In addition, we found that,
over the same ten year period, employees of the Equal Employment
Opportunity Commission filed complaints at a rate four times higher
than that of federal employe

generally (over 28 per thousand
employees in comparison to 7 on average) and over thirty times

higher than employees in the private

ctor. We do not pretend to
understand this phenomenon. We speculate that people who are more
educated about the options that are available to them have a
tendency to use them more often. Thus, federal employees are more
conversant with the EEO system than private sector employees, and

federal employ.

at the EEOC are more conversant than either

federal employees generally or private sector employees.

Whatever the reason, the fact is that federal managers are
having to deal with seven times the number of EEO complaints from
federal employees as are private sector managers. And, given the
current system, they obviously have to devote seven times more
resources to dealing with these complaints than private sector
management. This affects the efficiency and effectiveness of

government agencies.

Late in 1994, SEA also examined the Merit systems Protection
Board’s annual reports for the prior eight fiscal years, FY 87

through FY 94, Of the total initial appeals filed, discrimination


US. Merit Systems Protection Board
Petitions for Review (PFR's) of Initial Appeals - FY 1995

Types of PFR’s—Filed*

‘Denial of Within Grade 1% (9)
“Termination of Probationers 2% (39)

Reduction in Force 18% (327)

‘Total Number of PFR’s: 1,817

* Excludes motions for attomey fees, petitions for enforcement, stay requests,
remands, original jurisdiction cases and other headquarter cases.


56

Speed is, of course, only part of the pictur
Judicial review of MSPB final decisions demonstrates that
the Board’s processes are not just efficient but that its
decisions are proper and accord with the law. In FY 1995,
the U.S. Court of Appeals for the Federal Circuit, the
primary reviewing court of the MSPB, left Board decisions
unchanged in 94 percent of the cases appealed to it.

Some have charged that the current system allows
Federal employees to get two bites at the apple--thwarting
agency managers by filing claims based on a single dispute
with more than one agency. I am not sure what basis there
is for this perception. The MSPB, the Office of Special
Counsel, the FLRA, and the EEOC all focus on different
aspects of the Federal employment disputes, and there are a
number of statutory prohibitions that prevent employees from
using more than one forum to voice a complaint. As the
Supreme Court noted, the CSRA was intended to replace the
“haphazard arrangements for administrative . . . review of
personnel action” with “an integrated system” to balance.
employee interests “with the needs of sound and efficient
administration.” United States v, Fausto, 484 U.S. 439,
444-45 (1988),

The CSRA authorizes the Special Counsel to investigate
and prosecute allegations of prohibited personnel practices
and to enforce the Hatch Act. The Special Counsel
prosecutes such cases and the MSPB adjudicates them. There
is no duplication of function.

The FLRA deals with the labor-management relations of
agencies and labor organizations in the Federal sector--
primarily issues between agencies and unions. The MSPB
decides appeals of personnel actions taken net
individuals and, the statute precludes the FLRA from
adjudicating issues that can properly be raised under an
MSPB appeals procedure. 5 U.S.C. 7116(d).

In the EEO context, the CSRA provides that decisions of
the MSPB in mixed cases--those raising one or more issues of
discrimination in connection with an appealable personnel
action--may be reviewed by the EEOC on the discrimination
issue, with possible further review by the MSPB and a
Special Panel. Despite this elaborate mechanism to ensure
significant protection of the civil rights of Federal
workers, most allegations of discrimination raised in
appealable actions are withdrawn, dismissed, or settled.

n EOC rarely disagrees with the MSPB decision in mixed

; In FY 1995 the EEOC dismissed or agreed with the
MSPB in 139 of 140 cases. The Special Panel--the final
administrative stage of the mixed case procedure--has issued
only three decisions since its inception, and it last issued
a decision in 1987.



18

can appeal to EEOC. But an employee who has been fired, and who
feels that the firing was based on discrimination, can
essentially appeal to both MSPB and EEOC. The employee first
appeals to MSPB, with hearing results further appealable to
MSPB's three-member Board. If the appellant is still
unsatisfied, he or she can then appeal MSPB's decision to EEOC.
If EEOC finds discrimination where MSPB did not, the two agencies
try to reach an accommodation. I£ they cannot do so--an event
that has occurred only three times in 15 years--a three-member
Special Panel is convened to reach a determination. at this
point, the employee who is still unsatisfied with the outcome can

file a civil action in U.S. district court, where the case can

begin again with a de nove trial.

A mixed case can become even more complicated and duplicative if
it is adjudicated under the provisions of a collective bargaining
agreement, which may lead to a hearing before an arbitrator. If
the employee goes through arbitration (which his or her union

must approve and for which it generally pays part of the cost)

and is left unsatisfied by the arbitrator's ruling, he or she can
appeal the arbitrator's ruling to MSPB, starting the adjudication

process almost from scratch.

The complexity of mixed cases has attracted a lot of attention.
But two facts about mixed cases are particularly worth noting.

First, few mixed cases coming before MSPB result in a finding of


47

I also was most concerned about the skyrocketing number of dis-
crimination cases, therefore leading to, I think, an average of 800
days in processing a claim.

And then I note also in your testimony there is a footnote that
says that EEOC is now looking at assessing the discrimination
complaint process and will have this report by early 1996.

Is your understanding that they are going to be looking at why
there are so many discrimination cases in terms of categorizing
what kinds of cases there are?

I mean, this may have something to say about the morale or
what is going wrong, or when we talk about, you know, employee
training programs, maybe this would give us some direction. Or is
it going to be totally about what they can do to expedite the proc-
essing of them?

Surely there must be some reason, besides the sensitivity that
you—that was mentioned earlier in terms of what kinds of cases
there are.

Mr. Bow.ina. Yes, I think both are legitimate subjects for in-
quiry, and I would defer to EEOC’s own description of how they in-
tend to pursue this study.

But I think you are right, there are other reasons than aware-
ness of discrimination. I think, you know, it is possible that the
training and understanding of how to process these claims and the
accommodations the agencies have made in terms of civil rights of-
fices and making the process user friendly may have the odd effect
of actually increasing the number of cases that are brought.

But I think an inquiry into that subject could be fruitful.

Mrs. MoRELLA. Mr. Chairman, we may want to do that, too. I
would be very interested in having EEOC apprise us of what their
objective is before we get the results of the study, if they undertake
it.

A question to both of you. This deals with what has been men-
tioned in terms of the frivolous cases. Have there been cases where
the agency has agreed to compensate them for the so-called frivo-
lous complaints because it is more cost effective?

And if you don’t know of any cases—there may be some—do you
see this as a potential problem that could emerge under the cur-
rent system and what we could do to negate it?

Mr. BOWLING. We have been told that, in fact, there are such
cases where agencies do settle and, perhaps settle somewhat ear-
lier or more inappropriately than they would have.

I have talked to agency human resources agencies that have told
us they will, in fact, settle even when they think they are in the
right, because they know by the time the case is done they will
have spent more than what the settlement actually cost and
chewed up more time as well, and the more appropriate way to get
the case off the books would be to settle it.

Mrs. MORELLA. Do you see some way of remedying that possibil-
ity?

Mr. BowLinc. Well, I think making the process somewhat sim-
pler and faster to pursue would probably go a long way toward cre-
ating that sense that we need to rush to settlement now, even if
we have a good case, simply because we don’t want to go through


51

When I joined the board as chairman in 1993, I made timely
handling of cases one of my priorities, prior to what we have
achieved even as we have streamlined the agency. The 96-day proc-
essing time in FY-95 for review of appeals by the three-member
board is a historic performance. The average processing time for
initial decisions initiated by administrative judges is also 96 days.
So, on average, it’s 6 months from the time that an appeal comes
to our agency to its resolution. If no board review level is sought,
then the action or judgment of the administrative judge is final;
and in 80 percent of the cases, that’s what takes place, so in 96
days the appeal that comes to us is resolved.

‘his record of timely disposition is particularly significant when
you consider the decrease in staff and the major increase in the
number of cases since FY-93 when I came to the board. Duri
that 3-year period, our staff has been decreased by 16 percent an
during that same period, the number of cases decided has been in-
creased, by 40 percent, from 9,400 cases in FY-93 to 13,000 cases
nm —9o.

Judicial review of our final decisions demonstrates that our proc-
esses are not gust efficient but are proper in a court of law. In FY-
95, the U.S. Court of Appeals for the Federal Circuit, our primary
reviewing court, left board decisions unchanged in 94 percent of the
cases appealed to it.

Some complain that the current system allows Federal employees
to get two bites at the apple: fling claims based on a single dispute
with more than one egency. The MSPB, the Office of Special Coun-
sel, the FLRA and the EEOC all focus on different aspects of Fed-
eral employment disputes, and there are statutory prohibitions
that prevent employees from using more than one forum to voice
a complaint.

The FLRA deals with labor-management relations of agencies
and labor organizations in the Federal sector, primarily issues be-
tween agencies and unions.

In the EEOC context, an employee may raise an issue of dis-
crimination in connection with an MSPB-appealable personnel ac-
tion, and our decisions may be reviewed by the EEOC on the dis-
crimination issue, but of some 10,000 cases we see in a year, only
about 2,000 or so raise a discrimination issue and most of those
claims are withdrawn, dismissed or settled. Only in a few cases
does a party seek to have the EEOC review a decision that we
made on a discrimination allegation.

In FY-95, for example, only 140 cases were taken to EEOC from
us, and the EEOC d with us in 139 of those cases. As the re-
evaluation of the civil service system goes forward, it seems to me
that whatever changes to the system are ultimately proposed, the
discussion should be guided by the goals of the original act, to have
a fair, neutral and timely process to resolve Federal employment
disputes and neutral oversight of the merit systems.

‘urther, it seems to me that the subcommittee’s review should
begin where the disputes originate, in the workplace. The success-
ful resolution of wor! splace disputes benefits the involved | agencies,
and as importantly, the taxpayers who fund governmental activi-
ties. Your review of dispute resolutions and proposals for improve-
ment should be a benefit for everyone.


80

Because this concept of “institutional” as opposed to “individual” relationships may
not be readily understood, let me try and bring it into focus. When the Committee
invites the presidents of the government's largest union: testify, it is looking to
them as “institutional” representatives. The Committers ks their testimony with
the confidence that the witness is not speaking for his or herself alone, but on
behalf of the thousands of employees they represent. This same principle applies
in the federal workplace between agencies and unions. The FLRA, operating as a
“neutral,” administers this institutional relationship.

The FLRA’s mission and the unique organizational structure reflects this emphasis
on institutional relationships. It was created in 1978 as an independent agency to
administer the labor-management relations program for over 2.1 million non-postal
federal employees world-wide, over 1.3 million of whom are now exclusively
represented in more than 2,200 bargaining units. The FLRA’s statutory
responsibility is to pro’ leadership in establishing policies and guidance relating
to federal sector labor-management relations and ensure compliance with the
Federal Service Labor-Management Relations Statute.

This Statute gives federal employees the right to “participate through labor
organizations of their own choosing in decisions which affect them.” 5 U.S.C.
7101(a)(1). The key word here is “labor organizations.” The only rights of
individual employees addressed in the Statute concern, on the one hand, forming,
joining or assisting labor organizations (or refraining from doing so), 5 U.S.C. 7102,
and on the other, exercising management authority on behalf of an agency. 5
U.S.C. 7106, The Statute, in short, addresses the rights and duties not of
“individuals” per se, but of individuals within the context of labor organizations. It
defines the relationship between two institutions -- the agency and the union
representing the agency's employees. The FLRA’s charge is to ensure that this
relationship operates to “safeguard the public interest” and “contribute to the
effective conduct of public business,” and that it “facilitates and encourages the
amicable settlements of disputes” 5 U.S.C. 7101(a)(1)(A), (B), (C).

The FLRA fulfills these statutory responsibilities primarily through three independent
operational components.' Before the FLRA was created in 1978 by the Civil
Service Reform Act, labor-management relations in the federal sector was governed
by Executive Order and its admi ation was fragmented among various parts of
the government. Today’s FLRA represents the federal government's consolidated

> The FLRA also supports two other components which were
established by the Foreign Service Act of 1980: the Foreign Service Labor
Relations Board, which resolves labor-management issues within the foreign service
workforce, and the Foreign Service Impasses Disputes Panel, which resolve
impasses within the foreign service.

2


THE CHAIRMAN

U.S. MERIT SYSTEMS PROTECTION BOARD
1120 Vermont Avenue, NW.
Washington, DC 20419

December 5, 1995

The Honorable John L. Mica

Chairman

Subcommittee on Civil Service

House Committee on Government
Reform and Oversight

Washington, Dc 20515

Dear Mr. Chairman:

Thank you for the opportunity to discuss the very
important subject of the Federal employee appeals structure.
As I said at the hearing, I pledge my cooperation with the
Subcommittee as it continues to examine the issue.

I was pleased to hear that the Subcommittee will be
guided by the principles enunciated at the hearing as
examination of the appeals process goes forward. 1 would
only add that, as a basic consideration, the guiding
principles be merit based. Merit is the fundamental
underpinning of any civil service system and should be the
ultimate goal of any changes to the process.

I am writing to answer two questions posed during the
hearing and to add a thought regarding alternative dispute
resolution (ADR).

At the hearing, I promised to provide specific
information about the number of reduction-in-force (RIF) and
retirement appeals. ‘The number of RIF appeals has increased
dramatically since 1993 when I became Chairman.

Year RIF Appeals Percent of Increase
Total Appeals over prior
year
FY 1995 2,303 24% 252%
FY 1994 654 oe 93%
FY 1993 339 5st

‘The Bicmtennial ofthe US. Constitution 747.1987



135

In 1993 and 1994 we dropped to the 67,000 and 68,000. So we
have actually fewer attempts to resolve some of these problems at
the counseling or the contact level. And then formal complaints,
you have in the 1980’s, 1984, for example, is 17,900. Some are
15,000, 16,000, 17,000.

When you get up to 1993, you are at 22,000; and 24,000 in 1994.
So it seems that your intentions to resolve these at the lower level
or the workplace are fine, but in reality, you have much fewer con-
tacts, according to your statistics, and counseling at the workplace
level, and many more formal complaints being filed.

What's the situation here? Is this an accurate reflection of what’s
taking place?

Mr. CASELLAS. Well, these are accurate numbers. These rep-
resent individuals who show up in their agencies because the first
step in the process is, you do this counseling contact. You can’t file
a formal complaint unless you do this, unless you have this coun-
seling contact.

There are fewer counseling contacts, you are right, which may
suggest that those people who were filing, “frivolous complaints”
earlier on, are not doing that; that there are fewer People begin-
ning that process. And, therefore, there are proportionately strong-
er numbers of the ones that are less frivolous.

It’s hard to know because these are—these are spread—these are
agency statistics; these are not EEOC contacts, per se. These are
Federal—you know, DOD and Commerce and wherever else they
come from—and we simply collect them and show what the formal
complaints are at the agencies, as well as the counseling contacts
at the agencies. You are right, I don’t know what to attribute it to
except if you look at the number of counseling contacts, it has
dropped. That could suggest that fewer people with less strong
cases are coming forward now.

Mr. Mica. Well, it also concerns me that we are not attempting
to resolve some of this at the workplace level; that, in fact, we are
getting formal complaints at a 30 percent higher rate in the last
couple of years; that more people are going to formal complaints
which—and, again, the 10-to-1 figure versus the private sector, it
seems like it’s being overused and possibly abused in the Federal
workplace.

So it becomes a concern, at least from the numbers.

Mr. CaSELLas. Right. I mean, it remains a—it remains a com-
plaint-driven system, as it is in the private sector. And unless you
are going to change the statutes so that Federal employees don’t
have the right to initiate in the first instance a complaint, we are
going to respond to the complaints; and what we are trying to do
internally at EEOC in terms of how we do this is to make the proc-
ess as streamlined and as efficient and as effective as possible. But
we are not suggesting that you close the door to Federal employees
with regard to their rights.

Mr. Mica. Thank you. We may have additional questions.

Ms. Segal, in your testimony you said that there are only two
limited opportunities for jurisdictional overlap between F! and
other agencies, Could you elaborate on that briefly?

Ms. SEGAL. Yes. Let me start by clarifying that none of these
overlaps have been in the context of Chapter 43, or Chapter 75 ac-


13

EEDERAL EMPLOYEE REDRESS: An Opportunity for Reform
Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss the administrative
redress system for federal employees. The current redress system
grew out of the Civil Service Reform Act of 1978 (CSRA) and
related legal and regulatory decisions that have occurred over
the past 15 years. The purpose of the redress system is to
uphold the merit system principles by ensuring that federal
employees are protected against arbitrary agency actions and
prohibited personnel practices, such as discrimination or
retaliation for whistleblowing. Today, as more voices are heard
calling for streamlining or consolidating the redress system, I
would like to address the question of how well the redress system
is working and whether, in its present form, it contributes to or
detracts from the fair and efficient operation of the federal

government .
I have three points to make:
-- First, because of the complexity of the system and the

variety of redress mechanisms it affords federal employees,

it is inefficient, expensive, and time-consuming.

cond, because the system is so strongly protective of the
redress rights of individual workers, it is vulnerable to

employees who would take undue advantage of these


187

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, DC 20424
(202) 482-6500

SE

= December 6, 1995
Phyl N. Sagal
Char

‘The Honorable John L. Mica, Chairman
Subcommittee on Civil Service

Committee on Government Reform and Oversight
U.S. House of Representatives

B371-C Raybum House Office Building
Washington, DC 20515-6143

Dear Chairman Mica:
er your request, enclosed are charts reflecting the FLRA’s workload over the last ten

years. We request that these charts be placed in the record, along with the written statements
‘submitted at the civil service reform hearing on November 29.

‘Thank-you again for the opportunity to appear before the Civil Service Subcommittee to
testify about federal workplace disputes. As we discussed at the hearing, reforms designed to
reduce the costs of conflict will, if they succeed, produce important benefits for both federal
employees and the American taxpayer. These benefits include cost savings associated with
reduced litigation, as well as increased productivity and customer service.

‘The FLRA is dedicating itself to achieving these goals. We have developed new
programs aimed at improving the relationship between managers, unions and the employees they
represent and helping them resolve “problems” themselves, before they become “cases.”
Although we have only started these efforts in the last two years, early indications show they
work. Thus, for example, enclosed are charts which illustrate the results achieved in the unfair
labor practice area. They show a:

. Redziction in Unfair Labor Practice Charges: 28% decrease in unfair labor
practice charges filings in the last two-years;

+ Reduction in Unfair Labor Practice Complaints: The 402 unfair labor practice
complaints issued in fiscal year 1995 was the lowest number of complaints issued
in the last ten years. Indeed, it is 43% lower than the average number of
complaints issued during this ten year period;

. Reduction in Unfair Labor Practice Hearings: The 52 unfair labor practice
hearings that were held in 1995 represent the lowest number of unfair labor
practice complaints litigated in the last ten years and is 57% lower than the
average hearing rate for this ten-year period.


55

knowledgeable agency officials from a number of Federal
agencies, on average only 20 percent of all removals and
demotions are appealed to MSPB.” Appeals challenging agency
actions are heard initially by administrative judges in the
regional and field offices, and their decisions may be
appealed to the 3-member Board in Washington.

The 96 day-processing time in FY 1995 for second-level
review of employee appeals of personnel actions by the
3-member Board is an historic performance.

* The average processing time for the initial decision
issued by an administrative judge is also 96 days.

On average, the total time from filing an appeal to
final decision on review by the full Board is just over
six months.

If no Board review is sought, as is the case in 80
percent of the appeals, the initial decision becomes
final--on average in 96 days.

As the attached chart shows, this record of timely
disposition of appeals is particularly significant when you
consider the dramatic decrease in staff and the major

incret in the number of ca between FY 1993, when I came
to the Board, and FY 1995,

* During this three-year period, staff decreased by
almost 16 percent.

* During this same period, the number of cases decided by
the MSPB increased by 40 percent (from 9,424 to 13,160
cases).

Nearly 90 percent of the cases that come to us are
appeals of agency personnel actions. Retirement matters are
also appealable to the Board. The rest of our caseload
includes actions brought by the Special Counsel--reprisals
against whistleblowers, violations of the Hatch Act, and
other abuses of the merit system. A ten year history of the
MSPB‘s workload is attach

Our record of efficiency also has another face--the
gnificant strain this adjudicatory pace places on the MSPB
staff. The staff effort deserves recognition because it
reflects their dedication and commitment to protecting the
merit principles of our civil service.



2

There is an interesting case that I want to cite, and that is the
case of Edward J. Lynch, which illustrates how convoluted these
procedures can be. Mr. Lynch’s saga began in March 1982 when
the Department of Education fired him for unauthorized absences
and poor performance.

