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ESTABLISHING A COMMISSION TO RECOMMEND

IMPROVEMENTS FOR THE FEDERAL EMPLOYEES

APPEALS PROCESS

HEARING

BEFORE THE

SUBCOMMITTEE ON THE FEDERAL WORKFORCE

AND AGENCY ORGANIZATION

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JULY 11, 2006

Serial No. 109–226

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCHMIDT, Ohio

BRIAN P. BILBRAY, California

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

DAVID MARIN, Staff Director

LAWRENCE HALLORAN, Deputy Staff Director

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON THE FEDERAL WORKFORCE AND AGENCY ORGANIZATION

JON C. PORTER, Nevada, Chairman

JOHN L. MICA, Florida

TOM DAVIS, Virginia

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

PATRICK T. MCHENRY, North Carolina

JEAN SCHMIDT, Ohio

DANNY K. DAVIS, Illinois

MAJOR R. OWENS, New York

ELEANOR HOLMES NORTON, District of

Columbia

ELIJAH E. CUMMINGS, Maryland

CHRIS VAN HOLLEN, Maryland

EX OFFICIO

HENRY A. WAXMAN, CALIFORNIA

RON MARTINSON, Staff Director

ALEX COOPER, Clerk

MARK STEPHENSON, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on July 11, 2006 ............................................................................... 1

Statement of:

Bransford, William L., general counsel, Senior Executives Association;

Colleen M. Kelley, national president, National Treasury Employees

Union; John Gage, national president, American Federation of Government Employees, AFL–CIO; and Karen Heiser, vice president, Federal

Managers Association Chapter 88 ............................................................... 55

Bransford, William L. ............................................................................... 55

Gage, John ................................................................................................. 70

Heiser, Karen ............................................................................................. 90

Kelley, Colleen M. ..................................................................................... 63

McPhie, Neil A.G., chairman, Merit Systems Protection Board; William

Tobey, Deputy Solicitor, Federal Labor Relations Authority; Cari M.

Dominguez, Chair, Equal Employment Opportunity Commission; Scott

Bloch, special counsel, U.S. Office of Special Counsel; Nancy H. Kichak,

Associate Director, Strategic Human Resource Policy Division, Office

of Personnel Management; and Scot Beckenbaugh, acting deputy director, Federal Mediation and Conciliation Service ........................................ 8

Beckenbaugh, Scot .................................................................................... 42

Bloch, Scott ................................................................................................ 28

Dominguez, Cari M. .................................................................................. 21

Kichak, Nancy H. ...................................................................................... 37

McPhie, Neil A.G. ...................................................................................... 8

Tobey, William ........................................................................................... 16

Letters, statements, etc., submitted for the record by:

Beckenbaugh, Scot, acting deputy director, Federal Mediation and Conciliation Service, prepared statement of ......................................................... 44

Bloch, Scott, special counsel, U.S. Office of Special Counsel, prepared

statement of ................................................................................................... 30

Bransford, William L., general counsel, Senior Executives Association,

prepared statement of ................................................................................... 58

Cabaniss, Dale, chairman, Federal Labor Relations Authority, prepared

statement of ................................................................................................... 18

Dominguez, Cari M., Chair, Equal Employment Opportunity Commission,

prepared statement of ................................................................................... 24

Gage, John, national president, American Federation of Government Employees, AFL–CIO, prepared statement of .................................................. 72

Heiser, Karen, vice president, Federal Managers Association Chapter

88, prepared statement of ............................................................................ 93

Kelley, Colleen M., national president, National Treasury Employees

Union, prepared statement of ...................................................................... 65

Kichak, Nancy H., Associate Director, Strategic Human Resource Policy

Division, Office of Personnel Management, prepared statement of .......... 39

McPhie, Neil A.G., chairman, Merit Systems Protection Board, prepared

statement of ................................................................................................... 11

Porter, Hon. Jon C., a Representative in Congress from the State of

Nevada, prepared statement of .................................................................... 4

(1)

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

TUESDAY, JULY 11, 2006

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FEDERAL WORKFORCE AND AGENCY

ORGANIZATION,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m., in room

2247, Rayburn House Office Building, Hon. Jon C. Porter (chairman of the committee) presiding.