The main part of his case ended more than 12 years later, when
the U.S. Court of Appeals for the Federal Circuit handed down its
second ruling in the case. Mr. Lynch had been ordered reinstated
by the MSPB years earlier. That order was not overturned.

During the course of this one case, there were 10 administrative
and judicial rulings. Four Federal agencies—the Department of
Education, the MSPB, the EEOC, and OPM—and two Federal
courts were involved at some point in this one case alone.

Certainly we can guarantee fairness to the Federal employees
using simpler procedures without expending so much Federal re-
sources. As we examine the appeals process, we should be guided
by certain principles, and I have set some of these forward, and we
will hear from some of our panelists about them, but I believe
these principles that we should adhere to are as follows.

First, employees deserve due process. They should have the op-
portunity to tell their side of the story to someone who will inde-
pendently listen to them and be objective.

I have participated in some of the Travelgate hearings that were
held and that dramatized some of the problem. We heard of White
House officials who fired civil servants and didn’t even bother giv-
ing them an opportunity to reply to some of the charges against
them.

Second, the procedures should be simple and straightforward.

Third, taxpayers deserve a process that does not discourage man-
agers from taking disciplinary actions when justified.

And finally, everyone—taxpayers, managers and employees
alike—must be confident that when employees are disciplined, they
are disciplined for the right reasons. They need assurance that
proper actions will be upheld and that management mistakes will
be corrected.

Making Government and Federal employees responsible and ac-
countable must be our ultimate goal as we consider changing the
appeals process, as we move forward in our civil service reform
process.

We are fortunate today to hear from a distinguished group of
witnesses who are most knowledgeable about the Federal appeals
procedures and Federal appeals process. Our first panel consists of
Timothy Bowling of GAO, who has studied these systems carefully,
and Allan Heuerman, an Associate Director of the Office of Person-
nel Management. OPM gays a key role in the appeals process as
a litigator and as the Government’s central personnel agency. It
also acts as an adjudicator in some cases.

The witnesses on our second panel are the heads of the Merit
Systems Protection Board, the Federal Labor Relations Authority
and the Equal Employment Opportunity Commission. These are
the agencies that hear most of the Federal employment appeals.
They are joined also today by Special Counsel, Kathleen Day Koch,
who, on behalf of the employees, litigates important cases involving


174

leadership, it is not surprising that the current statutory scheme encourages
balkanization of these processes and tends to produce overlap and
inefficiency as well as confusion.

I should point out that it has been my experience that those who
administer the laws in these agencies are conscientious and responsive. They
do their best in this maelstrom to prevent disorder, duplication, and delay.
However, given the complexity of the current system and its components,
only a naive employee would proceed without the assistance of an attorney or
other counsel. It is also not surprising that managers and supervisors spend
much of their time away from their regular duties when they are required to
defend themselves and agency actions in these processes. And, in this
unfamiliar labyrinth, supervisors become increasingly reluctant to take action
against poor performers and those who disrupt the workplace. The result is
public cynicism about governmental efficiency and dissatisfaction by
managers and employees about how the processes are administered. In an
era of streamlining and promoting "customer friendly” access to government
services, Federal employee dispute resolution processes seem archaically
duplicative and needlessly complex.

As can be readily imagined, having five separate agencies responsible
for these processes also increases administrative costs. Each agency has its
own management structure, including separate personnel, budget,
procurement, public information, congressional liaison and other
administrative support offices. Many of these support services have been
specifically targeted by the Administration’s National Performance Review as
areas for staff and budget reductions. On administrative costs alone, budget
staff at one agency has informally estimated that consolidation of these

processes under a single administrative umbrella could save as much as $13
million.

Putting these processes under the oversight of a single agency would
not undermine the fundamental purpose of the Civil Service Reform Act of
1978. The CSRA resolved to separate management functions from those of
enforcement, adjudication, and oversight in the civil service. OPM would
continue to perform its management policy responsibilities for the Executive
Branch separate and apart from processes involving employee remedies.
However, the processing of classification appeals is inconsistent with that


198

that there seems to be a sense that the delay is caused by employ-
ees who are using the system at great length, but I think that the
cause of the delay and problems is in the cumbersome internal
agency procedures that revisits the same issue over and over again
and that allows for the decisionmaking to be entirely inte

the agency for the entire administrative process, which leads to no
quick resolution of those.

There is legislation currently pending, the Federal Employee
Fairness Act, H.R. 2133, that would address a lot of the concerns
about the EEO process that were raised today, Congressman
Moran’s questions about triage. The Federal Employee Fairness
Act does have a procedure for getting rid of frivolous cases early,
and I think that that is a forum that the civil rights and employee
groups have been happy to endorse.

It also—the procedure would also cut down on the enormous lev-
els of review within the agency that are taking place now and have
a simple administrative hearing that would be quick.

The second issue is, I think that the jurisdiction of the Federal
Labor Relations Authority is overly complicated and should be sim-
plified. Within the Federal Labor Relations Authority there are a
variety of different kinds of procedures; negotiation procedures, im-
passes procedures. Many of these procedures could be simplified
and eliminated, and we have made some specific recommendations
to that effect in our written testimony.

In conclusion, I want to stress that the NTEU is eager to work
with the subcommittee to formulate modifications to the current
system that will increase Government efficiency and enhance dis-
pute resolution. We are happy to consider any recommendations for
less formal procedural structures as long as the new forums pro-
vide an effective role for employees and assure their interests will
be protected.

(Phe prepared statement of NTEU follows:]


221

management. They are the Merit Systems Protection Board (MSPB), the Office of Special
Counsel (OSC), the Equal Employment Opportunity Commission (EEOC), and the Federal
Labor Relations Authority (FLRA). The Office of Personnel Management (OPM) and the
Department of Labor (DOL) also possess authority to rule on certain federal employee
claims. Any two or more of these agencies may be adjudicating a "mixed case"
simultaneously. Each of these agency processes has its own time limits, procedures, and

potential for conflicting decisions on the same set of facts.

In the fall of 1993, the National Performance Review (NPR) issued its first report
which included a section titled "Improve Processes and Procedures Established to Provide
Workplace Due Process for Employees" (HRMO8). The NPR called for the President to
direct "... the MSPB Chair to establish a working group to examine and make
recommendations for eliminating jurisdictional overlaps in administrative due process cases."
To our knowledge, the directive was not issued, but the problem, or the perception of a
problem, with jurisdictional overlap persists. I understand, however, that the Congressional
appropriations conferees recently included language in their report directing the
Administration "...to develop a legislative proposal to restructure all Federal employee

adjudicatory functions and submit this plan to Congress no later than February 1, 1996."

NAPA’S INVOLVEMENT
Over the last several years of our work with federal agencies, NAPA has heard much

about the availability of multiple forums for employee disputes covering essentially the same


163

There was reference made in my statement to the Congressional
Accountability Act. That was noted as well by the first witness this
morning from GAO.

I would like to begin by expressing my sense that what you and
your colleagues did on the first day of this session in 1995 was an
extremely powerful statement about employment law reform.

Only one of the two powerful statements about labor law reform
as a result of the passage of that bill has really been talked about,
that being the expression by this Congress that Co: ss, too, is
a part of America’s workplace and certain standards of due process
should apply in the Congress as well as in other workplaces around
the country.

Another important powerful statement made by passage of the
CAA was the notion that workplace due process also could be ad-
dressed in an integrated, comprehensive way. While I won't get
into the particulars of that bill and the purpose of this hearing is
not to explore the Congressional Accountability Act in any detail,
it is worth noting that that bill creates essentially one office to ad-
dress more than a dozen of the Nation’s most important Federal
emplo ent laws.

‘arlier this week I had occasion to hear from one of the senior
management officers in the House talk about the CAA as we now
approach the effective date for the—some of those laws, and I find
it very refreshing to have one person—he didn’t do it in one
breath—but only one person who was required to explain in some
detail the requirements of statutes as diverse as the Fair Labor
Standards Act, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Warren Act, and a variety
of statutes that really span the entire horizon of employment law
regulation that is so different from my experience in the executive
branch over the 10 years I served, early on as deputy counsel at
OPM and later on as chairman of the MSPB.

You have heard already about how complicated this system is. I
think it is important to keep in mind as we look at the charts
around the room that these are charts that are designed for the
benefit, at least based on my MSPB experience, on an employee at
the no more than GS-7 level typically. I would say that is probably
the average grade level of the MSPB level appellant.

I think it would be one thing to require a public law scheme as
complicated as this if you are dealing with areas that really require
this kind of complication. In fact, the only field of law that comes
to mind while I look at these graphs in terms of parallel would be
the Tax Code and tax law.

But in those cases, typically if someone has to deal with graphs
and charts as complicated as these, they are also going to have the
resources to be able to afford the kind of counsel that will help
them work through this kind of labyrinth.

Again, it is important to keep in mind this whole system—I
should say array of systems, is designed for people who t: ically
are not in the upper brackets in our country and certainly don’t
have the resources to be able to afford counsel for any length of
time to handle this kind of complication.

Reference was also made at the beginning of the morning about
the cycle. I believe the ranking member, Mr. Moran, had noted his


12

ipagacting and Selecting Quality Applicants for Federal Employment" (April

OPM dropped it's proposal to allow the hiring Federal employees based ona
college grade point average (GPA) of 3.0 or higher (on a 4.0 scale) afier this
MSPB study demonstrated that there is insufficient correlation between GPA and
Job success to justify the policy change.

"Attracting Quality Graduates to the Federal Government: A View of
College Recruiting" (June 1988)

This study lent support to the passage, three years later, of the "Federal
Employees Pay mparability “Act” (FEPCA) of 1990 which moved Federal pay
Setting to a locality-based system. The study called for a “market-based”
approach to Federal pay, recognizing that nationwide pay increases for Federal
white-collar employees are wasteful since they result in overpaying employees in
Some geographic areas while continuing to underpay employees in other areas.

The report contributed to the decentralization of recruiting and examining
authonity within the executive branch. The overall conclusions of this study,
subsequently confirmed by follow-up studies both by MSPB and GAO, were that
Federal agencies were not effective in their recruitment efforts for a variety of
specified reasons.

Gana eetive Performance Management in the Federal Government"
uly

Status Report on Performance Appraisal and Merit Pay Among Mid-Level
Employees" (June 1981)

The Board's 1988 study, which found that the PMRS was not functioning as
intended, helped lay the groundwork far the eventual "sunsetting” of the PMRS on
November 1, 1993. The Board's 1981 baseline study of how well the merit pay
system established by the 1978 Civil Service Reform Act was working identified
Several problems that were addressed by Congress in 1984 when they replaced the
hee system with the Performance Management and Recognition System

"In Search of Merit: Hiring Entry Level Federal Employees" (September

This report contributed to OPM's abolishment of the Schedule B-PAC authority
and its replacement with more competitive selection vehicles. The report reviewed
the operation of a special excepted service appointment authority--the Schedule B-
PAC authority--that was created as an interim replacement for an competitive
examination~-the Professional and Administrative Careers. tination (PACE)--
abolished by OPM in May 1982 under a consent decree. The report identified
ways that the Schedule B-PAC authority placed merit hiring at risk.



. 27

EEOC were settled without a hearing. Employing agencies settle

many more complaints before they ever get that far.

While the trend toward settling cases has helped avoid a lot of
adjudication, there is some concern about the larger implications
of the practice. In a given employee's case, the possibility of
avoiding the potential costs of seeing the process through to the
bitter end--costs that include not just time and money but human
endurance--may be driving the inclination to settle. Federal
officials, in deciding whether or not to settle, must weigh the
cost of settling against the potential loss of more taxpayer
dollars and the time and energy that would be diverted from the

business of government.

There is some concern that policies encouraging the contending
parties to compromise on the issues may conflict with the mission
of the adjudicatory agencies to support the merit principles and
may set troublesome precedents or create ethical dilemmas for
managers.” Further, there is concern that settlements may be
fundamentally counterproductive, especially in discrimination
complaints, where settlement policies may in fact encourage the

filing of frivolous complaints.

Aan example is the occasional settlement agreement not to give
the separated employee a bad employment reference. The
supervisor who argued for the employee's dismissal may not be
allowed to give good-faith answers to a prospective employer who
calls for a reference.

15


0

This report examines the paradox that although employee training and
development is critical to restructuring Federal agencies to become more efficient
and effective, training resources are declining. MSPB concludes, however, that
the answer is not merely to allocate more resources but rather to change the way
most Federal organizations allocate the resources they have. It advocates better
identification of training needs and then better allocation of training funds.
Included in the Board's analysis is a call for better use of staff members devoted
to human resource development within the various departments and agencies.

"Entering Professional Positions in the Federal Government" (April 1994)

This report contributed to better use of the Administrative Careers With America
{ACWA) examinations as a tool available for use in filling over 100 different
professional and administrative Federal job categories at the entry-level. It also

to the debate over decentralization vs. centralization of examining authority
by contrasting the methods actually used to fill over 40,000 professional and
administrative jobs in 1984 with the methods used to fill over 26,000 similar jobs
in 1992 and demonstrating that the executive branch’is already operating in a
largely decentralized mode.

The Office of Personnel Management cited the MSPB Teper when it took action
in November 1994 to change how jobs covered by the ACWA examinations will
be filled. Consistent with the Board's recommendation, standing inventories of
candidates (based on the examinations) which were all but ignored by Federal
agencies have been abolished, and these jobs are now individually advertised and

led, with the appropriate ACWA examination being one of several tools
available to assess candidates.

“Temporary Federal Employment: In Search of Flexibility and Fairness"
eee Authe for T A A Look at Merit Is
“Expan uthority for Temporary Appointments: at Merit Issues"
(@ecember 1987)

As recommended by MSPB, OPM revised its regulations to: (a) restrict the length
time of temporary appointments and (b; permit temporary employees to obtain
iealth insurance benefits (by paying the full cost) after one year of employment.

‘The Board's 1987 report highlighted a problem with OPM's decision to expand
agencies’ authority to use temporary appointments, citing increased vulnerability
to violations of the merit system principles and adv« the continuation of
reasonable management controls. It also noted that the changes OPM made to the
regulations governing temporary appointments had changed the role of temporary
employees, and that this could fead to future problems. The Board's 1994 follow-
up report focused on alternative approaches to the use of temporary ‘employees,
with a special emphasis on ways to balance management flexibility, fairness to
temporary employees, and adherence to the merit system principles.


146

-2-

«The Board provides prompt and courteous responses to its customers.

~ Customers have free, seven-days-a-week electronic access to Board decisions, weekly
summaries of cases decided, and summaries of merit systems studies and reviews of
OPM significant actions

~  Innotices acknowledging filings, the Clerk of the Board provides appellants with a
telephone number and the name of an employee who can respond to questions.

* The Board studies topics relevant to the effective operation of the Federal merit systems
and issues timely reports.

— Recent MSPB studies and reports focus on workplace issues particularly significant to
NPR goals, such as poor performers in the Federal service, hiting restrictions in the
civil service, demonstration projects on employee benefits and leave, classification and
pay systems, and the procurement process.

‘The MSPB is an independent, quasi-judicial agency with responsibility for deciding
Federal employee appeals from significant personnel actions taken against them. As part of its
mission, the Board is responsible for conducting studies of the civil service and other Federal
merit systems and for reviewing the significant actions of the Office of Personnel Management

-30-


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20

discrimination cases alone.” But many of the other costs cannot

be pinned down, such as the direct costs accrued by employing
agencies while participating in the appeals process. arbitration
costs, the various costs tied to lost productivity in the
workplace, employees’ unreimbursed legal fees. and court costs.

All these costs either go unreported or are impossible to clearly

define and measure.

individual Federal Emplovee Appeals and Complaints, Along with

ived in FY ag

Budget Cases
Agency | (millions $) | received
MSPB 24.7 10,341¢
EEOC 19.4 16, 637°
osc 8.0 1,837°
FLRA 2.1 974
Total 54.2 28,912
roca of initial appeals and petizions for review of in

: 1 appeals

“total of requests for hearings Defore an administracive :sdge and appeals to the Commission of
agency firal decisions

‘Shese conplaines contained 3.47: separate allegations of prohibis
‘Nunser of appeals of arbitracion awards decided in FY 2394

personnel practices.

Source: OMB data, agency data, and agency estimates.

A_Time-Consuming Svstem, Especially in Discrimination Cases

Individual cases can take a long time to resolve--especially if

“Consists of legal fees and costs (1) paid by agencies in
discrimination complaints resolved by administrative procedures

and (2) paid from the Judgment Fund for settlements and judgments
arising out of lawsuits.

8


37

RECOGNIZED LABOR UNIONS OR PERHAPS MANAGERS’ ORGANIZATIONS,
ARE STAKEHOLDERS. THESE REPRESENTATIVES OFTEN HAVE THE
ADVANTAGE OF SEEING THE GENERIC NEEDS OF THOSE THEY REPRESENT
AND ARE ABLE TO ARTICULATE WAYS TO ADDRESS THOSE NEEDS. SOME
OF THESE ORGANIZATIONS HAVE ALREADY PROVIDED SUGGESTIONS FOR
CHANGING THE APPEALS SYSTEM.

FOURTH, FEDERAL AGENCIES GENERALLY ARE STAKEHOLDERS IN THIS
PROCESS. HERE, THE NEEDS OF AGENCIES VARY CONSIDERABLY
DEPENDING ON THEIR MISSIONS. FOR EXAMPLE, AN AGENCY WITH A LAW
ENFORCEMENT MISSION MAY HAVE A VERY DIFFERENT PERSPECTIVE ON
EMPLOYEE DUE PROCESS COMPARED WITH A NON-LAW ENFORCEMENT
AGENCY.

FIFTH, "MANAGEMENT OFFICIALS" OF FEDERAL AGENCIES HAVE SPECIFIC
NEEDS. A KEY NEED OF THIS STAKEHOLDER GROUP IS TO BE ABLE TO
MANAGE HUMAN RESOURCES IN THE MOST EFFICIENT AND EFFECTIVE
MANNER POSSIBLE WHILE STILL RESPECTING THE RIGHTS OF EMPLOYEES:
AS DEFINED BY THE VARIOUS EMPLOYMENT LAWS. MANAGERS ARE
INTERESTED IN ENSURING A PROPER BALANCE BETWEEN PROVIDING FOR,
DUE PROCESS AND FAIRNESS, AND THEIR ABILITY TO EFFECTIVELY MEET
THEIR MANAGEMENT RESPONSIBILITIES.


157

Page 3 - Or. Kirschstein

2.

7

The following are recommendations for improvement which were

Informal "old-boy" networks exist which result in
preferential hiring or favoritiss.

The system protects the managers and not the employees.
Sometines it is not clear where an employee should go
for help and what procedures are in place to help
employees. Personnel procedures are used by management
to aid the retaliators.

There are no stiff sanctions imposed for
discrimination. Sanctions which exist are seldom
imposed because many complaints are resolved without
culpability being established.

If employees file EEO claims, their work environment
will get worse rather than better.

Enployees filing clains are held to strict deadlines
while no deadlines are applied to O£0 or other offices
involved in processing or resolution of the clains.

Delays in resolving complaints lead to more reprisal
and retaliation against the complaining employee.

de

by participants in both sessions:

le

2.

The NIH should utilize an independent entity to process
EEO complaints.

The processing of complaints of reprisal and
retaliation should be expedited. The rights of both
the complainant and the accused should be protected.

Managers should be relieved of control over the
complainant during the processing of the complaint.

The NIH should establish positive and negative
incentives to settle complaints expeditiously.

Public and demonstrative action should be taken against
discriminators, harassers, and retaliators. Sanctions
should include’ formal reprimands, suspensions, loss of
bonuses and awards and removal from office. Accused
managers‘ and supervisors’ awards and bonuses should be
put on hold until outstanding EEO complaints against
them are resolved.


57

As the reevaluation of the civil service system goes
forward, it seems to me that, whatever changes to the system
are ultimately proposed, the discussion should be guided by
the goals of the CSRA~-a fair, neutral and timely process to
resolve Federal employment disputes and neutral oversight of
the merit systems.

Further, it seems to me that the Subcommittee’s review
should begin where the disputes originate--in the work
place. The successful resolution of workplace disputes
benefits the involved agencies and, as importantly, the
taxpayers who fund government activities. Your review of
dispute resolutions and proposals for improvement should be
a benefit to everyone

Thank you Mr. Chairman, and Members of the
Subcommittee. I look forward to working with you and your
staff. I am pleased to answer any questions at this time or
respond to any which you would like to provide.


23

rights to take their employer to court are also limited. And
even when private sector workers complain of discrimination to
EEOC, they receive less comprehensive treatment than do executive
branch federal workers, who, unlike their private sector
counterparts, are entitled to evidentiary hearings before an EEOC

administrative judge, as well as a trial in U.S. district court.

Another characteristic of the redress system for federal
employees is that certain kinds of complaints receive more
prominence or attention than others. OSC, for instance, was
established primarily to investigate cases in which federal
employees complain of retaliation against them for
whistleblowing. If OSC findings support the employee and the
employing agency fails to take corrective action, OSC's findings
become part of the employee's appeal before MSPB. OSC's
investigation is at no cost to the employee. If OSC’s findings
do not support the employee, he or she may proceed with an appeal
to MSPB as if no investigation had ever been made.'* The OSC
investigation, therefore, is not just cost-free to the employee,

but risk-free as well.

Discrimination is another kind of complaint to which the redress
system gives fuller or more extensive protection than other
complaints or appeals. Clearly, more administrative redress is
“tn addition, the employee who complains of retaliation for
whistleblowing can appeal matters to MSPB that ordinarily would
not be appealable to that agency.

li


144

THE CHAIRMAN

U.S. MERIT SYSTEMS PROTECTION BOARD.
1120 Vermont Avenue, NW.
Washington, DC 20419

December 6, 1995

The Honorable John L. Mica

Chairman

Subcommittee on Civil Service

House Committee on Government
Reform and Oversight

Washington, Dc 20515

Dear Mr. Chairman:

The U.S. Merit Systems Protection Board (MSPB) has just
completed an end of the year assessment of how well it has
done in reaching National Performance Review customer
service goals. I am pleased to report that the MSPB has
delivered on its promises to its customers despite a
significant reduction in staff and a dramatic increase in
workload.

In addition to my letter to you of December 5, 1995, I
ask that you also add the attached report on the MSPB's
customer service to the record from the November 29, 1995,
hearing on the Federal employee dispute process.

Again, I appreciate your interest in the Federal civil

service and hope to work closely with you and the
Subcommittee in the coming months.

Sincerely,

TRS. Za. e

Ben L. Erdreich
Enclosure



90

OFFICE OF THE GENERAL COUNSEL INITIATIVES
TO REDUCE THE COSTS OF CONFLICT AND IMPROVE SERVICE

To fulfill its statutory mission to administer the federal sector labor-management
relations program and foster collaborative problem solving approaches to labor-
management disputes, the OGC has developed a series of policy initiatives.

Prosecutorial Discretion Policy

Under the Prosecutorial Discretion Policy issued by the General Counsel in May of
1994, Regional Directors of the FLRA are now authorized to apply established
criteria to dismiss otherwise meritorious unfair labor practice charges when
litigation would not effectuate the purposes and policies of the Statute. The thrust
of this policy is to formulate a consistent approach to dealing with ULP charges
which are technical violations of the | however, given the nature of the charge,
or the actions of the parties after the filing of the charge to possibly cure or moot
the violation, do not warrant prosecution. This policy sets forth the criterion that
is to be followed in determining which cases should be prosecuted and which
should not.

In the past, significant resources of the FLRA were spent litigating cases which
were technical violations of the law, but were of no value to the parties, did not
improve their relationship, and most importantly, did not further the purposes of
the Statute. In the first year this policy was in effect, 75 cases which in the past
would have been litigated were dismissed. With issuance of this policy, the OGC is
insuring that our resources are concentrated on the litigation of important legal
issues, thereby enhancing the effectiveness of the Statute.

‘Settlement Policy

Simultaneous with the issuance of the Prosecutorial Discretion Policy, a new OGC
Settlement Policy was instituted. It provides greater discretion to Regional
Directors in approving settlements of unfair labor practice complaints. The aim of
this policy is to provide both a viable process and timely opportunity for labor and
management representatives to participate collaboratively in the development of
resolutions of violations of the Statute. The prior settlement approach had been
based on the issuance of a proposed FLRA settlement agreement, which the parties
negotiated from in reaching resolution of the ULP. In many cases, this resulted in
the parties negotiating with the FLRA to settle their dispute instead of with each
other. Under the new policy, rather than negotiate with the FLRA, the parties are
responsible for the settlement and the FLRA only serves to assist the parties. If the
parties are unable to resolve their own dispute, the OGC will then set the terms of
the settlement and proceed with preparation for litigation. This approach has
resulted in the development of new, creative, and often more rigorous settlements
of unfair labor practice complaints. Over the past year that this policy has been in
effect, there has been a 25% decrease in cases litigated.

3


172

the conflicting posture of serving "simultaneously both as the protector of
employee rights and as the promoter of efficient personnel management
policy."!

To correct this problem, Congress abolished the Civil Service
Commission and, in its place, established OPM as the management and policy
arm for personnel administration. The employee protection and enforcement
responsibilities formerly administered by the CSC were transferred to the
EEOC and two newly-created independent agencies, the MSPB and the
FLRA. Both the FLRA and MSPB were modeled after the organizational
structure of the National Labor Relations Board. Each was given an
independent counsel to prosecute complaints that would be heard and decided
by a collegial body composed of Presidential appointees confirmed by the
Senate. The MSPB was further fragmented when disputes between the Board
and its prosecutor about budget and resources led to the creation of a separate
independent agency, the Office of Special Counsel.

The fragmentation of these responsibilities into five separate agencies
has created confusion for employees and managers, bureaucratic overlap, and
unnecessary administrative costs. Much of the confusion and inefficiency
results from employees and managers having to respond to too many different
agencies doing related work, Under the current structure, employees who
want to appeal the way their job is classified must go to OPM. If they want
to appeal certain other types of personnel actions, they must go to the MSPB.
If they are covered by a collective bargaining agreement, the action may be
subject to FLRA procedures. For complaints of prohibited discrimination,
employees must look to the procedures administered by the EEOC. Finally,
employees who seek relief from reprisal for whistleblowing are typically
routed to the Office of Special Counsel for a remedy.

Although the Office of Special Counsel prosecutes prohibited
personnel practices complaints before the MSPB and, like the MSPB, is
charged with protecting the merit system, it is an independent agency.
Organizationally and functionally, there is no better reason for having the

| President's Message to Congress on Civil Service Reform (March 2, 1978),
reprinted in Legislative History of the Civil Service Reform Act of 1978.
Committee Print No. 96-2, 96th Cong. Ist Sess. at 736.


44

Mr. Mica. We thank you, and I will yield now to the gentleman
from Virginia, Mr. Moran.

Mr. Moran. Thank you, Mr. Chairman. I am going to followup
on some of your questions as well.

Give me an example or two of a large corporation who is recog-
nized as having an efficient and effective, fair personnel system.

Mr. BowLING. Well, we talked with Federal Express and dis-
cussed with them how they go about doing it. They have a fairly
clear process laid out. It is a several-step administrative process
that reaches decisions on individual cases.

Mr. MoraN. Federal Express is on strike right now. I don’t think
that would be an ideal example.

Mr. BOWLING. They are indeed on strike. We talked to them
about some other issues, other than that.

Mr. Moran. Maybe you could give us another one that is not on
strike.

Mr. BowLinG. We also have talked with AT&T and discussed
with them some of their approaches.

Again, this is a difficult time in the private sector, as well as the
Federal sector, for employees. There is a lot of downsizing going on,
and if you are going to look for a place that doesn’t have some em-
ployee concerns, there probably would not be a great number.

But the systems that they have put together are generally re-
garded as simpler and quicker in their resolution of issues but still
maintain several layers of review for the cases which are not re-
solved appropriately at the earlier levels to be looked at again by
senior agency officials, senior management officials.

Mr. Moran. So they do have an appeals process in all of the
large corporations?

Mr. Bow ina. I wouldn’t say all of them, but yes, it is common
to have an appeals process within the agency which would allow
them to raise cases to higher levels.

Mr. MoraN. They don’t have any mixed review though, of course.

Mr. Bowne. No.

Mr. Moran. The—we want to get at any possible restructuring,
but we may want to hold off until we hear from the next panel.

With regard to these frivolous cases—and it would seem that
some portion of complaints are—could be characterized as frivo-
lous—there are so many now, and there is so—and there are dis-
proportionate numbers in some agencies versus others that don’t
seem to bear any correlation to anything other than that particular
agency has a better understanding of the appeals process.

One way we might do it, which seems to be the most rational,
would be to have a triage process where perhaps the ALJ can sim-
ply review cases to determine whether they are—they appear to be
frivolous at the outset and dismiss them.

If we don’t do something like that, as far as I am concerned, I
think there needs to be a built-in disincentive to push cases all the
way, whether it is some proportion of the administrative cost of
processing them or whatever. The nicer way to do it would be sim-
ply to have a screening process at the very outset.

Which agencies did you find were the worst in terms of examples
of exploiting the system?


85

if either of these are the “goals” motivating our attention to reform, it’s not clear
how much can be gained by consolidating the FLRA with other agenci My point
is not that there are no reasons to reform our dispute resolution system (including
its structure). To the contrary, | am confident we can make it better. | suggest,
however, that any effort to improve this system be aimed more clearly and
effectively at the goal of reducing the costs of federal workplace conflict. This,
obviously, is a more ambitious challenge. But the benefits to be realized are real.

These “costs of conflict” bagin with what is spent on litigation and adjudication --
reducing this is highly desirable. They also include what we lose when problems
are not quickly or adequately resolved — because this prevents managers, unions
and the employees they represent from spending time and resources on
accomplishing the agency's work and providing high quality customer service to
the taxpayer.

Reforms designed to achieve this goal will, if they succeed, produce important
benefits. But such reforms will require something different than simply moving
boxes around on an organizational chart.

THE GOAL OF REDUCING THE COSTS OF RESOLVING
FEDERAL WORKPLACE DISPUTES

Over the last two years, the FLRA has implemented three strategies to reduce the
costs of conflict in the federal workplace, and our efforts are beginning to show
results.

We are training federal workers -- managers and union reps -- in interest-based
problem-solving skills and other alternatives to the traditional adversarial approach,
to help them resolve conflict themselves, without a third-party. When they can’t
resolve their problems themselves, we are intervening in their disputes to help.
And where resolution requires adjudication, we are taking steps to bring greater
clarity and stability to the law, so that it can serve as a more dependable guide in
‘the future.

The FLRA’s responsibilities in the representation area serves as a paradigm that
illustrates these three strategies at work — particularly important at this time
because questions about which employees are in a bargaining unit and which union
an agency must bargain with proliferate when government is reorganized and
downsized. We're using a three-pronged strategy to tackle these questions.

First, the FLRA is teaching parties to resolve some of these questions themselves
through interest-based bargaining. Last year we conducted several hundred of
these training programs for thousands of federal employees nationwide. Second,
we're intervening in their disputes when they can’t do it alone. For example, after
over 65 separate representation petitions were filed concerning the representation

7


176

The new FERB would be established as an independent agency,
composed of three members and a General Counsel appointed by the
President with the advice and consent of the Senate. To ease transition, all
current members of the MSPB and FLRA would be “grandfathered” into the
new agency as members to fill the remainder of their terms. Qualifications
for members would be similar to those that currently apply to the MSPB and
FLRA and a Chairman would be chosen from the members. The powers of

the new multi-headed agency would generally follow those of the MSPB and
the FLRA.

The functions of the current Special Counsel and the General Counsel
of the FLRA would be consolidated as a new FERB General Counsel
position, but the incumbents of the former offices would be allowed to fill out
the remainder of their terms. The authority of the General Counsel would be
modeled on that of the Office of Special Counsel and the FLRA General
Counsel.

The FERB would continue to use existing headquarters and field office
structures. The present offices of the MSPB and FLRA, currently in the same
cities, could be consolidated along with the two regional offices of the OSC.
The Federal functions now handled in 50 EEOC field offices would also be
incorporated. Over time, as the processes become more uniform and
integrated, the number of field and regional offices could be reduced.

The FERB would establish uniform procedures, including time limits,
filing procedures, and other requirements for all cases. The General Counsel
would be responsible for investigating and prosecuting cases within the new
agency's jurisdiction. As the FLRA currently does, the new agency would
delegate responsibility to the General Counsel to handle representation
matters. The General Counsel would also provide advice on prohibited
political activities and labor-relations issues.

A small corps of administrative law judges (ALJs) would be used to
hear the most complex cases. The bulk of the workload would be handled by
attomeys, paralegals, and employees trained in altemative dispute resolution.
ALJs would issue final, rather than recommended decisions. Review of
decisions by the three member Board would be narrow and only legally
important cases would be considered. Decisions of the Board would be final


212

back in the workplace. Again, especially if it is the result of an af-
firmative defense and the employee has, in fact, been proved to be
Jess than a fully successful performer, we don’t think that that
should happen, because it does set a tenor in the agency that you
can’t get rid of people even if they are poor performers because
they will book you with the other affirmative defenses that are
available.

That is why we feel so strongly that that has to be separated so
that performance is dealt with as performance, no matter what.

Again, if a pattern developed or even looked like a pattern of dis-
crimination on a handicapped basis or whatever else was develop-
ing, I think the EEOC or some arm of this independent court
should be in there in a real hurry to stop that.

Should managers be disciplined? In some cases agencies do dis-
cipline managers. In some cases I have heard of what people have
said are outrageous examples where agencies have not disciplined
managers, but the agency certainly has the authority to discipline
the managers.

I really think that an employee today in any agency gets looked
at very hard if he or she loses a case where he or she was the dis-
criminating official. I really—they really undergo a lot of scrutiny
by their agency, because the agency doesn’t want to live with that
kind of thing.

So there are disciplinary cases taken. In some of them the agency
just flat disagrees that this employee did anything wrong and have
not taken action, and the civil rights community has become out-
raged by that. But I don’t think there should be an independent
system to do that. I think the head of the agency is responsible for
that agency, has to make the decision whether or not to discipline
the person.

aybe a requirement that they look at the individual cases—the
head of the agency look at the individual case every time someone
is found guilty of discrimination or to have discriminated would
make sure that none of them would slip through the cracks.

Mr. Mica. Mr. Wolcott, would you like to respond?

Mr. Wo.cort. Yes, I would like to say there should be clearer
sanctions for managers who are found to discriminate, and there
are procedures in the Federal Employee Fairness Act that would
beef up the ability of agencies to take that kind of action. I think
it is warranted.

Mr. Mica. One of the suggestions—maybe you have heard some
suggestions—is that either a nominal fee be charged or the em-
ployee be responsible for some of the costs in appeals or complaints
that are filed. Does anyone think that that should be instituted?

Mr. SHaw. I think the “loser pay” concept, especially involving
the Federal Government, essentially says it you can’t afford to
bring an action against the Federal Government.

The Federal Government has a much higher responsibility than
a private employer does to be fair, to make sure that an employee's
rights are protected, just by the nature of the fact they are the Fed-
eral Government, and the Constitution and the laws really con-
strain them, and should constrain them.

Mr. Mica. So, no?


202

negotiated grievance procedure to resolve the entire range of
employment issues, from an individual challenge to a performance

appraisal to a dispute over an agency-wide policy. The proc

8
is efficient and it is fair.

NTEU has also adapted consensual dispute resolution
procedures to other contexts where the statutory procedures do
not work effectively. For example, we have agreed with several
agencies that we will utilize hybrid mediation-arbitration
procedures in contract negotiations. These private procedures
help us to avoid the cumbersome and time-consuming procedures of
the Federal Services Impasses Panel and the FLRA’s negotiability
process.

NTEU has also been in the forefront of developing quality of
worklife and Partnership programs with agencies. These programs
bring dispute resolution full circle. In these forums, important
issues are addressed, the parties’ interests are served, and
decisions are often made before the issues even become disputes.
That is true efficiency.

The key to all these successes is that the parties are
engaged to resolve their own disputes to the greatest extent
possible. The focus is on finding an appropriate resolution to
the problem at hand, not on legalistic rights and abstract
standards.

Now, let me turn to some of the problems with the CSRA
dispute resolution process. The most obvious problem is that

some of the innovative, "expedited" procedures developed under


62

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86

rights of over 40,000 employees in an agency reorganized within the Department
of Defense, the FLRA’s General Counsel worked with the parties to reach practical
legal solutions to their problems. Over 50 of the petitions were withdrawn as a
result and the parties were able to proceed quickly to an election on the rest.

Third, we're taking steps to simplify our regulations and bring greater clarity and
stability to our law. Thus, we've recently proposed revamping our representation
regulations by, for example, cutting the number of petitions from 7 to 1, expediting
election procedures and integrating alternative dispute resolution into the process.
Another example is in case law: after soliciting and considering party and amicus
briefs, the Authority set forth a new approach for determining successorship in the
federal sector. This is particularly important so managers and employees have a
clear understanding of their bargaining responsibilities after an agency is
reorganized,

In addition to the representation area, we
into action in the negotiability process. We’re integrating alternative dispute
resolution techniques into negotiability disputes; attempting to lay out clearer legal
doctrine that will guide the parties’ negotiations when they sit down at the table;
and to reduce the procedural problems that delay resolving duty to bargain
questions. Chair Bolden’s testimony highlights how we are reducing the costs of
conflict in the bargaining impasse resolution area. Indicators of success here
include the 12% reduction in cases over the last year where the Panel was required
to mandate the terms of a collective bargaining agreement, because the parties
could not reach agreement them:

also working to put these strategies

We are also working to apply these strategies in the unfair labor practice area. The
General Counsel’s testimony details some of the results of these strategies.
Indicators that they are working include the 28% reduction in unfair labor practice
charges filed over the last two-years, as well as the high percentage of managers
and employees who say that labor-management collaboration is improving their
relationships. We also are encouraged by the early results from our pilot
settlement project for cases before our Administrative Law Judges: in the three
months since this pilot started, the parties have agreed to settle instead of go to
trial in 76% of the cases where our settlement attorney has intervened to assist
them. The thirty-two trials that thereby became unnecessary translate to money
saved for the litigants and for the FLRA (and therefore, for the federal taxpayer),
and a resolution likely to be more durable because it was agreed to rather than
imposed.

This is just a sampling of the ways the FLRA is putting these three strategies to
work to reduce the costs of conflict between managers, unions and the employees
they represent. Our experience gives me confidence that if we set our sights on
reducing the costs of federal workplace disputes, we can increase the


121

REMEDIES

Part 1614 leaves unchanged part 1613's standard that full relief should be provided to an
individual when discrimination is found unless the record contains clear and convincing evidence
that the individual would also have not been selected even in the absence of Discrimination. It
is important to distinguish this regulation from the Supreme Court's decision in Price
Waterhouse v, Hopkins, 109 S. Ct. 1775 (1989) which held that an employer can avoid liability,
and hence any relief, in a mixed motive case upon showing by a preponderance of the evidence
that the same determination would have been made even absent discrimination.

Part 1614 provides that interest on back pay may be awarded to federal applicants or employees
‘who prevail in discrimination claims, and that while attorney's fees awards provisions shall apply
to allegations of discrimination or retaliation prohibited by Title VII and the Rehabilitation Act,
they do not apply under ADEA. The Civil Rights Act of 1991 amends section 717 of Title VIL
to provide for the payment of interest on back pay; this waiver of sovereign immunity authorizes
EEOC to award interest in Title VII and Rehabilitation Act cases.

1m


COMPARATIVE STUDY OF COMPLAINTS AND CHARGES OF DISCRIMINATION

195

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1,247,182

1,283,972

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1983
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1986
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1909
1990
2992

2992

Management, Central Personne) Data Pile 1992,

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(Oob) Bureau of Labor Statistics 1993. The DoL measures

OPM and EEOC reflect statistics for women and Afro-Americans.

ainority category for this study.
OF More Employees, 1982 Through 1990", Office of Communications

taken from
included in the

Summary for Agencies With 500

and Legislative Affairs, EOC.

ities as Afro-Americana, thus, £!
lepanics are not

Asian Americans and Hi

#13 Federal Agency Trend

#11 U.S. Office of Personnel

ory

Page 4


124

Mr. ERDREICH. I can also tell you that in the last 2 years, in one
category alone, postal cases, we had approaching, again off the top
of my head, about 2,000 cases alone that related to the effort of the
post office to reorganize, and cases filed with us and actions we
took that generated about 2,000 cases, a little bit better than that.
I will get those to you after the hearing, Mr. Chairman.

[The information referred to follows:]


31

AN_OPPORTUNITY TO IMPROVE THE WAY GOVERNMENT OPERATES

Today, in the face of tight budgets and a rapidly changing work
environment, the civil service is undergoing renewed scrutiny by
the administration and Congress. In the brcadest sense, the goal
of such scrutiny is ‘to identify ways of making the civil service
more effective and less costly in its service to the American
people. With so many facets of the civil service under review--
including compensation and benefits, performance management, and
the retirement system--no area should be overlooked that offers
the opportunity for improving the way the government operates.
To the extent that the federal government's administrative
redress system is tilted toward employee protections at the
expense of the effective management of the nation's business, it

deserves congressional attention.

This concludes my prepared statement, Mr. Chairman. TI would be
pleased to take any questions that you or other Members of the

Subcommittee may have.