Present: Representatives Porter, Davis, Norton, Cummings, and

Van Hollen.

Staff present: Ron Martinson, staff director; Chad Bungard, deputy staff director; Jessica Johnson, chief counsel, OPM detail; Alex

Cooper, legislative assistant; Brian Chatwin, intern; Mark Stephenson and Tania Shand, minority professional staff members; and Teresa Coufal, minority assistant clerk.

Mr. PORTER. I would like to bring the meeting to order, and

thank you all for being here today. We are going to be called to

vote in a few moments. I know you have experienced that phenomenon in the past. I think about 2:15 or 2:20, we are probably

going to be called to vote, and I think we have a series of three

or four votes.

Today’s hearing is Establishing a Commission to Recommend Improvements for the Federal Employees Appeals Process. Again, I

would like to thank everyone for being here today to discuss the

formation of a Federal Employees Appeals Commission.

In a previous hearing, Justice Delayed is Justice Denied, there

appeared to be general recognition by the agency stakeholders and

the members of the subcommittee that problems exist in the Federal employee appeals process. The current system, implemented as

a result of the 1978 Civil Service Reform Act, is complex, often confusing and may have outlived its original purpose.

The GAO once had this to say about the current system: ‘‘Because of the complexity of the system and the variety of redress

mechanisms it affords Federal employees, it is inefficient, expensive and time-consuming.’’ In hopes of examining and potentially

reforming the process, I have disseminated a draft legislative proposal to establish a commission whose purpose would be to study

the challenges in the current Federal employee appeals process,

2

and the many potential solutions available to increase the efficiency and fairness of the process.

In the first hearing, we shed light on some of the more glaring

problems with the current system generally: appeals take too long,

are handled inefficiently and are oftentimes frivolous. Federal employees and managers do not always receive a timely resolution of

their disputes, although the Merit Systems Protection Board

[MSPB], the Equal Employment Opportunity Commission [EEOC],

and the Office of Special Counsel [OSC], and the Federal Labor Relations Association [FLRA], all conduct their fiduciary duties admirably and are consistently striving for improvement.

I anticipate that by working together, these agencies can better

meet their administrative needs and the needs of the employees

and managers in assuring that justice is available to all.

In 1978, the current Federal employees appeals process was created with the expectation that splitting adjudication of employee

disputes into multiple agencies would resolve the problems with

the appeals system. Almost 30 years later, the current system has

improved little upon the same problems that spurred the original

changes. The current catalyst for change is the continuing inexcusable delays in the system.

Last year, this subcommittee looked at only one possible approach to improving the Federal employees appeals process by consolidating appeals and filtering them through a one-stop shop agency or Federal court with the responsibility for employee appeals.

Today, we are going to discuss the formation of a commission to

look at other possible approaches to fixing the flaws in this system.

The commission would be charged with exploring a whole realm

of options and solutions to repair a somewhat broken promise. The

goal here today is to discuss the form and the function of this commission. Our overall intent is not to curtail rights but rather to expedite justice, to ensure fair grievance procedures by eliminating

its inefficiencies.

For instance, I find it most unfortunate if our current belabored

system acts as a deterrent to aggrieved employees because they

fear it is a waste of time and not worth the risk involved in waiting

years for a resolution, while they often continue to work in the

same environment that gave rise to the claim in the first place.

Written testimony submitted by the National Treasury Employees Union [NTEU], and the American Federation of Government

Employees [AFGE] at last year’s hearing expressed a need for reform of the current appeals process. NTEU explicitly stated it

would be appropriate for the subcommittee to concentrate on exploring proposals to streamline the Federal sector EEO process.

The AFGE praised the subcommittee’s efforts, stating, ‘‘Streamlining the employee appeals process is a laudable goal for the subcommittee, and we admit there is room for some improvement in

this present system.’’ AFGE called the current system hopelessly

complex and expressed displeasure with the lengthy appeals routes

in our current system, which splits jurisdiction and requires overlapping review.

The commission’s membership that I am suggesting that we form

would be composed of 10 members, including representatives from

each of the stakeholder agencies and organizations represented by

3

the distinguished witnesses from whom we will hear shortly. With

the formation of this commission, all of you here today have an opportunity to study the problems and recommend solutions that will

best meet the needs of employees and managers seeking resolutions of employee grievances.