(966669)

19


156

Page 2 - Dr. Kirschstein

The Task Force met in two sessions on August 10, 1993 to receive
comments and perspectives of the NIH community on issues related
te the reprisal and retaliation that might follow the filing of @
discrimination complaint or any action otherwise opposing an act
of discrimination. The open session vas held in Masur Auditorium
of the Clinical Center from 8:00 a.m. until 12:45 p.m. Twenty
eight persons participated in that session. ‘The closed session
followed immediately in the Medical Board Room. Nineteen
individuals made presentations during that session. To focus the
discussions, participants were given a set of seven questions to
address. (See Attachment C for the questions regarding reprisal
and retaliation).

The sessions were useful from a number of perspectives. First,
they gave the employees the opportunity to “tell their stories”
or to get their concerns “off their chests." In that regard, the
sessions were cathartic, although painful because of the
intensity of emotion and sonetines desperation of the
participants. Second, the sessions demonstrated that the NIH is
genuinely interested in the employees‘ plight and gave them
renewed hope that some action would be taken to alleviate their
concerns.

In addition, the sessions helped to outline from the employees’
viewpoint the types of activities which constituted reprisal or
retaliation. For example, after complaining about discrimination
some employees were made to pay their own travel expenses to
attend meetings or their training o1 travel opportunities were
decreased or eliminated. Others were refused overtime work or
their work load was substantially decreased and they were
ostracized, sometimes physically, from participation in the
norpal workings of their office. Others were detailed to
diftecent jobs where they vere given little or no work. Most
commonly, employees were subjected to increased vork
requirements, special leave restrictions, performance improvement
plans, and negative performance evaluations in apparent efforts
to discredit their abilities.

Several important themes or perspectives surfaced from both
sessions

1. The Office of Equal Opportunity (0£0) is not an
adequate mechanism for dealing with discrimination
claims generally or reprisal or retaliation in
particular. 0OE0 is a tool of management without real
power to resolve discrimination claims. The system 1s
adversarial from the start and not user-friendly.
Delays and impediments in the process are meant to
exhaust victims both emotionally and financially.



179

Mr. Mica. Thank you, and we will get back to questions.

At this time I recognize Jerry Shaw, general counsel of the Sen-
ior Executives Association.

Mr. SHAW. Mr. Chairman, thank you for the opportunity to be
here.

The proposal that SEA is making today is one that had been
unanimously adopted by its 15-member board of directors from 15
different ncies, The efficacy has been confirmed by our survey
results and by our experiences.

In essence, we propose a single organization, but we do not pro-
pose that that organization be one which is an executive agency,
or the normal executive agency. We propose an Article 1 court be
established.

It would be similar to the Tax Court, which is an Article 1 court.
It would have independent judges that were appointed. It would
have small case procedures to get rid of the minor matters, and the
chief judge has the authority to appoint individual trial judges at
his discretion for as long as he determines it to be necessary.

It has a whole bunch of advantages, but the primary reason that
we propose the court is because one of the biggest problems is the
overlap between the EEO system and the other systems. The huge
amount of cases that arise, that cause problems in the EEO overlap
area, surprisingly enough, it is not race or sex discrimination that
is the most frequently raised EEO defense, it is handicap discrimi-
nation. That has just Fon like Topsy over the last couple of
years. The points would be consolidated, and employees would be
able to get their EEO as well as their other appeal rights dealt
with in this counsel court.

In the absence of an independent court, employees are still going
to be able to go to district—Federal district court after they ‘have
completed this court or completed the appeals process in the Gov-
ernment just by raising an EEO issue.

So you are not doing away with the finality by establishing an
independent executive branch agency or an executive branch agen-
cy that handles all of them, because you will still have the mul-
tiplicity of district courts, multiplicity of forum shopping in appeals
to the various Federal circuit courts of appeal.

Our proposal would involve that program by establishing this
one court that only handles Federal employee appeals problems,
that are made up of judges that are nominated by the President
and confirmed by the Senate for fixed terms, whatever those terms

ight be. The Tax Court is 15 years; it could be less or more.

it has the flexibility to assign special trial judges to handle spe-
cific things, to get rid of others, but it gives finality to not only the
adverse action, not only the Federal labor relations or labor rela-
tions problems, it gives finality also to the Federal employees’ EEO
problem.

And the appeal, the only appeal to the judicial system that would
be available under our proposal, is to the Court of Federal Appeals,
U.S. Court of Federal Appeals—excuse me, U.S. Federal Circuit
Court of Appeals, which would have jurisdiction over all appeals
from that court, which would allow the Federal circuit court to es-
tablish, along with our Article 1 court, a sustainable and a clear
body of law that would control all these actions and would actually


7
Mr. Mica. Welcome. If you have any remarks, we would welcome

em.

Mr. CLINGER. Thank you very much, Mr. Chairman.

I just want to commend you for holding these series of hearings
and especially this one. This is, indeed, a convoluted, arcane, and
very complex system that we are looking at. It deserves to be
looked at in depth and very thoroughly.

In my former life I was a Schedule C political employee. I dealt
with some of these problems and know just exactly how difficult it
is to work within the Federal system and to accomplish the kinds
of change that we need to be able to accomplish in a rapidly chang-
ing world and have a work force that is capable of addressing those
very complex needs.

this is an important hearing, and I am delighted to be here
and to be able to listen to some of these witnesses. Thank you very
much for holding it.

Mr. Mica. I thank the chairman and the gentleman for his re-
marks, and we will proceed with the hearing at this time. We have
our first two witnesses and our first panel: Mr. Timothy Bowling,
Associate Director of the U.S. General Accounting Office, and Mr.
Allan Heuerman, Associate Director of the Office of Personnel Man-
agement.

As is customary, gentlemen, if you will stand, I will swear you
in. Please raise your right hand.

(Witnesses sworn.]

Mr. Mica. Welcome again. Both of you have been before our sub-
committee. It is nice to see you again. We have the question of
streamlining the Federal appeals process. We will call on Mr. Bowl-
ing first from the GAO for your comments, and if you have a
lengthy statement, as you know, we will be glad to make it
of the record, and if you could summarize your remarks into about
5 minutes apiece, we would appreciate that.

Thank you.

STATEMENTS OF TIMOTHY BOWLING, ASSOCIATE DIRECTOR,
U.S. GENERAL ACCOUNTING OFFICE; AND ALLAN HEUER-
MAN, ASSOCIATE DIRECTOR, OFFICE OF PERSONNEL MAN-
AGEMENT

Mr. BowLING. Thank you, Mr. Chairman. I will do so.

I am pleased to be here today to discuss the administrative re-
dress system for Federal employees. As more voices are heard call-
ing for streamlining or consolidating this system, I would like to
address the question of how well the system is working and wheth-
er, in its present form, it contributes to or detracts from the fair
and efficient operation of the Federal Government.

I have basically three points to make. First, because of the com-
plexity of this system and the variety of redress mechanisms it af-
fords, it is inefficient, expensive, and time consuming.

Second, because the system is so strongly protective of the re-
dress rights of the individual workers, it is vulnerable to employees
who would take undue advantage of these protections.

Third, alternatives to the current redress system do exist. These
alternatives in the private sector and elsewhere may be worth fur-
ther study as Congress considers modifying the Federal system.


206

Mr. Mica. We thank you, Mr. Wolcott, for your testimony, and
the other panelists.

T have a couple of questions about the proposal to create a single
agency, and I guess Mr. Levinson, Mr. Fischer, and Mr. Shaw pro-
pose a single agency.

Do you believe that there is a danger that a single agency would
be so swamped with appeals that it would no longer be able to take
all of the appeals and dle them in an expeditious manner?

Also, Mr. Moran had mentioned that we may be going through
cycles here and creating—bringing things back together that were
functioning independently very well and just be going through a cy-
clical phase here. What is your opinion of this, Mr. Levinson? Mr.

‘ischer.

Mr. LEVINSON. Mr. Chairman, on the first point, I think it is very
important that we not be intimidated by sheer numbers. The num-
bers themselves can tell different stories based on who is interpret-
ing them, as we have seen already this morning, and any success-
ful effort to reform the system is going to have to encompass a
mandate that there be some proct reform to the way cases,
disputes, complaints, charges, if you will, are defined and how they
are processed at the immediate intake stage.

It is very possible, based on the numbers that we have seen from
these various agencies over the last few years, we could be looking
at an enormous case intake number.

On the other hand, does that perhaps tell us that, based espe-
cially on the number of dismissals for nonmeritorious causes or for
procedural problems—I remember at the MSPB, for example, hun-
dreds and hundreds of cases a year are filed with the board by em-
ployees and former employees who don’t have appeal rights. That
winds up being a part of the case processing numbers.

But the system is so obscure that many Federal employees don’t
understand the rights that they enjoy now, and what this does is,
it triggers a certain percentage of case filings and complaints and
charges by people who, in fact, don’t have a dispute that can be
heard under the current system.

So these numbers by themselves really don’t tell us any story,
and it is important to look at the system structurally as a whole
and not be driven by any particular part of it.

On the cyclical question, as I made reference to in my statement
before, I don’t believe that one could honestly chart a cycle to what
we have seen over the last 20 years. There were very specific rea-
sons why CSRA wound up the way it did.

There was concern that the Civil Service Commission had not
been able to apply civil rights law properly. At that time, the law
itself as it applied to Federal employees was only a few years old.
The labor management relations statute, it had been cited, needed
a separate statutory foundation.

That is not so much a cycle of centralizing and decentralizing but
of workplace due process being enhanced over the last couple of
decades to a point where we now, as we approach the millennium,
have a renewed or a different sense of what due process in the
workplace is all about.

At this point, to make it work effectively, we need a more holis-
tic, integrated approach to the concept itselt That can only be done


189

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147

December 3, 1995

The Honorable John L. Mica (R- Fl)
Chairman, U.S. House of Representatives
House Civil Service Committee

Cannon Office Building, Room 338
Washington, D.C. 20515

Dear Congressman Mica:

Please find enclosed a submission for the record of your November
29, 1995 House Civil Service Committee hearings on Federal Employee
Appeals System Reform. I hope that you will include this point of
view in the Congressional Record of these proceedings and I hope
that your committee will consider the content of this testimony in
the design of their final reform package.

Sincerely,

HoSG.PYP

Henry Stevenson-Perez, M.D.
11223 Valley View Ave.
Kensington, MD 20895

ce:

Congressman Albert Wynn (D- Md)
Congressman Steny Hoyer (D-Md)
Congresswoman Connie Morella (R-Md)
Congressman Lincoln Diaz Ballard (R-Fl)


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46

Can you comment on that?

Mr. BowLING. Well, certainly we are not opposed to settling cases
appropriately. I think the point is, rather, that the pressure of the
vast number of cases that are being brought now and the fact that
they can drag on for a number of years and cost a lot of money for
the agencies and for the taxpayers puts perhaps an undue pressure
on the agencies to settle cases even when they may have a good
case themselves and be able to win the case on its merits, and
that——

Mr. Moran. It is just not worth the cost and the time?

Mr. Bow LING. Exactly.

Mr. Moran. And disruption?

Mr. BowLInNc. Exactly.

There have been instances like that brought to our attention. I
think that is one area that could be addressed simply by having—
reducing the number of cases that come through the system and
streamlining the process itself.

Mr. Moran. OK. I had some questions for OPM, but they—I
think OPM’s responses might have been a little more predictable,
and so I didn’t ask them. But I appreciate your being here. Thank
you.

Mr. Mica. I thank the gentleman, and I yield now for questions
to Mr. Bass.

Mr. Bass. Thank you very much, Mr. Chairman. I just have a
very brief follow-up to Mr. Moran’s last question about settlements.

I didn’t—I am not sure, Mr. Bowling, whether you indicated
whether GAO was planning to undertake any kind of review of the
settlement agreements to determine whether or not too many set-
tlements are undermining the merit systems.

I think Mr. Moran made an allusion to the fact that maybe they
should be—instead of settling, you should draw them out to their
logical conclusions. Is this a real problem? Is the settlement, the
number of settlements, a real problem, and is it undermining the
merit system, and does it deserve some further review?

Mr. Bow Linc. I think, as I was indicating, the number of settle-
ments themselves is not necessarily a problem in that I would not
argue that people should settle less necessarily.

I think the problem could be solved, rather, by simplifying,
streamlining the system and dealing with more cases early on in
the process to effective ADR, alternative dispute resolution, so that.
you don’t have a backlog, such a pressure of cases and such a proc-
ess that continues for such a lengthy period.

That is, I think, what brings undue pressure to settle—to have
the wrong settlements or settle sometimes when merit would not
indicate that it would be the wisest course.

So I think solving the problem at that end rather than just arbi-
trarily limiting the number of settlements would be more appro-
priate.

Mr. Bass. Thank you very much, Mr. Chairman. I yield back.

Mr. Mica. I would like to yield now to the gentlelady from Mary-
land, Mrs. Morella.

Mrs. MORELLA. Thank you, Mr. Chairman.


208

dled Federal employee appeals cases and that handled most of
these processes.

Now, President Nixon had just signed the Executive order giving
the Federal Labor Relations—establishing the Federal Labor Rela-
tions Program, where there had not been one before.

In 1976, I was made a division director of 65 attorneys, and they
were not all in Washington, DC, they were around the country, but
we had 65 attorneys dling Federal employee appeals cases,
handling labor arbitration cases, handling unfair labor practices,
handling all the cases where before we had four.

I am not saying it is good, bad, or indifferent, but it gives you
an idea of the magnitude of the effort and the dollars that agencies
put into dealing with all these things.

Any consolidation in a single agency is going to reduce the neces-
sity for these agencies, all the rest of the agencies, to have this
multiplicity of individuals working in it. That was just the attor-
neys. That didn’t count the EEO specialists, labor relations special-
ists. That didn’t count all the rest of the people involved in the sys-
tem and that remain involved in the system so far as I know.

I think it could have some real dollar impacts across the Govern-
ment, not just in the agency that is adjudicating it, which, by the
way, don’t ever forget my proposal is a Title I, Article 1 court—
can’t let that one go.

Mr. Mica. Thank you.

Mr. Wolcott.

Mr. Wotcortr. Mr. Chairman, I would like to say that NTEU
does not think there would be an advantage to consolidating the
different agencies, that the different expertise that they bring to
bear to these issues is sufficiently distinct that there wouldn’t be
an advantage.

Simply moving the boxes around on the board isn’t going to real-
ly save particular amounts of money or make things more efficient.

Certainly in the private sector all these different issues are han-
dled by different entities, and I don’t think there is any reason why
it shouldn’t be an advantage to do it differently in the Federal Gov-
ernment.

Mr. Mica. My first question dealt with structural change, and I
think Mr. Shaw said we have to also look at the function.

One of the things that concerns me is, just looking at the statis-
tics, and the 10 to 1 ratio, or 5 to 1 ratio, whatever it is, Mr.
Levinson, Mr. Fischer, maybe Mr. Shaw, what can we do to de-
crease the number of cases here, appeals and complaints? Or is it
just endemic to the Federal workplace that you have so many of
these cases filed?

Mr. LEVINSON. It is possible that we have an overly formalistic
system that has probably been encouraged by these different struc-
tures that we have put in place for every shape, manner, and form
of complaint separated out in very discrete categories.

So I think one of the additional benefits of trying to bring a syn-
thesis to this is to force people to think about whether there are
peculiar aspects either to the Federal workplace or to the way it
is managed that bring certain kinds of disputes to the workplace
more often than we see in other sectors of the workplace.


oe
STATEMENT
OF
DAVID GAMES:
PRESIDENT
OF THE
NATIONAL ASSOCIATION OF POSTMASTERS
OF THE UNITED STATES
BEFORE THE
SUBCOMMITTEE ON CIVIL SERVICE
OF THE
HOUSE GOVERNMENT REFORM AND OVERSIGHT COMMITTEE
ON NOVEMBER 16, 1995

(703) 683-9027
Fax: (703) 689-6820


6

wan Mics. I will yield now to the gentlelady from Maryland, Mrs.
oreila.

Mrs. MORELLA. Thank you, Mr. Chairman. I want to thank you
for calling this hearing, and I want to commend you on the experts
that you have assembled to testify today.

During these hearings on civil service reform, we have heard
over and over again about how the appeals system in government.
needs to be changed. We heard it from the unions, the associations
that represent managers and executives, officials of the administra-
tion, and Members of the House. Those discussions, or exchanges
in some cases, provided good information, and today we have the
opportunity to get more definitive information.

‘he reasons for wanting to streamline the system differ, but the
goal of streamlining seems to be consistent across the board. This
is not change for change’ sake, this is change to tame a system
so it better serves the Government, executives, and managers, and

employees.

“Fe leral employment disputes generally take too long and cost
too much to resolve and, in some cases, are nct resolved in a man-
ner that promotes the efficiency of government service.” That state-
ment was made by Bruce Moyer, president of the Federal Man-
agers Association.

“The fact is that the real Problem preventing agencies taking
performance actions is the ability of employees to thwart such ac-
tions by filing complaints against their supervisors and managers
with numerous agencies.” it statement was made by Carol A.
Bonosaro, president of the Senior Executive Association.

“Where poor performers are allowed to remain on the job, it is
because of timid or incompetent managers who either will not or
cannot root them out. If we are really serious about this issue, one
of the areas we should be looking at more closely is the length of
time it takes for the appeal of performance-based removal to wind
its way through the administrative and judicial thickets. An em-
ployee whose removal case was heard by an arbitrator or the
MSPB has received a full and fair hearing consistent with due
process rights.” That statement was made by John Sturdivant, na-
tional president of the American Federation of Government Em-
ployees.

“There are opportunities to streamline this somewhat unwieldy
structure and therefore direct the administration to develop a legis-
lative proposal to restructure all Federal employee adjudicatory
functions and submit this plan to Co. ss no later than February
1, 1996,” concluded the Treasury-Postal appropriations conferees.

So clearly these different purposes, some-based on performance,
some based on too many layers, others based on alleged abuses of
the complaints process, will lead to change, and that is what this
hearing is all about. .

So I look forward to hearing from the panels, and, again, I thank
you, Mr. Chairman, for calling this hearing.

Mr. Mica. I thank the gentlelady. .

I see that we have the chairman of our full committee with us
this morning, the Honorable William Clinger, back from floor bat-
tle.

Mr. CLINGER. A losing battle.


40

REGULATIONS TO DEVOLVE MORE AUTHORITY AND DISCRETION UPON
INDIVIDUAL AGENCIES TO MEET THEIR PARTICULAR NEEDS. WE BELIEVE
IT IS EXCEPTIONALLY IMPORTANT THAT THE REMAINING REGULATIONS,
WHICH ARE NECESSARY TO MAINTAIN AN ORDERLY AND EFFECTIVE CIVIL
SERVICE, BE IMPLEMENTED AND INTERPRETED UNIFORMLY BY
ADJUDICATORY AGENCIES TO PROTECT OUR CIVIL SERVICE AND ITS
EMPLOYEES FROM ACTIONS BY EMPLOYING AGENCIES AND DECISIONS BY
ADJUDICATORS THAT ARE INCONSISTENT WITH LAW.

THIS SPECIAL OPM ROLE PRINCIPALLY MANIFESTS ITSELF IN APPEALS OF
ADVERSE ACTIONS AND PERFORMANCE-BASED ACTIONS. EMPLOYING
AGENCIES POSSESS NO POWER TO APPEAL ADVERSE ERRONEOUS
DECISIONS OF MSPB AND ARBITRATORS ACTING IN ITS STEAD AS PART OF
A GRIEVANCE PROCEDURE. OPM, AND OPM ALONE, POSSESSES
AUTHORITY (ALTHOUGH VERY LIMITED) TO SEEK JUDICIAL REVIEW OF
ADVERSE DECISIONS OF MSPB AND ARBITRATORS TO PROTECT THE
INTERESTS OF THE GOVERNMENT AND THE CIVIL SERVICE AS A WHOLE
WHEN THE DIRECTOR OF OPM DETERMINES THAT AN ERRONEOUS
DECISION WOULD HAVE A SUBSTANTIAL IMPACT ON CIVIL SERVICE LAW.

ANY CHANGES TO THE APPEALS SYSTEM NEEDS TO PRESERVE AND

POSSIBLY STRENGTHEN THIS ROLE. CURRENTLY, THE U.S. COURT OF

1


120

‘A “mixed” case involves a personnel action appealable to the Merit Systems Protection Board
(MSPB) where the employee has raised an allegation of discrimination. An aggrieved person
may initially file a mixed case complaint with an agency under part 1614 or an appeal on the
same matter with the MSPB pursuant to 5 C.F.R. 1201.151, but not both. Individuals with
mixed case complaints receive hearings on those complaints before MSPB and not EEOC.

The regulations also address those situations where MSPB determines that a case is not within
its jurisdiction, in effect "unmixing” the complaint. When a mixed case appeal is dismissed by
the MSPB for jurisdictional reasons, an individual is allowed to file an EEO complaint provided
the individual obtains counseling within 45 days from the notice of MSPB’s dismissal. If a
person files a timely appeal with MSPB from the agency's processing of a mixed case complaint
and it is dismissed by MSPB for jurisdictional reasons, the agency shall give the individual the
right to elect between a hearing by an administrative judge or an immediate final decision by the
agency.

Individuals who have received a final decision from MSPB on a mixed case appeal or on the
appeal of a final decision on a mixed case complaint may petition EEOC to consider that
decision. If EEOC disagrees with MSPB, then the decision is sent back to MSPB to reconsider
its decision in light of EEOC’s decision. If MSPB disagrees with EEOC’s decision then the case
is referred to a "Special Panel” established under the Civil Service Reform Act.

AGE DISCRIMINATION IN EMPLOYMENT ACT

When an individual has not filed a notice of intent to sue but has pursued a complaint through
the administrative process, the courts have split on the issue of the correct statute of limitations
applicable to ADEA lawsuits by federal employees. EEOC believes that the limitations period
applicable to civil actions under Title VII should be borrowed for federal sector ADEA lawsuit
‘That period is now 90 days as a result of the Civil Rights Act of 1991. Besides applying to Title
VII, it also applied the 90-day period to suits brought under sections 501 and 505(a) of the
Rehabilitation Act, and ADEA suits brought by private sector and state and local government
employees who have filed a charge with the Commission under ADEA.

‘Those persons who elect to use the notice provision as the prerequisite to suit in U.S. district
court must give EEOC not less than 30 days’ notice in writing of their intent to file such an
action. Such notice must be filed within 180 days of the occurrence of the alleged unlawful
practice.

Part 1614 provides that a complainant exhausts administrative remedies under the ADEA either
(1) 180 days after filing a complaint if the agency has not issued a decision and an appeal has
not been taken, (2) after a final decision by the agency, (3) 180 days after filing an appeal with
the EEOC, if EEOC has not issued a decision, or (4) after EEOC issues a

decision on appeal.


214

ing, but I brought along the annual guide to MSPB law practice
and that Peter Broida does every year. Last year’s copy ran over
2,360 pages. This is a brief summary of where things stand on
MSPB—just MSPB case law and practice. And Peter recites numer-
ous instances where the same kind of—one action can be adju-
dicated, litigated, through at least two, if not more, channels.

It doesn’t take all that much, for example, for someone who has
been terminated from his Federal employment, who believes there
was anti-union animus that motivated the termination, to be able
to develop that into either an unfair labor practice charge, go
through the FLRA or prohibited personnel practice that will be ad-
judicated through the MSPB, notwithstanding the statutory cur-
tains that appear sometimes to be neat in Title V. There are plenty
of opportunities to tweak the system so that you have multiple ap-

peals Boing

That, I think, is one of the most powerful reasons why some kind
of more unified system begs to instituted in the executive

ranch,

Mr. Mica. Mr. Fischer.

Mr. FISCHER. I would prefer to see most cases not subject to
court review. I think that step could be eliminated.

We heard testimony that 94 percent of MSPB cases are upheld
by the Federal circuit. So from the employee's perspective it doesn’t
seem to do much good anyway, and it certainly complicates the
process, because the agencies are always looking over their shoul-
der, trying to figure out what a court is going to do in the name
of due process.

The one area where you might want to preserve court review as
a matter of tradition and because it is a very sensitive policy area
would be with discrimination complaints, but for the remainder of
the cases I would make them either not subject to judicial review
at all or a very limited judicial review.

Mr. Mica. Mr. Shaw.

Mr. SHaw. Our proposal is that under the single court system
there would be no appeal from the decision of the Article 1 court
other than for EEO cases which could be appealed to the Federal
Circuit Court of Appeals.

We did a little—talked about reaching decisions. You have it all
on four charts, and we put it all on one. It looks more Byzantine
when it is all on one. There are a lot of places in here that I would
go through and eliminate steps.

Mr. Mica. Thank you.

Mr. Wolcott.

Mr. Wo.cort. There are a few areas that could be reduced or
eliminated. As I mentioned earlier, we would pro: reducing the
jurisdiction of the MSPB over broad categories of cases where peo-
ple are covered by negotiated grievance procedures.

I think the mixed case procedure also can be eliminated, and the
proposals that have been introduced in the Federal Employee Fair-
ness Act provides for elimination of the mixed case procedure. I
don’t think that that is a—it’s not particularly significant, but it is
probably a sensible step.

I would also point out that the observation that 96 percent of the
cases that appeal to the Federal circuit are affirmed might be—re-


19

discrimination. Second, when EEOC reviews MSPB's decisions in
mixed cases, it almost always agrees with them. In fiscal year
1994, for example, MSPB decided roughly 2,000 mixed case appeals.
It found that discrimination had occurred in just eight. During
the same year, EEOC ruled on appeilants' appeals of MSPB's
findings of nondiscrimination in 290 cases. EEOC disagreed with
MSPB's findings in just three. In each instance, MSPB adopted

EEOC's determination.

One result of this sort of jurisdictional overlap and duplication
is simple inefficiency. A mixed case appellant can--at no
additional risk--have two agencies review his or her appeal.
These agencies rarely differ in their determinations, but an

employee has little to lose in asking both agencies to review his

or her case.

A Costly Svstem, With Many Costs Unknown

Just how much this multilevel, multiagency redress system costs
is hard to ascertain. We know that in fiscal year 1994, the
share of the budgets of the four agencies that was devoted to
individual federal employees‘ appeals and complaints totaled
$54.2 million (see table 1). We also know that in fiscal year
1994, employing agencies reported spending almost $34 million
investigating discrimination complaints. In addition, over $7

million was awarded for complainants’ legal fees and costs in


14

protections. Its protracted processes and requirements
divert managers from more productive activities and inhibit
some of them from taking legitimate actions in response to
performance or conduct problems. Further, the demands of
the system put pressure on employees and agencies alike to
settle cases--regardless of their merits--to avoid potential

costs.

-- Third, alternatives to the current redress system do exist.
‘These alternatives, in the private sector and elsewhere, may
be worth further study as Congress considers modifying the

federal system.

I would like to make one additional observation: Leading private
sector and nonfederal employers have told us that managers in
their organizations are held accountable for treating people
fairly but are also given the flexibility and discretion to make
the tough decisions that are an inevitable part of managing well.
These organizations recognize that a balance must be struck
between individual employee protections and the authority of
managers to operate in a responsible fashion. To the extent that
the federal government's administrative redress system is tilted
toward employee protection at the expense of the effective
management of the nation's business, it deserves congressional

attention.


3

whistleblowers and prohibited personnel practices. She also en-
forces the Hatch Act.

Finally, on our third panel we have a former chairman of the
MSPB, the general counsel of the Senior Executives Association, an
assistant counsel of the National Treasury Employees Union, and
a former general counsel of the Merit Systems Protection Board.

I want to thank all of our witnesses for coming today and partici-
pating, and the various organizations who contributed to this hear-
ing, and I look forward to the hearing, the thoughts on making
positive changes and reforms to this complicated appeals process
and procedure.

Those are my opening comments, and I would like to yield to the
ranking member, the distinguished gentleman whom I saw at the
green round table this morning as I was brushing my teeth, Mr.

oran.

Mr. Moran. The off-the-record thing? Did I say anything you dis-
agree with?

Mr. Mica. No.

Mr. Moran. Good.

Well, thank you, Mr. Chairman.

We have got to tackle this issue of the appeals process if we ever
hope a reform the civil service system. So we need to be having
this hearing.

There is no question in my mind, and I suspect there won't be
in any of the panel’s mind, if there even is now, that the appeals
process for Federal employees is far too complicated, it is far too
confusing, and it is far too long.

Both the perception and I suspect we will find out that the re-
ality is that the process, in fact, does deter managers from dis-
ciplining poor performance or initiating appropriate action when
there are significant conduct problems.

The Merit Systems Protection Board emphasized in its report
that—and I am quoting here—the wide ice of review paths
available to employees serves to exacerbate the hesitancy of man-
agers to take appropriate actions against poor performance.

That is bureaucratese to say that it is very difficult to manage
in the Federal Government, and one of the reasons is that the
structure lends itself to all—well, to not just inefficiency but to de-
liberate delay and too many opportunities to obfuscate the problem
and to delay the process. So we are foing to have to figure out how
to reform it, not just whether it needs to be reformed.

The second panel is going to be useful because we will hear from
the people who are responsible for each of the separate processes
for the current appeals process. I think everyone is going to testify
that they are doing exactly what they need to do and that they are
essential. They may very well be. My statement here says that they
are, but I still have a little bit more open mind on that.

The EEOC, as we know, hears allegations of discrimination. I
was troubled that some of the longest appeals and the agency that
has the most appeals seems to be within the EEOC. So it sort of
tells you that if you understand how the EEOC process works, you
can certainly exploit it to your advantage.

The Merit Systems Protection Board hears appeals from other
agencies for removals and suspensions and reductions in pay and


132

something more that should be done with regard to productivity
and morale in the Federal sector. If you uncover any of that, I hope
you share it with us.

Mr. CASELLAS. Absolutely.

Mrs. MoRELLA. We may want to have GAO follow through in
some way if we articulate some questions for them to look at it.

But for all of you, just one question: What recommendations have
been developed as a result of the National Performance Review rec-
ommendation HRM 08? That came out a couple of years ago, and
I am curious about what recommendations may have been devel-
oped. Whoever wants to start.

Mr. ERDREICH. Not me.

Mrs. MoRELLA. Does anyone want to address it? That’s the one
to improve the processes and procedures established to provide due
process in the workplace for employees.

Mr. ERDREICH. Is anybody going to answer?

Go ahead.

Mr. CASELLAS. I am sorry. I don’t, and I am not familiar with
what you referred to.

Mrs. MoRELLA. I think it—you know, it’s the HRM 08. I think
it’s like human relations management organization.

Mr. Moran. Would the gentlewoman yield for a second?

Mrs. MORELLA. Certainly.

Mr. Moran. I think it was simply to bring all of these agencies
together and sit them down and see if you couldn't consolidate
some of the functions. It was an important MPR recommendation.

Mr. ERDREICH. Certainly it was a recommendation that was
never signed off on, if that’s the one that was—it was in an initial
MPR recommendation. The administration never signed off and
triggered our doing that.

rs. MORELLA. Maybe we should do something about that, Mr.
Chairman.

Mr. Moran. You are doing it right now.

Mr. ERDREICH. But I am sure this committee and Congress
should know that all of us frequently sit down and chat about our
mutual problems and concerns and look for ways we can better
handle these disputes. It isn’t like this is the first time we have sat
down together.

But, again, that was never triggered. It was an idea that didn’t
get the green light.

Ms. SEGAL. I would like to suggest, I am sure that we are all in-
volved in implementing many of the MPR recommendations—I
know we are inside our agency—to make it work better. That par-
ticular recommendation was not implemented.

Mrs. MORELLA. Maybe we will do something about it.

Thank you, Mr. Chairman. Thank you all very much.

Mr. MIca. I yield to the gentleman from Pennsylvania, Mr. Hold-

en.

Mr. HOLDEN. Thank you, Mr. Chairman. I apologize to the panel
for being late and not hearing all of your testimony.

But, Mr. Casellas, you just mentioned ADR. I believe from re-
viewing your testimony that many of you said ADR is an approach
to reducing workplace conflict and the number of administrative
appeals filed. I was just wondering how each of you feels. Can you


110

While I do not suggest that every one of the cases filed, or every one of these
statistical disparities, connotes illegal discrimination, I can state that discrimination remains
as a serious problem in the federal sector. Moreover, while I will not recite a list of cases
which have been decided against the government, suffice it to say there are too many cases
of blatant and egregious discrimination still going on today. These are problems which must
be addressed and not swept under the rug, either through a diminution of substantive or
procedural rights.

STREAMLINING

The Equal Employment Opportunity Commission was created with the enactment of
Title VII of the historic Civil Rights Act of 1964 to enforce the federal right to equal
employment opportunity in the private sector. The EEOC assumed authority and
responsibility over allegations of discrimination filed by federal employees in 1979 as part of
President Cartet’s Reorganization Plan No. 1. The transfer of authority over the federal
EEO process occurred in concert with the passage of the Civil Service Reform Act of 1978
(CSRA).

‘The complaint processing system currently governing federal sector EEO complaints
is guided by EEOC procedural regulations that were developed in 1991 after extensive
consultation with federal employee, management and labor groups. A federal employee
alleging discrimination based upon race, color, religion, sex, national origin, age, and
disability must first seek counseling and file a complaint with his or her federal employer.
The federal agency then conducts an investigation of the complaint and an EEOC
administrative judge presides over an administrative hearing prior to the issuance by the
agency of its final decision. After the agency renders its final decision, EEOC adjudicates
appeals of final agency decisions on complaints of discrimination filed by federal employees
and applicants.

Inherent problems in the civil service system, including problems with the
employment discrimination complaints process, motivated the changes that took place in
1979. Many of the same concerns about the civil service system are again being voiced,
particularly concerns about the difficulty of removing poor performers in federal
employment. There is discussion concerning the difficulty of removing poor performers
based on federal managers’ fear of false discrimination claims, There is a perception that
federal employees file frivolous discrimination claims to avoid or to frustrate performance-
based actions being taken against them. In addition, it has been argued that the appeals
processes available to federal employees are too many and too complicated.

In my view, a relationship has not been shown to exist -- and does not exist --
between the civil rights protections currently extended to federal employees and the problem
of poor performers. Moreover, in my judgment, the current system works effectively to
eliminate duplication of effort and unnecessary burdens in connection with the processing of
civil rights complaints. In short, there is not the necessary predicate to support major


69

such as counseling a poor performer, that stop short of formal removal. The
MSPB data were heavily referenced during the hearing by other witnesses and by
the Subcommittee itself.

"Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing
Challenges" (November 1995)

"Sexual Harassment in the Federal Government: An Update" (June 1988)
see Harassment in the Federal Workplace: Is it a Problem?" (March

The 1981, first-of-its-kind governmentwide study of sexual harassment was
initiated at the request of the Subcommittee on Investigations of the House
Committee on Post Office and Civil Service. The study provided the first
documented evidence of the widespread nature of the problem and ‘provided
policymakers with evidence of the personal costs and over $200 million in other
costs associated with this problem (such as loss in productivity, turnover, and sick
leave). The policy impact of this study--and two follow-up studies--has been
dramatic. For example:

-- Asa direct result of the 1981 study, every Federal department and agency in
the executive branch issued policies and implemented special programs to
prevent sexual harassment. The Department of Defense, for example,
specified that any employce found guilty of sexually harassing anol er
employee would be denied security clearance and effectively barred from
most employment opportunities within the Department.

-- The Board's work is a staple in the literature and has been replicated by a
wide variety of organizations and employers within and outside the Federal
government. The Department of Defense, for example, developed its own
survey modeled on ours forall military employees (MSPB only has
jurisdiction over civilian employees in DoD).

-- The Board's findings have been cited in precedent setting court cases and in
congressional hearings.

-- Currently, among the agencies actively pursuing new policy and program
initiatives in this area based, in part, on advice and assistance solicited from
MSPB are the Department of Defense, Department of Veterans Affairs, and
the Departments of State, Army, Navy, and Justice. The Department of
Justice, for example, has requested and is funding a follow-up survey of its
workforce by MSPB that will enable the Department to more specifically
identify and deal with problem areas within the Department.

"Leadership for Change: Human Resource Development in the Federal
Government" (July 1995)

In the relative short time since this report has been issued, it has helped sift the
focus of efforts to improve employee training and development in the Federal
‘Government from one of simply trying to obtain more resources to one of making
better use of current resources.


207

by thinking more along the lines of a synthesis, as opposed to the
analysis that went on in the 1970's, to try to parse these separate
statutory schemes.

Mr. Mica. Mr. Fischer.

Mr. FISCHER. Yes, I agree with Mr. Levinson’s comments, and I
don’t think that as far as the—being swamped, a single agency
being swamped with all these appeals and not being able to handle
it would necessarily be the case.

If you start out incrementally and put all these different pro-

‘ams under the leadership of one agency, you are still going to
fave initially, I think, the same resources that you had in separate
agencies. The difference would be that, at least at the beginning,
that they would continue to operate in their own programs and
then gradually, with training, as the administrative judges or
decisionmakers acquire the skills in these other program areas,
then you could consolidate and cut back.

For one thing, all these agencies now have separate field offices.
I think EEOC has 50 field offices. The FLRA has 11. The MSPB
has 11. There could be a great saving in just consolidating field of-
fices, putting them under one roof.

I don’t think, as far as staff, you need to initially reduce the
staff, and I don’t see why the existing staff, if they are handling
the appeals now, couldn’t handle them in the future.

T also agree with Mr. Levinson’s comment about this not really
being a cyclical sort of thing. We have the one agency, the Civil
Service Commission, administering all these processes, and there
was a separate—contrary to the impression that may have been
created by testimony this morning—there was a separate program
for civil rights in the Federal sector. It was administe: by the
Civil Service Commission. I think the Civil Service Commission did
a good job.

ere are problems that are unique to discrimination in the Fed-
eral sector. We saw and heard testimony that 10 times as many
complaints are filed in the Federal sector. Maybe that requires a
separate Federal program; spin it off from the EEOC, and integrate
it with the other processes; but I don’t think the configuration, the
consolidated agency configuration, has really been tried, integrat-
ing the present complicated processes.
jo I don’t think it is a cyclical kind of problem. We would be
dealing with a new entity, and I think there are efficiencies to be

Mr. Suaw. I look forward to answering this one.

The first 760 employees—which all these Federal agencies
have—doesn’t strike me as a lot. I worked at IRS for 20 years, and
we had 125,000. So 760 is not real difficult to re.

Second, Mr. Chairman, I think more important than these indi-
vidual agencies is what goes on in Federal Government agencies
themselves. I would just give you an example, and I probably will
get killed by somebody for this later.

I came to work for the Federal Government right out of law
school—a little older than others, because I had been in the mili-
tary for quite some time—in 1970 as a GS-11. At that time, there
were three attorneys in the Office of Chief Counsel of the Internal
Revenue Service, which has over a thousand attorneys that han-


24

available to employees who claim they have been discriminated
against than to those who appeal actions to MSPB. For example,
workers who claim discrimination before EEOC--unlike those
appealing a firing, lengthy suspension, or downgrade to MSPB--can
file a claim even though no particular administrative action has
been taken against them. Further, those who claim discrimination
are entitled, at no cost, to an investigation of the matter by
their agencies, the results of which are made part of the record
Further still, if they are unsatisfied after EEOC has heard their
case and any subsequent appeals, they can then go to U.S.
district court for a de novo trial, which means that the outcome
of the entire administrative redress process is set aside, and

the case is tried all over again.

What are the implications of the extensive opportunities for
redress provided federal workers? Federal employees file
workplace discrimination complaints at roughly 10 times the per
capita rate of private sector workers. And while some 47 percent
of discrimination complaints in the private sector involve the
most serious adverse action--termination--only 18 percent of

discrimination complaints among federal workers are related to

firings.

Another phenomenon may be worth noting. Officials at EEOC and
elsewhere have said that the growth since 1991 in the number of

discrimination complaints by federal employees is probably an

12


143

The Honorable John L. Mica
Page 2

In FY 1994, retirement appeals were 26% of the Board's
total workload, up from 17% in FY 1993. In FY 1995,
retirement appeals were 15% of the total workload.

I was also pleased to hear questions during the hearing
about ways disputes might be addressed as they arise in the
workplace before they reach the litigation stage. I think
there is significant opportunity in this area.

The Administrative Dispute Resolution Act of 1995
(ADRA), S. 1224, would, for the first time, apply to actions
alleging prohibited personnel practices under 5 U.S.C.
2302(b)--including discrimination and reprisal for
whistleblowing. S. 1224 would make alternative dispute
resolution (ADR) a permanent part of the tools available for
dispute resolution in the Federal sector (the original ADRA
sunsetted this year). The Senate Subcommittee on Oversight
of Government Management and the District of Columbia,
Committee on Governmental Affairs (Chairman Cohen), held a
hearing on S. 1224 at the same time the Civil Service
Subcommittee was considering the dispute resolution process.
Staff may want to follow up to ensure implementation of the
ADRA addresses the interests of the civil service and the
Subcommittee.

Again, I look forward to working with you as you
continue the careful and detailed study this subject

requires. Please let me know if my staff or I can assist
you in your efforts.

Sincerely,

A

Ben L, Erdreich


10

For example, it may be worth studying those segments of the
civil service left Partially or entirely uncovered by the current re-
dress system, such as the intelligence agencies and FBI employees.