I expect the commission will offer recommendations for streamlining the process to benefit both employees and managers. Additionally, the commission may want to explore how claims and disputes are reviewed in the initial stages of agency review, how improvements at this stage may improve efficiency in the appeals

process. And in a June 2006 report the GAO found little evidence

of coordination at the operating level between EEOC and OPM developing policy, providing guidance and exercising oversight, despite overlapping responsibilities in Federal workplace EEO.

Coordination or lack thereof may need to be examined at every

stage of the process. The emphasis would be to focus on the process

and recommend program changes and legislative fixes, if necessary.

By establishing a commission, I wish to bring together representatives from the primary stakeholders, those who are best situated

to analyze what does and does not work within the current Federal

employees appeal system.

You are the experts, and I hope the visionaries who will have an

opportunity to advise Congress as to how the Federal employee appeals process can be improved and streamlined at all levels. The

subcommittee needs your assistance to build on a solid foundation

to create a more efficient and effective model to reserve the valuable rights of Federal employees. There are many tools at your disposal: institutional knowledge of what has and has not worked well

in the past; employees and managers who have been through the

process and see room for improvement; vast advancements in technology; alternative dispute resolution with the potential for resolving employee disputes early in the process; and countless other resources to draw upon.

This commission will have the opportunity to work together and

recommend improvements to better meet the best interests of us

all. I commend you for being here today and for your willingness

to continue to work together to tackle a complex issue. We need to

enhance our approach to achieving a just, efficient and effective

employee appeal system. I am confident with your expertise we can

reserve the rights of Federal employees while at the same time increasing the efficiency and effectiveness of the Federal employees

appeals process.

[The prepared statement of Hon. Jon C. Porter follows:]

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Mr. PORTER. With that said, I would like to invite our first panel

to share some of their comments. But first, I would like to acknowledge that we now have a quorum present. Our meeting is in full

compliance. I would also like to recognize the ranking minority

member, Mr. Davis.

Mr. DAVIS. Thank you very much, Mr. Chairman, and let me

thank you for calling this hearing. I also want to thank all of the

witnesses who have agreed to come and testify today.

Mr. Chairman, last year the subcommittee held a hearing on a

proposal by the Senior Executive Association [SEA], to streamline

procedures for hearing Federal employee allegations related to personnel practices. SEA proposed the creation of a Federal Employee

Appeals Court, which would combine most adjudicatory functions

currently performed by the Office of Personnel Management, the

Merit Systems Protection Board, the Equal Employment Opportunity Commission, the Federal Labor Relations Authority and the

Office of Special Counsel. Under the proposal, the decisions of this

court would be final and not subject to appeal, except in the case

of employment discrimination.

During consideration of the SEA proposal, one of the witnesses,

MSPB Chairman Neil McPhie, proposed as an alternative the creation of a commission of relevant stakeholders that would suggest

changes to the system. Creation of such a commission is the subject

of today’s hearing. However, we need to be clear about what the

problem is before a commission is created to solve it.

There does not seem to be much complaint with the process with

regards to the MSPB or FLRA with the exception of so-called

mixed cases, which involve both MSPB and the EEOC. If that is

the case, it would be better if the commission focused on the current process for resolving discrimination complaints in the Federal

work place.

Another concern is that the commission would be made of six political employees that represent the MSPB, FLRA, the EEOC, OSC,

OPM and the Federal Mediation and Conciliation Services. Two of

the commission’s representatives would be Federal supervisors or

managers and only two union representatives would sit on the commission. This is particularly troublesome because it is not clear

whether the commission would have to reach a consensus on the

final report or recommendations, or if there would be just a report

of dissenting views.

I need only think of the processes used to develop the Department of Defense and Department of Homeland Security personnel

systems to know what happened when at the end of the day, the

majority does not have to reach a consensus with the minority on

how to proceed. Of course, all of us want to make sure that there

is fairness, that there is equity, and that we arrive at the best resolution of problems, so that we can keep them to a minimum.