It should also be noted that legislative branch employees are
treated differently from those in the executive branch. For exam-
ple, under the Congressional Accountability Act of 1995, beginning
this January, congressional employees with discrimination com-
plaints will be required to choose between two redress alternatives,
one administrative and one judicial.

The effect of this arrangement is to avoid the opportunity for the,
“two bites at the apple,” one administrative, one judicial, currently
afforded executive branch employees. Congress may find that expe-
rience with the new system and operation may be instructive for
considering how best to provide employees redress.

Today, in the face of tight budgets and a rapidly changing envi-
ronment, the civil service is undergoing renewed scrutiny by the
administration and by Congress. There are so many facets of the
civil service system currently under review, no area should be over-
looked that offers the opportunity for improving the way the Gov-
ernment operates.

To the extent that the Federal Government’s administrative re-
dress system is tilted toward employee protections at the expense
of the effective management of the Nation’s business, it deserves
co) ssional attention.

This concludes my prepared statement, Mr. Chairman. I would
be pleased to answer any questions that you or other members of
the subcommittee may have at the appropriate time.

[The prepared statement of Mr. Bowling follows:]


141 ’

Federal Labor Relations Authority
Office of the General Counsel

Unfair Labor Practice Complaints Issued, FY 1986 - FY 1995

1025 T — T
950 =I
875 = \
800 “A \
725 7
650
875
500 A
425
350 1
1986 1987 1988.« «1989 1990 1991 1992-1993 1994 «1995

402 unfair labor practice complaints were issued in fiscal year 1995, the lowest
number of complaints issued in the last ten years. This number Is 43% lower
than the average number of complaints issued during this ten year period.

Unfair Labor Practice Hearings Conducted, FY 1986 - FY 1995

130 r i

420 —

110 =

400 F-

90

2 = Z ==

70

60

50 t

40 + 4
1986 ©1987 1988 «1989 1990 1991 1982-1993 1994 1995

52 unfair labor practice complaint hearings were held in fiscal year 1995, which is
the lowest number of unfair labor practice complaints litigated in the last ten
years and is 57% lower than the average hearing rate for this ten year period.


184

was alleged in 28% or more as an affirmative defense. However, the

discrimination allegation was withdrawn by the complainant in over
60% of the cases on average. Of the total cases decided where
discrimination was alleged as an affirmative defense (approximately
700 or more per year), discrimination was found in less than .03%
on average during these years. This does not indicate that

discrimination is raised on too many occasions as a defe:

, but it
does indicate that it is only in a small minority of these cases
that discrimination is ever proven. This establishes that federal
employees who have been subjected to adverse actions during this
period have not been subjected to those actions because of unlawful
discrimination on the part of management. To the contrary, the
percentage where discrimination is found is so small that no one
can reasonably conclude that discrimination is a matter of concern

in these cases.

Against this backdrop, we believe that the main problem with

the federal employee appeal process is that there is a multiplicity

of ways in which federal employees can appeal personnel actions

For example, in the MSPB cases cited above, where the decision has
gone against the employee, that is not the end of the matter. An
employee can appeal an Administrative Judge’s decision to the full

Merit Systems Protection Board comprised of three Presidential

appointe If he or she does not like that decision, they can
refer it to the EEOC and have that agency review the MSPB decision

if discrimination was raised as a defense. If the EEOC disagrees


29

In the same regard, federal agencies are exploring alternatives
to rigid, formal grievance processes. The use of ADR methods
was, in fact, called for under CSRA and underscored by the
Administrative Dispute Resolution Act of 1990, the Civil Rights
Act of 1991, and regulatory changes made at EEOC. Based not only
on the fact that Congress has endorsed ADR in the past, but also
that individual agencies have taken ADR initiatives and that MSPB
and EEOC have explored their own initiatives, it is clear that
the need for finding effective ADR methods is widely recognized
in government. However, our preliminary study of government ADR
efforts last year indicated that agency efforts are, by and
large, in their early stages. Right now, results are too sketchy
to be of use, but eventually it would be helpful to know if
agencies pursuing ADR approaches have achieved savings in time
and money and whether their employees have found ADR methods fair

and equitable.

Other areas that may be worth studying are those segments of the
civil service left partially or entirely uncovered by the current
redress system. For example, while almost all federal employees
can bring discrimination complaints to EEOC, employees in their
probationary periods, temporary employees, unionized postal
workers, intelligence agency and FBI employees, and certain other
employees generally cannot appeal adverse actions to MSPB. In
addition, intelligence agency and FBI employees, as well as

certain other employees, are not covered by federal service labor

17


166

MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE, 1 am pleased to appear
before you today to discuss streamlining the federal appeals process. I believe that the

current process for assuring Executive Branch employees workplace due process is seriously
flawed and in urgent need of reform.

My concerns about the current federal personne! appeals process stem from my
experiences as deputy general counsel of the Office of Personnel Management, as Chairman
of the Merit Systems Protection Board, and as a private practitioner. Over more than a
decade of direct involvement with the process from these different perspectives, I feel
strongly that the complexity of the current system undermines the ability of employees to
pursue and win vindication of meritorious claims, perplexes and unduly burdens managers
and supervisors who must respond to multiple and complex claims, and constitutes an

indefensible burden on the nation's taxpayers who are ultimately charged with financing these
complicated and costly dispute resolution schemes.

The fundamental flaw in the current process is the multiple and overlapping forums
that are available for the redress of employee grievances in the Executive Branch. At the risk
of thoroughly confusing the uninitiated, let me very briefly list where due process is obtained:

1. Nearly every agency provides an internal administrative grievance system and Equal
Employment Opportunity (EEO) investigations capability;

2. The Office of Personne! Management (OPM) resolves classification (grade level)
disputes, retirememt claims, and controversies about overtime entitlement under the Fair


186

avenu

are also available under certain circumstances and could

also result in a federal court’s reviewing decisions of these
bodis

And thus, the proce:

would start once again.

This plethora of processes are not necessary, and in today’s
climate, neither the Administration, Congress, federal unions or

management and professional associations are alleging they are

We wish to emphasize however that even with consolidation, the
standard of proof in performance cases must remain "substantial
evidence," and in conduct cases “preponderance of evidence." And,
we strongly believe that affirmative defenses should not be allowed
in performance cases. (For further information, see our testimony

of October 26, 1995 before this Subcommittee).

We have two alternative recommendations. The first is that

there be established a United States Court of Federal Employment

(USCFE) wherein all the appeal processes would be combined into one
avenue of appeal. The Court vould have the jurisdiction of the

MSPB, the FLRA, the federal employ

EEOC process, the arbitration
process and all matters currently appealable to the Office of
Personnel Management, such as Classification appeals, etc. The

Court's jurisdiction should also encompass the duties of the Office
of Special Counsel and the General Counsel’s Office of the FLRA.
Employ

would appeal an adverse action or take their complaints


98

and FY95. The survey is part of its strategy for improving customer service.
Finally, in conjunction with the survey, the Panel is undertaking a comprehensive
review of its regulations to determine where they need to be streamlined and
clarified so that the customer may be better served.

CONCLUSION

| have been the Chair of the Panel since October 1994. During that time |, along
with my colleagues, have undertaken various initiatives to improve the quality of
service the Panel provides, and to reduce the costs of conflict in the federal sector,
all in an effort to provide the American taxpayer an effective and effici
Government. My experience has given me an appreciation of the complexities of
federal sector dispute resolution, and of the need for careful and detailed study if
streamlining is to produce not only a more cost effective system, but a better
system than the one it would replace. Along with FLRA Chair Segal, Member
Armendariz, and General Counsel Swerdzewski, | welcome the opportunity to
actively participate in that effort.



140

Federal Labor Relations Authority
Office of the General Counsel

Unfair Labor Practice Charges Filed, FY 1986 - FY 1995

9000

8500 =

5000 +
1986 1987 1988 §= 1989 1990 1991 1992 1993 1994 1995

‘There has been a 28 % decrease in unfair labor practice charge filings In the last
two years.

ULP Settlements as a Percentage of Charges Filed, FY 1986 - FY 1995

50%
45%
40%
38% ak.
30%
2%
20%1 +
1988 19871988 «1989 1990 19911992 1993 19941998

47% of all unfair labor practice charges filed during fiscal years 1994 and 1995
resulted in settlement either during the Investigation or after issuance of a
complaint. This reflects a 14% increase in the settlement rate over the average
settlement rate for the ten year period.


91

Facilitation, Intervention. Training end Education

In accordance with the FLRA’s increasing emphasis on alternative dispute
resolution and the fact that in many instances a motivating factor in the filing of
unfair labor practice charges is the relationshi between the parties, the OGC

relationship issues in addition to the legal issues represented by an individual
charge. The objectives of these programs, which involve the use of facilitation
skills, intervention techniques, and training and education, are: (1) to develop the
parties’ interest-based problem solving skills, and (2) to assist them in the design of
permanent alternative dispute resolution systems. These programs also include
training on the rights and obligations of the parties under the Statute. Through
these efforts, we are seeking not just to resolve the existing dispute but to develop
ways for the parties to prevent and if not, resolve any future disputes that arise
without third party assistance.

This past year we provided over 350 programs to federal sector agencies and
unions. In order to evaluate the effectiveness of these programs, we conducted a
survey of program participants. The survey revealed that 75% of the participants
‘believed that the program led to improved labor-management relations at thet
facility. Appro: tely 33% stated that as a result of the program, there was @
reduction in the filing of unfair labor practices at their facility. To date, OGC
intervention-type programs targeted those facilities which had historically
experienced high rates of ULP filings. We have realized successful results from

these programs. For example, one facility which had over 160 ULP charges filed in
had an 89% reduction in ULP filings and an 82% reduction in
grievance filings after intervention programs were provided by the FLRA. Also, due
in part to these programs, the OGC has seen a 28% decrease in filings of ULP
charges since 1993. For the prior 10 years, ULP charge filings had increased an
average of 10% per year.

Government Reorganization

The OGC has a critical role in processing and deciding issues concerning the
representation of employees by federal sector labor unions. As referenced in Chair
Segal’s testimony, the OGC has taken a very proactive approach to assisting the

s in dealing with government reorganizations. For example, over the past two
years there have been a number of large reorganizations within the Department of
Defense which involved thousands of employees and hundreds of bargaining units.
Rather than handling each one of the many representation petitions that could be
filed as an independent matter, we have adopted a collaborative problem-solving
approach to reorganizations. This approach involves bringing all the parties at
interest together to participate in an interest-based process to identify and address
the respective representation issues brought about by the proposed reorganization.
Using this approach, we have successfully guided parties through major
reorganizations involving the Defense Commissary Service, Defense Finance and

4


219

Statement of R. Scott Fosler
President
National Academy of Public Administration
Before the
Subcommittee on Civil Service

Committee on Government Reform and Oversight

‘The National Academy of Public Administration (NAPA) is pleased to respond to
your request to submit testimony on the very important matter of federal employee appeals.
A representative of the Academy appeared before this Subcommittee two weeks ago to offer
views on another critical issue under consideration by your members: performance and
accountability in the federal government. Obviously, the subject of today's hearing is closely
related since often, the events proceeding from performance management actions result in
employee appeals in one form or another. 1 will address the subject of federal employee
appeals systems from the perspective of past and ongoing work conducted by the Academy’s

Center for Human Resources Management.

INTRODUCTION

NAPA is a non-profit, non-partisan organization chartered by Congress to improve
governance at all levels. The Academy's Center for Human Resources Management has
several projects and studies underway on behalf of individual federal agencies to assist them
in today’s human resources environment. Our primary focus is on our work with a

consortium of agencies to address common concems and develop initiatives to help human


193

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ll

United States General Accounting Office

GAO

Testimony

Before the Subcommittee on Civil Service,
Committee on Government Reform and
Oversight

House of Representatives

For Release on Delivery

Wednesday
November 29, 1995

FEDERAL EMPLOYEE REDRESS:
An Opportunity for Reform

Statement of

Timothy P. Bowling, Associate Director
Federal Management and Workforce Issues
General Government Division

Gy

GAO/T-GGD-96-42


oT

REDUCING THE COSTS OF CONFLICT AND IMPROVING SERVICE

There was a 27% decrease in the number of requests for the Panel’s
from FY 1993 to FY 1994. While the number of requests for assistance
1995 decreased only slightly from FY 1994 levels, by about 5 percent, | believe
‘that the trend toward reductions in our caseload is attributable primarily to the
development of labor-management partnerships in the federal sector. The
development of lasting partnerships, in turn, requires the kind of effective training
and intervention programs which are being provided by the FLRA. Although
Panel's traditional role has been to provide finality to the collective bargaining
process, it nevertheless has actively promoted the use of alternative modes of
dispute resolution, such as interest-based bargaining, in the cases which have
come before it,

An outstanding
recent case involvi
Social Security Administration. The dispute involved an issue which was national
in scope. The Panel ordered the parties to participate in interest-based training,
and to apply the results of their training to the impasse in question. It then
collaborated with Authority providing the parties with the training they
needed. The joint agency team was able to facilitate a complete settlement of the
dispute in a manner that strengthened the parties’ relationship, and should result in
the prevention of future disputes. The Panel intends to continue to examine its
cases for such opportunities.

A key ingredient in assisting parties in the voluntary settlement of their disputes is
providing face-to-face assistance. Where face-to-face assistance was not possible,
its staff and Members often provided telephone mediation. Our efforts led to
tangible results: a 12-percent reduction in the number of cases requiring final Panel
action where terms were imposed on the parties.

‘These accomplishments occurred at the same time as the Panel engaged in efforts
to improve the quality of its service. in this regard, Panel Members and staff met
directly with customers in Houston, Texas, in May 1995 and Chicago, lilinois, in
July 1995, to receive valuable suggestions regarding where improvements could be
made. In addition, in September 1995, the Panel sent out customer surveys to all
union and management representatives who requested its assistance in FY94



187

to this Court, and they would be heard by fact-finding examiners
whose findings and conclusions the Court could adopt. The Court
would have an investigatory arm encompassing the duties of the
Office of Special Counsel and the General Counsel of the FLRA,
which would allow investigation of alleged whistleblower reprisal

or unfair labor practic as well as the development of

information which the Court could utilize in its decisions. In all

cases other than thor

involving employment discrimination, the
decisions of the Court would be final, with no right of appeal. In
all matters arising under the civil rights laws, however, further
review in accordance with the federal appellate rules would lie in
the U.S. Court of Appeals for the Federal Circuit, with final
review available in appropriate circumstances before the U.S.

Supreme Court.

Obviously, this Court would be different than the typical
federal district court. It would be established by statute under
Article 1 of the U.S. Constitution, rather than Article 3 as are
U.S. Federal District Courts. We recommend it be patterned after
the U.S. Tax Court (gee 26 U.S.C. §7441 et seg.) which is composed
of judges appointed for 15 year terms, all of whom have substantial
experience and expertise in tax law. similarly, we recommend the
Court have Judges appointed for fixed terms and nominated by the
President and confirmed by the Senate. The Court would utilize
extensively Special Trial Judges (as does the U.S. Tax Court)
appointed by the Chief Judge to assist in the resolution of

6


102

2

PROHIBITED PERSONNEL PRACTICES. WE ALSO OPERATE A
WHISTLEBLOWER DISCLOSURE UNIT AND WE ENFORCE THE HATCH ACT.

ON OCTOBER 29, 1994, THE PRESIDENT SIGNED INTO LAW OSC’S
REAUTHORIZATION ACT, P.L. 103-424. THE REAUTHORIZATION AMENDED
AND EXPANDED FEDERAL EMPLOYEE RIGHTS AND DETAILED CERTAIN
PROCEDURAL CHANGES AT OSC. OF PARTICULAR NOTE, THE ACT
CREATED TWO NEW PERSONNEL ACTIONS WHICH EXPAND THE TYPES OF
CASES THAT OSC CAN INVESTIGATE AND PROSECUTE. ONE SUCH
PERSONNEL ACTION IS WRITTEN BROADLY AND ENCOMPASSES ANY
SIGNIFICANT CHANGES IN DUTIES, RESPONSIBILITIES, AND WORKING
CONDITIONS. THE OTHER PERSONNEL ACTION COVERS "A DECISION TO
ORDER PSYCHIATRIC TESTING OR EXAMINATION.” IT SHOULD ALSO BE
NOTED THAT ALL OF OSC’S PROTECTIONS WERE EXTENDED TO CERTAIN
TITLE 38 HEALTH CARE EMPLOYEES OF THE DEPARTMENT OF VETERANS
AFFAIRS, AND OSC'S WHISTLEBLOWER PROTECTIONS WERE EXTENDED TO
EMPLOYEES OF CERTAIN GOVERNMENT CORPORATIONS.

OSC’S ACCOMPLISHMENTS.

MR. CHAIRMAN, I WOULD BE REMISS IF I FAILED TO TELL YOU HOW
PROUD { AM OF THE ACCOMPLISHMENTS OF THE EMPLOYEES OF OSC
OVER THE PAST TWO YEARS. IN FACT, FISCAL YEARS 1994 AND 1995 HAVE
BEEN RECORD SETTING YEARS IN TERMS OF THE NUMBER OF FAVORABLE.
ACTIONS. IN FY 1994, WE OBTAINED 136 FAVORABLE ACTIONS, WHICH
WAS A 40 PERCENT INCREASE OVER THE PRIOR YEAR. 1N THE MOST
RECENT YEAR, FY 1995, OSC OBTAINED 172 FAVORABLE ACTIONS WHICH
REPRESENTS MORE THAN A 26 PERCENT INCREASE OVER FY 1994. OSC
WAS ABLE TO ACHIEVE FAVORABLE ACTIONS WITHOUT PROTRACTED AND
COSTLY LITIGATION IN 100 PERCENT OF THESE CASES. IT IS OUR
EXPERJENCE THAT WHEN OSC DETERMINES THAT CORRECTIVE ACTION IS
WARRANTED IN A PARTICULAR CASE, THE AGENCY ALMOST ALWAYS IS
RECEPTIVE TO AN AMICABLE SETTLEMENT.

DURING THE PAST TWO YEARS, I CONDUCTED A THOROUGH REVIEW
OF OSC’S OPERATIONS. WITH THE GOAL OF IMPROVING AND
STREAMLINING MANY OF OUR PROCEDURES. AS A RESULT OF THIS
REVIEW. WE BEGAN A PILOT PROJECT IN FY 1994 UNDER WHICH
INTERDISCIPLINARY TEAMS OF INVESTIGATORS AND ATTORNEYS WERE
ESTABLISHED TO HANDLE CASES FROM THE INCEPTION OF A FULL FIELD
INVESTIGATION THROUGH THE FINAL DISPOSITION OF A MATTER. THE
OBJECT OF THE PILOT PROJECT WAS TO ENSURE MEANINGFUL INPUT
FROM BOTH INVESTIGATORS AND ATTORNEYS IN THE PROCESS OF


223

debilitating to devote so much of their time to defending cases on the same issues involving
the same people. As a result, they have less time to devote to the work of the agency. It is
also demoralizing to employees and unions who, believing an injustice has been done in a
particular personnel action, feel they must launch multiple complaints through a multitude of
channels. They do this because they fear missing the one forum that might provide relief —

and even then they might wait years, perhaps, before a decision is made.

Having said all this, however, we must bear in mind that there are many who would
assert that the problem of multiple and overlapping appeals jurisdictions and processes is
more perceived than real, and that due process should not be sacrificed in pursuit of a “one
size fits all” approach. Many would argue that our primary goals should be to resolve

employee-management disputes at the earliest possible stage of any process, with managers

assuming responsibility and accountability for taking appropriate actions in a timely manner.
In the absence of informal resolution, the object should be to ensure expeditious and final
decisions, and to assure due process in all cases. No appeals system will be credible to
managers, employees, Congress, or the public unless it assures due process for the parties
involved. Assuming agreement on these primary objectives, the remaining questions have to

do with what kind of system(s) will ensure due process in pursuit of these objectives.

Many alternatives have been proposed, such as: creating a new federal agency to
handle all cases involving employee-management disputes, mandating altemate dispute

resolution processes tailored for specific issues, and establishing a special federal court for


201

weapons, such as the strike, that it was not willing to provide
federal employees. The negotiability and Federal Services
Impasses Panel procedures at the FLRA are examples of such
procedural devices.

There is some overlap in this system, such as possible
consideration of certain personnel actions by both the EEOC and
the MSPB. This overlap does not stem from a love of redundancy,
however. It reflects a deeply held and historically rooted
concern, which continues to this day, that certain principles,
such as the requirement that the workplace be free of
discrimination, have not been adequately protected by decision
makers primarily focused on the civil service statutes.

As we approach the 20th anniversary of the CSRA system,
however, it is appropriate to take a look at what has worked and
what has not worked, and to develop modifications to make the
system simpler and better. First, I would like to turn to some
of the successes of the CSRA, because they point the way for
modifications that will improve the system.

The CSRA introduced mandatory, binding arbitration of
employment and contract disputes in the federal sector. There
can be no doubt that the innovative use of party-controlled
dispute resolution procedures provides a vast improvement over
cumbersome and often ineffective administrative procedures for
employees covered by collective bargaining agreements. Under the
CSRA, the negotiated grievance procedure is available for almost

every dispute and NTEU is generally inclined to use the


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118

is made, order an appropriate remedy. To insure complete, fair investigations being conducted
by agencies within the 180-day limit, the regulation prescribes the use of adverse inferences and
permits both parties to obtain findings of fact and conclusions of law without a hearing, a type
of summary disposition, for some or all issues in a complaint. The use of adverse inferences
and summary dispositions will provide incentives for agencies to conduct complete, fair
investigations within the 180-day period. The administrative judge must decide the case within
180 days unless he or she makes a written determination that good cause exists for enlarging the
normal 180-day period.

By keeping the hearing stage at the agency level as part of the investigatory process, the agency
retains the same opportunity that it now has under part 1613 to issue a final decision provided
it does so within 60 days of receipt of the administrative judge's findings and conclusions. The
final decision shall consist of findings by the agency on the merits of each issue in the
complaint, appropriate relief if discrimination is found, and contain notice of the complainant's
appellate rights and time limits. ‘The administrative judge’s findings, conclusions, and relief
ordered shall become the agency’s final decision if the agency does not issue its own decision
within 60 days. After the final decision of the agency is issued, or the findings and conclusions
become final, the complainant may appeal to the Commission by filing an appeal with the EEOC
within 30 days.

APPELLATE PROCESSING BY EEOC

Where an agency dismisses all or part of a complaint, a dissatisfied complainant may file an
expedited appeal with the EEOC to guard against undue delays in complaint processing because
of an improper dismissal. The EEOC may determine that a dismissal was improper, reverse the
dismissal, and remand the matter back to the agency for completion of the investigation,

‘A complainant, member or agent of a class, or a dissatisfied grievant may appeal to the EEOC
from a final decision or from a decision of an agency to dismiss an allegation in a complaint.
Except for mixed case complaints, any dismissal of a complaint or portion of a complaint or any
final decision may be appealed to the Commission within 30 days from a complainant's receipt
of a dismissal or final decision. Any grievance decision may also be appealed within 30 days
of a receipt of a decision. The Commission will examine the record, may supplement it, draw
adverse inferences when appropriate, and issue decisions. Either party may request
reconsideration by the Commission of an Office of Federal Operations decision, or the appellant
can file a civil action in federal court.

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1

“Whistleblowing in the Federal Government: An Update" (October 1993)
aplowing the Whistle in the Federal Government: A Comparative Analysis of
1980 and 1983 Survey Findings" (October 1984)

"Do Federal Employees Face Reprisal for Reporting Fraud, Waste, and
Mismanagement?" (April 1981)

The 1981 and 1984 "whistleblowing” studies by MSPB (updated in 1993), were
used during congressional debate that resulted in strengthened protections for
employees under the Whistleblower Protection Act of 1989. However, the policy
Benefits from this critical MSPB examination started much earlier. For example:

-- In announcing the initiative to establish hotlines within all major Federal
departments and agencies in 1981, President Reagan stated:

A study released yesterday reveals startling statistics that
confirm much of what this Administration has said about the
“national scandal” of waste, fraud, and abuse in

overnment. . . . The Study, conducted by the Merit

ystems Protection Board, also found that much of the
wasteful or illegal activities have gone unreported because of
the belief that “nothing would be gone." is
Administration means to change that attitude.

- Also in 1981, the Director of the President's Council on Integrity and
Efficiency took seven specific actions "to respond to the MSPB findings."

“Workforce Quality and Federal Procurement: An Assessment" (July 1992)

This siudy and MSPB's collaboration on a follow-up study conducted by OMB
Provided justification for the recently enacied "Federal Acquisitions Streamlining
Act” and the proposed "Federal Acquisition Improvement Act of 1995.” This
ground-breaking study demonstrated that well-documented problems in Federal
Procurement were not caused by any marked decline in the quality of Federal
procurement professionals but were related to a significant increase in the
complexity of the procurement process.

"Balancing Work Responsibilities and Family Needs: The Federal Civil
Service Response" (November 1991)

Based on recommended policy changes in this report:

— OPM changed its regulations fo permit Federal employees to use sick leave to
care for children or elderly family members and the President directed agency
heads to work to achieve a more family friendly workplace in order to
promote the efficiency of the service.

-- An OPM report, "Balancing Work and Family Demands: The Federal
Response,” adopted MSPB recommendations, including one dealing with the
ability of Federal agencies to use appropriated funds to help provide needed
child care and elder care. Individual Federal agencies also initiated relevant
efforts consistent with the Board's findings.


200

Mr. Chairman and Members of this Subcommittee, my name is
Robert Tobias and I am the president of the National Treasury
Employees Union. NTEU is the exclusive representative for
fourteen different federal agencies throughout the federal
government. NTEU has been in the forefront of the trend to apply
innovative dispute resolution techniques to the federal workplace
and we welcome this opportunity to discuss the complaint handling
procedures that are now available in the federal government.

There are several different adminiatrative entities that
adjudicate disputes involving federal employment - most notably
the Federal Labor Relations Authority (FLRA), the Merit Systems
Protection Board (MSPB), and the Equal Employment Opportunity
Commissions (EEOC). In addition, many broad issues and specific
dieputes are resolved through the collective bargaining process,
through negotiated grievance procedures, and through Partnership
Counsels created under the Executive Order.

This constellation of administrative and negotiated
procedures arose from the Civil Service Reform Act of 1978. The
structure reflects a congressional impulse to insure that certain
employee rights and certain management prerogatives be protected.
In some instances, Congress created procedures largely to address
specific employment problems; MSPB’s Office of Special Counsel,
for example, is charged with the protection of whistleblowers.

In other instances, Congress attempted to develop procedural

devices that would be a substitute for traditional economic


16

the purposes of CSRA was to streamline the previous redress
system, the scheme that has emerged is far from simple. Today,
no fewer than four independent agencies hear employee complaints
or appeals. The Merit Systems Protection Board (MSPB) hears
employee appeals of firings or suspensions of more than 14 days,
as well as other significant personnel actions. The Equal
Employment Opportunity Commission (EEOC) hears employee
discrimination complaints’ and reviews agencies’ final decisions
on complaints.‘ The Office of Special Counsel (OSC) investigates
employee complaints of prohibited personnel actions--in
particular, retaliation for whistleblowing. For employees who
belong to collective bargaining units and have their individual
grievances arbitrated, the Federal Labor Relations Authority

(FLRA) xeviews the arbitrators’ decisions.*

While the boundaries of the appellate agencies may appear to be
neatly drawn, in practice these agencies form a tangled scheme.
One reason is that a given case may be brought before more than
one of the agencies--a circumstance that adds time-consuming

steps to the redress process and may result in the adjudicatory

\Complaints may be filed for unlawful employment discrimination
on the bases of race, color, religion, sex, national origin. age.
or handicap.

‘In addition, EEOC receives and investigates employment
discrimination charges against private employers and state and
local governments.

°*In addition, employees can appeal position classifications to
OPM.

4


160

Page 2 - All Employees

‘The total caseload of informal reprisal complaints existing prior
to the effective date of this policy will be processed within 180
calendar days of the issuance of this policy

You are encouraged to read the entire document carefully and

retain a copy for future reference. If you have any questions
regarding the policy, please direct them to your EEO Officer or
the Office of Equa! Opportunit

‘The NIH will continue to examine and re-evaluate policies and
procedures in other areas of equal opportunity. The NIH is
committed to taking the steps necessary to ensure a fair and
equitable opportunity for all individuals to fully utilize their
talents and capabilities, and to create a work environment where
no one is denied the opportunity to fully contribute.

far nee

arold varmis, M.D.

Attachment


99

Mr. Mica. We will turn now to Kathleen Day Koch, who’s the
Special Counsel of the Office of Special Counsel.

Welcome.

Ms. Kocu. Thank you, Mr. Chairman. I will gladly take advan-
tage of the opportunity to submit my entire written statement for
the record.

Mr. Mica. Without objection.

Ms. Koc. I welcome this opportunity to participate in these
hearings, focusing on possible changes in the civil service dispute
resolution system.

Mr. Chairman, you may recall that when we met at the start of
this Congress, I offered my assistance to you as you assumed the
leadership of this committee. I repeat that offer today, and I am
willing to respond to any questions you have, as well as the other
members of the committee.

Mr. Chairman, members of the committee—subcommittee, I have
spent my entire legal career in public service. In fact, I have
worked at the Federal Labor Relations Authority as the general
counsel, and I was at the Merit Systems Protection Board as a staff
attorney. My experience in the Federal Government has provided
me with a solid understanding of, as confused as these charts may
look, the operation and function of the civil service system. And I
am happy to share my thoughts with you today.

Let me begin by discussing my current agency, the Office of Spe-
cial Counsel. The OSC, as we affectionately refer to it, is an inde-
pendent agency whose primary mission is to protect Federal em-
ployees. It sounds familiar, right? We also protect former employ-
ees and applicants for employment from prohibited personnel prac-
tices. I think it’s important to note, we are not an appeals agency;
the others up here are. The OSC has the duty to investigate and,
when appropriate, prosecute allegations of prohibited personnel
practices. In effect, because we independently evaluate the work-
place difficulty that has been brought to us, we actually do function
as—somewhat as what Congressman Moran was referring to, a
screening mechanism. We resolve quickly those matters that
should not go further and bring forward actual violations.

We also operate a whistleblower disclosure unit which allows us
to receive from employees whistleblower disclosures that we may
then forward to the agency, and that requires a report that we re-
view and submit to Congress and to the President; and we are the
agency which has been given the function of enforcing and advising
on the Hatch Act.

Mr. Chairman, I would be remiss today if I failed to tell you how
proud I am of the accomplishments of the employees of OSC over
the past several years and, particularly, the past 2 years. In fact,
fiscal years 1994 and 1995 have been record-setting years in terms
of the number of favorable actions that we have been able to ac-
complish with a very small work force.

In fiscal year 1994 we obtained 136 favorable actions, which was
a 40 percent increase over the prior year. In the most recent year,
fiscal year 1995, we were able to obtain 172 favorable actions,
which represents more than 26 percent—a more than 26 percent
increase over fiscal 1994, And we were able to achieve these favor-


21

they involve claims of discrimination. Among discrimination
cases closed during fiscal year 1994 for which there was a
hearing before an EEOC administrative judge and an appeal of an
agency final decision to the Commission itself, the average time
from the filing of the complaint with the employing agency to the

Commission's decision on the appeal was over 800 days.*

One reason it takes so long to adjudicate a discrimination case
is that the number of discrimination complaints has been climbing
rapidly. As shown in table 2, from fiscal years 1991 to 1994,
the number of discrimination complaints filed increased by 39
percent; the number of requests for a hearing before an EEOC
administrative judge increased by about 86 percent; and the
number of appeals to EEOC of agency final decisions increased by
42 percent. Meanwhile, the backlog of requests for EEOC hearings
increased by 65 percent, and the inventory of appeals to EEOC of

agency final decisions tripled.*

‘EEOC processed requests for hearings before an administrative
judge in an average of 154 days. The Commission processed
appeals of agency final decisions in an average of 185 days.
Cases before MSPB are processed more quickly but still take a
long time. In fiscal year 1994, MSPB processed initial appeals
in an average of 81 days and processed appeals of initial
decisions to the three-member Board in an average of 162 days.

*EEOC officials told us that they have undertaken an assessment
of discrimination complaint processing for federal employees and
expect to complete the study in early 1996.

9


50

record. We would like you to summarize. We will put our little
timer on here, which will give you fair warning.

STATEMENTS OF BENJAMIN ERDREICH, CHAIRMAN, MERIT
SYSTEMS PROTECTION BOARD, ACCOMPANIED BY BETH
STAVET, VICE CHAIR; AND TONY AMADOR, BOARD MEMBER;
PHYLLIS SEGAL, CHAIR, FEDERAL LABOR RELATIONS AU-
THORITY, ACCOMPANIED BY JOSEPH SWERDZEWSKI, GEN-
ERAL COUNSEL; BETTY BOLDEN, CHAIR, FEDERAL SERVICE
IMPASSES PANEL; TONY ARMENDARIZ; DONALD WAS-
SERMAN; KATHLEEN DAY KOCH, SPECIAL COUNSEL, OFFICE
OF SPECIAL COUNSEL; AND GILBERT F. CASELLAS, CHAIR-
MAN, EQUAL EMPLOYMENT OPPORTUNITY EMPLOYMENT
COMMISSION

Mr. Mica. We will start out with the chairman of the Merit Sys-
tems Protection Board, Benjamin Erdreich.

Welcome. You are recognized.

Mr. ERDREICH. Thank you, Mr. Chairman. I would have my en-
tire statement in the record, if I could; I will try and make an ab-
breviated statement.

I am pleased to be here today, and with me is my vice chair,
Beth Stavet, and the third member of our board, Tony Amador. As
you know, or may know, I was involved in these issues during my
10 years in Congress and served on the House Government Oper-
ations Committee, the predecessor to this committee. I appreciate
the value, the oversight you are providing and pledge you my co-
operation.

The MSPB adjudicatory role is to protect the merit system in
Federal employment by ensuring timely, fair and neutral disposi-
tion of employee appeals of agency personnel actions, and providing
guidance to agencies’ employees through precedential decisions.
Also, as you know, we are charged with oversight review of OPM
actions and study of merit systems in the executive branch. Our
board provides the only independent, neutral review of executive
branch programs; and studies and reports are used by this sub-
committee, as well as many others in the field.

As we take a look at the civil service system, it seems to me it
is worth remembering the basic principle underlying the Civil Serv-
ice Reform Act, protection of the merit system within the frame-
work of streamlined management. From my Perspective as chair-
man of the MSPB and based on our 1995 data, I can report that
the process is working faster, more efficiently and better ever.
The impetus of this comes from our own efforts, the mandates from
the President, the National Performance Review and the Congress,
to create a government that works more efficiently and costs less.

The MSPB. processes the file at the administrative stage in an
agency personnel action. However, I think it should be emphasized,
as was stated in our testimony before your prior hearing on Octo-
ber 26th, that based on the estimates that have come to us, only
about 20 percent of all removals and the motions are appealed to
MSPB. A vast number of actions we never see.

Appeals challenging agency actions are heard initially by our ad-
ministrative judges in our regional and field offices, and their deci-
sions may be appealed to our three-member board in Washington.


95

WRITTEN STATEMENT OF BETTY BOLDEN
CHAIR, FEDERAL SERVICE IMPASSES PANEL

Mr. Chairman and Members of the Committee:

Thank you for extending me the opportunity to submit written testimony on behalf
of the Federal Service Impasses Panel (the Panel) regarding the important subject of
the process federal employees use to appeal decisions concerning their
nt. As noted by Chair Phyllis Segal in her testimony, the Panel resolves
impasses between federal agencies and unions representing federal employees
arising from negotiations over conditions of employment under the Federal Sector
Labor-Management Relations Statute (the Statute) and the Federal Employees
Flexible and Compressed Work Schedules Act (the Act). In its statutory role, the
Panel is often referred to as the last step in federal sector collective bargaining --
the substitute for the strike and the lockout in the private sector. While
recognizing the importance of its statutory role, since its inception in 1970, the
Panel has been committed to assisting parties in the voluntary resolution of their
bargaining impasses. The current Panel has continued this tradition of voluntarism
by emphasizing interest-based bargaining and collaborative approaches to problem
solving.

The Panel consists of seven Presidential appointees who serve on a part-time basis,
and are supported by a small full-time staff. The Statute requires that Panel
Members be appointed “solely on the basis of fitness to perform the duties and
functions involved, from among individuals who are familiar with Government
operations and knowledgeable in labor-management relations.” The fact that my
colleagues are eminently qualified to serve in the positions to which thay have been
appointed is a significant point | will return to later in this statement.

STREAMLINING THE PROCESS

I would like to begin my observations concerning the issue of streamlining by
stressing a central fact for the Committee's consideration. The Federal Labor
Relations Authority (FLRA) is the only federal agency created by the Civil Service
Reform Act of 1978 whose focus is the protection and regulation of the rights of
institutions: agencies and the unions representing agency employees. It is within
the context of collective bargaining that the rights and obligations of the parties
under the Statute are manifested. While the Panel is one of three components
within the FLRA, this central fact defines the functioning of all of the components.
Jn contrast, other federal agencies involved in resolving work place disputes focus
primarily on the rights of individuals. in considering the ways in which the federal
system may be streamlined, therefore, it is crucial not to overlook the distinction
between institutional and individual rights which various federal age!
designed to regulate, for it is woven into the fabric of existing legislation.

Chair Sagal has testified that the goal of streamlining the federal employee dispute


33

The first line of defense against the costs and complexities of the
current appeals system is, we believe, effective alternative dispute
resolution, or ADR, at the agency level. We believe that ADR initia-
tives are consistent with the focus of your subcommittee’s concern
with the appeals process, and we would urge that, at the same
time efforts are made to reform the formal appeals systems, equal
efforts are made to prevent and resolve disputes at the agency
level.

This subcommittee’s initiative is the first legislative look at the
appeals systems in many years. There are many stakeholders in-
volved. The systems have significant historical origins and involve
fundamental values. For example, the current right to a third party
appeal stems from the Veterans Preference Act of 1944. Further,
the systems are encrusted with years and volumes of legal deci-
sions.

In short, it is a complex and controversial area. Consequently,
OPM is not recommending at this time specific changes. We believe
there needs to be more information gathering, analysis, and dialog
among the stakeholders before specific positions are taken.

Nonetheless, we believe there are two specific areas which di-
rectly affect OPM’s responsibilities where we would like to suggest
the possibility of some changes. In one of these areas OPM litigates
hundreds of appeals at the Merit Systems Protection Board every
year that arise under the Civil Service Retirement System and the
Federal Employees Retirement System.

Many of these appeals concern straightforward provisions of law
with which an appellant disagrees but which neither OPM nor the
Board has authority to waive. An example would be a foreign na-
tional employee of the Navy Department who never contributed to
the retirement system but believes he should nonetheless receive
an annuity.

In a case like this, the employee receives initial and reconsider-
ation decisions from OPM that explain why he or she is not enti-
tled to an annuity. However, under current rules a person also has
a right to a hearing at MSPB, and we believe there may be room
for streamlining in this particular area.

A second area, and one we alluded to earlier, is OPM’s central
role in intervening in appeals to ensure that its regulations are
properly interpreted and that the meaning and intent of the civil
service laws enacted by Congress are adhered to.

This special role—this special OPM role principally manifests it-
self in appeals of adverse actions and performance-based actions.
Employing agencies possess no power to appeal erroneous decisions
to MSPB and arbitrators.

OPM alone possesses authority, although very limited, to seek ju-
dicial review of adverse actions of MSPB and arbitrators. We do
this to protect the interests of the Federal Government and the
civil service when the Director of OPM determines that an erro-
neous decision would have a substantial impact on civil service law.
Any changes to the appeals system need to preserve and possibly
strengthen this role.

Currently, the U.S. Court of Appeals for the Federal Circuit ma:
second-guess OPM’s determination of substantial impact by decid-
ing which of the small number of cases that OPM chooses to appeal


168
the administrative adjudicators and tribunals previously listed.

Were the election of remedies in civil service, civil rights, and labor management
relations disputes a straightforward matter, this list of forums standing alone would beg for
simplification. But the situation is actually far more complicated than even this intimidating
list suggests. Disputes can arise over the various election of remedies themselves, thus
triggering parallel litigation that can and does result in inconsistent rulings.

I am a strong proponent of workplace due process for employees of our federal
government. [ believe that such process can be accomplished far better, and far more
efficiently. if one agency is charged with that mission. One agency, with the consolidated
mission of providing a forum for the resolution of merit systems, civil rights, and labor
‘management relations disputes, would reduce the costly overspecialization that has hampered
the federal personne! field for so many years, and compel a worthwhile balance and
integration of the independent goals of these programs.

At the judicial level, it would be advisable to consolidate the review of administrative
decisions in one tribunal. Under Article One of the Constitution, the Congress has created
specialized courts to resolve tax issues (the U. S. Tax Court) and government-related claims
(the U, S. Court of Federal Claims). It could do the same in the federal personnel area.
thereby relieving other federal judges of resolving these kinds of cases.

Just this year, the Congress has created a relatively comprehensive and integrated
program for assuring workplace due process in the Legislative Branch through the newly
established Office of Compliance. Such an integrated approach would benefit the Executive

Branch and 1 would urge that the Congress move forward to achieve such a reform
expeditiously.