I look forward to hearing from the witnesses on how to best address the concerns raised and the Federal appeals process. Again,

Mr. Chairman, I thank you for calling this hearing, also for the efficient manner in which you start. I noticed that you were already

going as I got here. [Laughter.]

And again, we thank the witnesses and thank you very much,

and I yield back.

8

Mr. PORTER. Thank you for the kind words of support. [Laughter.]

Just remember, we are going to start meeting in Las Vegas instead of here at the Capitol, and so make sure you are on time,

OK? [Laughter.]

Thank you very much.

Mr. DAVIS. There’s a heavy discussion going on right now about

that, that involves Las Vegas and Internet gaming.

Mr. PORTER. Yes, there is, as a matter of fact. What happens in

Vegas stays in Vegas. [Laughter.]

What happens in Rayburn stays in Rayburn, right? [Laughter.]

Thank you. We do have some procedural matters. I ask unanimous consent that all Members have 5 legislative days to submit

written statements and questions for the hearing record. Any answers to the written questions provided by the witnesses will also

be included in the record. Without objection, so ordered.

I ask unanimous consent that all exhibits, documents, and other

materials referred to by Members and witnesses may be included

in the hearing record, and that all Members be permitted to revise

and extend their remarks. Without objection, so ordered.

It is also the practice of this committee to administer the oath

to all witnesses. So if you would all please stand and raise your

right hands.

[Witnesses sworn.]

Mr. PORTER. Let the record reflect the witnesses have answered

in the affirmative.

I would like to get the first panel started, and then make sure

everyone is at the table, so the witnesses now will be recognized

for their opening statements. We ask you to summarize your testimony in 5 minutes. Your full statement may be added to the

record.

We are going to be going to vote in about 7 or 8 minutes, so possibly we can have possibly two, so you don’t necessarily have to

wait around. We will hear from Mr. Neil McPhie, Mr. Bill Tobey,

Cari Dominguez, Scott Bloch, Nancy Kichak and Scot

Beckenbaugh. We will start with Mr. McPhie.

STATEMENTS OF NEIL A.G. MCPHIE, CHAIRMAN, MERIT SYSTEMS PROTECTION BOARD; WILLIAM TOBEY, DEPUTY SOLICITOR, FEDERAL LABOR RELATIONS AUTHORITY; CARI M.

DOMINGUEZ, CHAIR, EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION; SCOTT BLOCH, SPECIAL COUNSEL, U.S. OFFICE OF SPECIAL COUNSEL; NANCY H. KICHAK, ASSOCIATE

DIRECTOR, STRATEGIC HUMAN RESOURCE POLICY DIVISION, OFFICE OF PERSONNEL MANAGEMENT; AND SCOT

BECKENBAUGH, ACTING DEPUTY DIRECTOR, FEDERAL MEDIATION AND CONCILIATION SERVICE

STATEMENT OF NEIL A.G. MCPHIE

Mr. MCPHIE. Good day, Chairman Porter, Ranking Member

Davis and other members of the subcommittee.

My name is Neil McPhie. I am the chairman of the U.S. Merit

Systems Protection Board. Thank you for permitting me to appear

today to testify about the proposal to establish a commission to

9

study the Federal employee appeals system. I commend the members of this subcommittee for their vigilance in exploring ways to

improve the procedures for processing challenges to personnel actions in the Federal Government.

I respectfully submit my written statement to the committee and

will use this time to provide some information and address some

areas of concern.

Recently, as you previously mentioned, the Senior Executive Association [SEA], proposed the consolidation of the existing complaint, appeals and grievances processes into a single system to be

administered by a Federal Employees Appeals Court. During last

year’s hearing on that proposal conducted by this subcommittee, I

suggested that SEA’s proposed and other recommendations warranted further study. I am pleased to have the opportunity to discuss the committee’s proposed mechanism for conducting such a

study.

As you know, Congress and the administration have placed significant focus on reform of the Federal personnel system. As such,

I believe the committee’s proposal presents a timely opportunity to

study the procedures used to resolve disputes arising in the Federal workplace. In recent years, Congress has granted both the Department of Homeland Security and the Department of Defense the

authority to establish new human resource systems. The administration has drafted a bill known as the Working for America Act

that would change pay, performance management and collective

bargaining rules for the rest of Government.