‘Thank you for this opportunity to testify on such an important issue to our Federal
government and | would be pleased to respond to any questions you may have.

4


133

give examples of how your agency is already using ADR and do you
see any down side from expanding the use of it?

Mr. CaASELLAS. Well, we have just adopted, for this fiscal year,
the use of ADR in the private sector part of what we do; and the
question is whether the appropriations will be there for us to im-
plement it, to do it effectively. But we will do it on a pilot basis.
We can’t do it throughout the agency.

We have—I am currently reviewing the Federal sector side, and
I suspect that what’s going to come out of that is a recommenda-
tion for greater use of ADR in that context. On the private sector
side, the ADR we are talking about is voluntary mediation-based

IR.

Mr. ERDREICH. At MSPB, of course, we are like a court. We re-
ceive disputes that come to us. But my predecessor, who you are
going to hear on the next panel, Dan Levinson, as chairman, began
an accelerated settlement effort of cases that initially were ap-
pealed to us and we, of course, continue that effort. We settle about

alf of the disputes that begin—that come to us that haven’t been
dismissed, so that we have got a major settlement effort.

And when I came in as irman, I started also a settlement ef-
fort at our appellate review level so that we are seeking to get the
parties to resolve the disputes. But, again, they already come to us
as disputes. It has to—must begin at the workplace, which is be-
yond our domain, though there may be some linkages that Con-
gress could put in place that would encourage ADR before it comes
to us. But that’s just a suggestion that Congress could do.

But as far as when it—the dispute begins in our domain, we
have a major settlement effort to try and resolve them, with the
parties resolving their own disputes.

Ms. SEGAL. The FLRA, we have an agency-wide emphasis, as
well as a program on increasing the use of interest-based problem-
solving techniques in the workplace, and alternative dispute resolu-
tion techniques to formal adjudication.

We have essentially a three-part strategy. One is to give the
agencies and the unions that represent Federal employees the tools
to use to solve problems themselves. The second part of the strat-
egy is to directly intervene in their disputes if they—if some assist-
ance in the mediation or facilitation mode will help them. And the
third part of the strategy is to create a clear and stable law.

My experience as a private sector mediator taught me very per-
suasively that if the shadow of the law isn’t clear, it’s very hard
to get alternative dispute resolution within it.

We have lots of examples of success. In our representation area,
an intervention this past year by our Office of General Counsel, in
one facility that had filed some 65 representation petitions, 50 of
those petitions were withdrawn because the parties were able to re-
solve the problems by talking to them—talking to each other.

At our Federal Service Impasses Panel, 12 percent—there has
been a 12 percent reduction in cases where the panel has had to
impose a collective bargaining term. And that’s because of the pan-
el’s work in encouraging parties to come to agreement themselves.

We had a 30 percent reduction in unfair labor practice charges
filed over the last—the last 2 years, and we believe there is a direct


17

agencies reviewing each other's decisions. Matters are further
complicated by the fact that each of the adjudicatory agencies
has its own procedures and its own body of case law. All but OSC
offer federal employees the opportunity for hearings, but all
vary in the degree to which they can require the participation of
witnesses or the production of evidence. They also vary in their
authority to order corrective actions and enforce their

decisions.

What's more, the law provides for further review of these
agencies’ decisions--or, in the case of discrimination claims,
even de novo’ trials--in the federal courts. Beginning in the
employing agency, proceeding through one or more of the
adjudicatory bodies, and then carried to conclusion in court, a

single case can take years.

An_inefficient System: The Mixed Case Example

The most frequently cited example of jurisdictional overlap in
the redress system is the so-called “mixed case.* A tenured
federal employee who has been fired (or who has experienced any
of several other major adverse actions such as a demotion) can
appeal the agency's decision to MSPB. Likewise, a federal

employee who feels that he or she has been discriminated against

‘In a de novo trial, a matter is tried anew as if it had not been
heard before.

5


61

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217

a future Congress must hold a hearing to examine the inefficient
operations of a consolidated federal grievance agency and
determine whether or not the component parts of that agency must
be separated into independent adjudicatory and administrative
agencies. Rather than merely swing the pendulum from one side to
another, we should actually Correct the problem and fix the
process.

Again, I appreciate your having this hearing today and I
look forward to the testimony of our witnesses.


130

can mitigate against qualified, good, needed people from advancing
or getting into the positions that they ought to be in.

And I guess the way that you might get at that, discerning
whether this is perception or reality, is to take the proportion of
minorities within the public sector work force and in the private
sector work force—obviously it’s a lot higher in the public sector
work force—and then take the proportion of personnel complaints
and see whether that proportion is significantly greater than the
proportion of people in the work force. Then the only iment.
would be that, in fact, racial discrimination is the sole attributable
factor to the difference in those two proportional numbers.

Can you comment on that?

Mr. CaSELLAS. Well, I point out—I would——

Mr. Moran. Do you think it’s a problem, in the first place?

Mr. CaASELLAS. Well, I—whether that perception exists, it prob-
ably does in some places; I point to the private sector. You know,
we deal with some 33,000,000 employees and 600,000-plus private
sector employers, and I can point to some model employers who
have very good records with regard to women, minorities, people
with disabilities, who have their own, “private justice systems,” in
a sense, ADR, internal ADR and mediation that work. And so it’s
hard to generalize that that perception is one that is so pervasive
and prevailing that it is causing managers to stop doing things
that they need to do.

I point out, as I did in my statement, though, that we don’t see
any larger numbers of resolutions, that is, proportionally higher
resolutions, of those personnel issues, evaluation issues, that in-
volve discrimination complaints as well. So empirically we don’t
have any proof that that perception is borne out in terms of how
people are being evaluated and whether those evaluations are, in
fact, based on performance as opposed to something illegal under
the civil rights laws.

Mr. Moran. Yes. Well, that’s interesting. The perception is clear-
ly real; whether the—what it’s based upon is. I would like to see
some numbers if we have them available.

I just have one further quick question, Mr. Chairman, of Ben.

Chairman Erdreich, you have seen the GAO report, particularly
where it deals with mixed reviews. Would you agree that we ought
to try to do away with the mixed reviews?

Mr. ERDREICH. I avoided that answer last time, Jim.

Mr. Moran. I know. That’s why I am trying again.

Mr. ERDREICH. I don’t think it’s my role to make that policy judg-
ment. I would agree, though, with what the chairman of the EEOC
said, that there are a small number of cases that end up in this
box of this review. We haven’t had a special panel in 10 years. And
in the last year, my number was—140 cases went from us to
EEOC, and they disagreed with one of those cases, and we deferred
to them, as we have done over the last 10 years.

I honestly don’t think it’s a big problem, and I don’t think the
curing of the problem is going to in any way change this large
structural system we have of dealing with disputes. So I would lil
to avoid the answer again.

Mr. Moran. I see. Well, you just did. But I only suggest that it’s
not just the quantity, because you can—you can throw out a num-


114

MIXED CASE - RECEIPTS AND CLOSURES

FY Total Mixed Case Mixed Case
Receipts / Closures Receipts Closures
93 6361 / 5490 178 161
2.8%) (2.9%)
94 7141 | 5678 173 207
2.4%) 3.6%)
95 8152 / 6017 158 153
(1.9%) (2.5%)



116

/ON SS

FEDERAL SECTOR

wey EQUAL EMPLOYMENT OPPORTUNITY
29 CFR PART 1614
SUMMARY

ORGANIZATION

Part 1614 is structured into six subparts:
Subpart A: Agency programs promoting equal_ employment
opportunity, and procedures for processing individual and
class complaints of discrimination and retaliation

Subpart B: Additional provisions on processing certain types of
complaints (Age, Equal Pay, Rehabilitation Act, and class)

Subpart C: Explains relationship among EEO process, negotiated
grievance procedure and Merit Systems Protection Board
appeals

Subpart D: EEOC appeals and the right to file civil actions under each
EEOC administered statute

Subpart E:  EEOC’s policy on remedies and relief for discrimination

Subpart F: Miscellaneous provisions applying to EEO programs

COVERAGE

Applies to all complaints of discrimination including those under
the Equal Pay Act.

(ATIVE

Each agency shall maintain a continuing affirmative program to promote equal employment
opportunity and to identify and eliminate discriminatory practices and policies. Part 1614
outlines specific objectives and tasks that agencies must achieve -- from appraisal and
communication to reasonable accommodation and reassignment.


4

denials of within-grade increases. The Merit Systems Protection
Board has had kind of an up and down history in terms of public
support and use by the White House. At times, they have been
completel; marginalized. At other times, they have been used rel-
atively effectively.

The Federal Labor Relations Authority administers the Federal
Labor Relations Program and the statute that protects the rights
of Federal employees to participate in unions.

And then we have got this Office of Special Counsel, the inves-
tigative and prosecutorial agency, that goes before the MSPB.

[t seems on paper that it is more than is needed for an efficient
and effective appeals process. But they all have their individual
role, and right now each of those missions of each of those agencies
is necessary, both from the standpoint of management as well as
employees.

T think that the Processes that they conduct need to be stream-
lined, and we would at least do that in civil service reform, but we
have got to make sure that what we set in place, with whatever
civil service reform bill we undertake, it is not going to just rep-
resent another swing of the pendulum.

You know, so often we decentralize and then we figure it is far
more efficient to centralize and to put everything in one ,
and then 4 years later we decide it ought to be decentralized, it is
too bureaucratized in the one agency, and so on. I hope we can put
together a structure that has an enduring quality to it, if not a ra-
tional one.

So with that, I am anxious to hear the witnesses. I appreciate
your having the hearings, Mr. Chairman.

Mr. Mica. I thank the gentleman and would yield for an opening
statement to the vice chairman, Mr. Bass.

Mr. Bass. Thank you very much, Mr. Chairman.

I would just like to associate myself with the remarks of both the
chairman and the ranking member. I am looking forward to the
testimony of the witnesses, and I will yield back. I ask unanimous
consent to submit a written statement for the record.

Mr. MICA. Without objection, so ordered.

[The prepared statement of Mr. Bass follows:]


93

traditional investigation methods. These approaches provide the parties with an
alternative method of dealing with their disputes without resort to a time
consuming, costly investigation that may not address the real issues in dispute that
are separating the parties. This policy is an extension of the intervention processes
of the OGC that were described above, which have been used to assist high filers
of unfair labor practice charges. We will now be making the: itation,
intervention, training, and education programs available to all parties.

STREAMLINING THE FEDERAL APPEALS PROCESS

Efforts at streamlining federal dispute agencies should take into account the

spe rights which the dispute agencies are authorized by law to protect. Some
of these rights are personal to individual employees. For example, the right to file
an appeal to the Merit Systems Protection Board (MSPB) over an adverse action, or
the right to file an appeal to the Equal Employment Opportunity Commission
(EEOC) over an allegation of discrimination, are individual rights. These individual
rights are not within the jurisdiction of the FLRA. Also, the vast majority of third
party actions involving poor performers are not within the jurisdiction of the FLRA.

Unlike the EEOC and MSPB, the FLRA addresses the statutory rights given to
institutions. For example, the Federal Service Labor-Management Relations Statute
confers upon union representatives and management representatives the right to
‘engage in among other things, good faith collective bargaining. Protecting
institutional rights is very different than protecting individual rights. Institutions
quite frequently are engaged in a course of dealings over a long period of time. To
solve the problems of an institution, the federal labor-management program must
develop a systemic solution that will survive individual personalities and people.

The OGC has developed an organizational culture unique to prosecutorial /
investigatorial agencies charged with the administration of rights based federal
laws. We are capable of investigating and prosecuting violations of law with a
high degree of proficiency, and at the same time providing services which assist
the parties in developing long term solutions to their problems.
as the trainers of first resort for the parties to learn their responsibilities un
Statute, while at the same time we are enforcing statutory rights and obligations in
a manner which allows the parties to resolve the underlying dispute and enhance
their long-term relationship. We have developed an approach to fulfilling our
prosecutorial responsibilities which is part investigetor, part prosecutor, and part
trainer, but most of all, a full time problem solver. This unique approach which
serves the parties well in the federal sector would not survive in an atmosphere
that only fostered an adversarial approach.

Most important, the FLRA represents government's integrated approach to the
regulation of a labor-management program involving these institutional rights. The

6


38

ADEQUACY OF THEIR PERFORMANCE, INADEQUATE PERFORMANCE
SHOULD BE CORRECTED, AND EMPLOYEES SHOULD BE SEPARATED
WHO CANNOT OR WILL NOT IMPROVE THEIR PERFORMANCE TO
MEET REQUIRED STANDARDS.

*« EMPLOYEES SHOULD BE PROTECTED AGAINST ARBITRARY
ACTION, PERSONAL FAVORITISM, OR COERCION FOR PARTISAN
POLITICAL PURPOSES.

OPM WORKS TO FULFILL THIS RESPONSIBILITY IN A NUMBER OF WAYS--
* BY PROTECTING AND ASSISTING IN THE IMPLEMENTATION OF THE
MERIT SYSTEM PRINCIPLES;

* BY REGULATING FOR GOVERNMENT AGENCIES THE PROCESS TO
BE USED IN TAKING ADVERSE ACTIONS AGAINST FEDERAL
EMPLOYEES FOR CONDUCT OR PERFORMANCE REASONS, WHICH IN
TURN HAS A DIRECT IMPACT ON THE OUTCOME OF AN APPEAL;

+ BY USING OPM’S STATUTORY AUTHORITY TO INTERVENE IN
EMPLOYEE DISPUTES BEFORE THIRD PARTIES, INCLUDING
ARBITRATORS, SO THAT MATTERS HAVING SUBSTANTIAL IMPACT ON
MERIT SYSTEM LAWS AND REGULATIONS ARE CORRECTLY AND
CONSISTENTLY DECIDED; AND

» BY EXERCISING ITS OVERSIGHT ROLE TO IDENTIFY AND REMEDY

SYSTEMIC PROBLEMS THAT ADVERSELY IMPACT ON MERIT


158

Page 4 - Dr. Kirschstein

6. The EEO complaint resolution process should involve a
mediation phase. ‘The system should be an
administrative process, accessible to all employees,
rather than a complex and expensive legal process.

7. The NIH should conduct more open meetings.

8. The NIH should establish an independent party
responsible for overseeing the training and career
development of all employees.

CONCLUSION

The sessions on reprisal and retaliation were both productive and
informative. Over two hundred NIH employees participated in the
sessions through their direct .esvimony, or audience attendance
both live and through the NIH Town Mesting Network to off-site
locations. While it is still too early to judge the employees’
perceptions of the forum, initial reaction seems positive and
hopeful. The Task Force should continue to conduct open meetings
from time to time to demonstrate its continuing commitment to the
resolution of EEO problems at NIH.

The information provided to the Task Force at the sessions was
enlightening albeit sometimes devastating. From the testimony,
it would appear that reprisal and retaliation exist at the NIK,
in many forms, stem from a variety of reasons, and cross all
gender and ethnic groups.

I would be happy to answer any questions.

ae aa

Sandy/

Attachments,


125

POSTAL SERVICE REORGANIZATION CASES
DECIDED BY MSPB IN FY 1993-1995,

FY 1993 | FYis08 | FY1995 | TOTAL
Regional\Field Offices:
Tnitial Appeals 172 228 2,551 2,981
“Addendum Cases:
Attomey Fee Requests 131 131
Petitions for Enforcement Not Not 10 110
Board Remands Tracked =} Tracked a —s
Total Addendum 246 246
Total Regional Field Offices 172 228 2,797 397
Board Headquarters:
Petitions for Review 3 166 350 79
‘Reopenings 0 23 1 24
‘Compliance Referrals 0 0 1 1
‘Requests to Stay Board Order 0 28 0 28
Total Board 3 27 352 Th

The Postal Service began to implement its reorganization in the Fall of 1992, and the Board began to
receive appeals soon thereafter. Decisions in FY 1993 and FY 1994 and virtually all decisions in FY 1995
are in cases resulting from the original reorganization. Following the compliance RIF implemented by the
Postal Service in the Summer of 1995, MSPB began receiving “second wave” appeals challenging actions
taken in the compliance RIF. These cases continue to be processed in the regional and field offices and will
undoubtedly result in additional petitions for review by the Board. Decisions in these cases will be
reflected in our statistics for FY 1996

‘Addendum cases related to the Postal Service reorganization were not tracked separately from other
addendum cases until FY 1995. We know, however, that we did not begin to receive these addendum
cases until FY 1994 and that virtually none were decided in that fiscal year.

Compliance referrals are cases referred to the Board for enforcement after an administrative judge, ruling
on a petition for enforcement, has determined that the agency has not complied with the Board’s order.
Although only one such case was decided in FY 1995, approximately 50 have been decided in the first two
months of FY 1996, In these decisions, the Board ruled that the Postal Service’s compliance RIF
‘constituted compliance with the Board’s earlier orders reversing RIF actions.


100

able actions without protracted and costly litigation in 100 percent
of those cases.

It is our experience that when OSC determines that corrective
action is warranted in a particular case, the agency almost always,
because of an atmosphere and a developed trust of our credibility
and fairness, is receptive to an amicable settlement.

During the past 2 years, we conducted a thorough review of our
operations with the goal of improving and streamlining many of
our procedures. As a result of this review, we began a pilot project
in FY-94 under which interdisciplinary teams of investigators and
attorneys were established to handle cases from the inception of a
full field investigation through to the final disposition of a matter.
This is consistent with what one of the members of the first panel
discussed in terms of getting actively involved in the dispute as
early as possible with the parties, and getting them talking to each
other as early as possible to resolve things more quickly.

The object of the pilot project was to ensure meaningful input
from both investigators and attorneys in the process of identifying
issues and developing strategies. As evidenced by the record num-
ber of favorable actions in 1994, the pilot project was very success-
ful, and consequently, we have implemented that project on a per-
manent basis.

Additionally, I have submitted as part of my written statement
a history of the caseload and operations of our agency, as you out-
lined in your request for me to testify.

Mr. Chairman, it is my understanding that we are here today to
explore various ways to make the civil service dispute resolution
system more efficient. Certainly, there are many ways that the civil
service system could be modified, and I would be happy to discuss
with you any specific proposals that you care to raise. Regardless
of what revisions are proposed, I would ask you to consider the im-
portance of maintaining the independence of the adjudicatory and
prosecutorial functions within the civil service system; maintaining
the separation of these functions serves the interests of the govern-
ment, as well as the individual employees and organizations who
pursue their statutory rights through the system. It is my belief
that this separation of functions also promotes the credibility, con-
fidence and effectiveness of the entire system.

I welcome today this opportunity to exchange ideas with how we
can streamline and improve the civil service system, the due proc-
ess delivery system, all without harming the rights of those Fed-
eral employees that our agencies were created to protect.

Mr. Chairman and members of the subcommittee, as we move
forward from this hearing to further discussions, let me assure you,
I will be happy to lend my support and ideas as these efforts
progress through the Congress.

This concludes my prepared statement, and at this time, I will
be happy to answer any questions you may have.

Mr. Mica. Thank you for your testimony.

[The prepared statement of Ms. Koch follows:]


41

AND THAT, IN THE LONG RUN, THE EXISTENCE AND EFFECTIVE USE OF
THIS POWER CREATES LESS, NOT MORE LITIGATION. THIS IS BECAUSE
OPM’S PURPOSE IN SEEKING JUDICIAL REVIEW ON SUCH MATTERS AS
POOR PERFORMANCE IS TO CLARIFY LEGAL PRINCIPLES AND TO SIMPLIFY
THEIR APPLICATION IN A UNIFORM WAY. WE BELIEVE CLARITY IN
OVERARCHING LEGAL PRINCIPLES INEVITABLY WILL REDUCE THE NEED
FOR LENGTHY AND TIME-CONSUMING LITIGATION. THUS, A MORE
EFFECTIVE AND EFFICIENT CIVIL SERVICE MIGHT BE THE RESULT OF
CHANGES IN THIS AREA.

IN CONCLUSION, WE REEMPHASIZE THAT ANY CHANGES TO THE CURRENT
APPEALS SYSTEM OR THE APPEALS AGENCIES SHOULD REFLECT THE
NEED TO HAVE THE MOST EFFICIENT AND EFFECTIVE MERIT-BASED
GOVERNMENT POSSIBLE WHILE AT THE SAME TIME ENSURING THAT THE
RIGHTS OF INDIVIDUALS ARE PRESERVED. IN THIS REGARD, OPM STANDS
READY TO ASSIST YOU IN ANY WAY YOU THINK WOULD BE USEFUL.

THANK YOU FOR THE OPPORTUNITY TO DISCUSS THIS TOPIC WITH YOU

TODAY. I WILL BE HAPPY TO RESPOND TO ANY QUESTIONS YOU MAY
HAVE.

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