More recent legislation has been introduced addressing the employee performance appraisal process and the establishment of

training programs. I am not here before this subcommittee to speak

for or against any of those initiatives. As I have said time and time

again, the Merit Systems Protection Board is prepared to play the

role that policymakers designate for it, whatever systems that

emerge.

There is a perception that the multiplicity of laws and regulations that govern the Federal Government employment relationship

make the current dispute resolution processes too complex, confusing and time consuming. As I discussed in the earlier hearing, a

single personnel action may give rise to many different legal claims

that may be asserted before several different bodies. A study that

examines, among other things, the nature and extent of any overlap in the responsibilities or authorities of the multiple agencies

that consider such claims is a crucial first step in identifying ways

to improve the effectiveness of the Federal employee redress system as a whole.

In this regard, the EEOC recently issued a detailed report on the

processing of Federal sector discrimination complaints, suggesting

that system improvements in that area may warrant consideration.

Any study of complaint appeals and grievance processes would include a review of the operations of the Merit Systems Protection

Board.

And let me just touch upon some of the ways in which the Board

handles its own business. We have worked at the Board aggressively to reduce our backlog and our average case processing times.

The Board reduced its inventory of pending cases by 48 percent in

10

fiscal year 2005, and by an additional 16 percent in the first 8

months of fiscal year 2006.

Average processing time for administrative judges in the first 8

months of fiscal year 2006 was 88 days. The average case processing time for headquarters decisions was 265 days in fiscal year

2005, and that figure has been reduced substantially in the first 8

months of fiscal year 2006 to 154 days. We continue to identify

ways through enhanced technology and resource development to

work more efficiently and effectively.

All the members of the Board are committed to seeing the Board

carry out its designated role fairly and efficiently in whatever dispute resolutions systems policymakers devise. The proposed commission to study improvements to current complaint appeals and

grievance processes is certainly timely and will serve to provide the

critical data and information by which legislators can base their decisions.

In my view, the proposed members of the commission, to include

representatives from all stakeholders, to include Government agencies and labor, appears well suited to accomplish the objectives outlined in the bill. The proposed agenda and tasks are ambitious and

will require necessary time commitments from all members. I am

truly grateful to this subcommittee for recognizing the need and

importance of a study and for designating the chairman of the

Merit Systems Protection Board to chair the commission.

I look forward to this unique opportunity and challenge, and I

want to thank you for it. I will be happy to answer any questions

the Members may have. Thank you.

[The prepared statement of Mr. McPhie follows:]

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Mr. PORTER. Thank you, Mr. McPhie. We appreciate your being

here.

Next we will have Mr. Tobey, who is Deputy Solicitor of the Federal Labor Relations Authority.

STATEMENT OF WILLIAM TOBEY

Mr. TOBEY. Thank you, Chairman Porter, Ranking Member

Davis and members of the subcommittee. I am William Tobey, Deputy Solicitor of the FLRA, here today to provide a statement on behalf of Chairman Dale Cabaniss. Chairman Cabaniss asks that I

relay her apologies to you for being unable to attend today due to

unavoidable scheduling and travel conflicts.

If you do have specific questions for the FLRA, I will be happy

to take those back to the chairman, so that we can followup with

you in a timely manner. I will now turn to the chairman’s statement.

Chairman Porter, Ranking Member Davis, and members of the

subcommittee, thank you for the opportunity to appear before you

this afternoon, as you examine the idea of creating a Federal Employees Appeal Commission to study the challenges in the current

Federal employee appeals process and the realm of possible solutions available to increase the efficiency and effectiveness of the

process. I applaud your continuing interest and efforts to evaluate

ways to improve Government operations, while retaining important

due process rights for Federal employees.

We were pleased to appear before you last November to share

with you some background about our particular agency, its structure, and case processing. One of the issues that we were asked to

address at that time with respect to the employee appeals process

was the potential overlap of jurisdiction and the opportunity to

raise issues in alternative forums. In our experience and under our

statute, although there are examples of overlap, which I have reproduced as an attachment to this testimony, the issue of overlapping jurisdictions has not been a significant issue at the FLRA.

Previously I noted, and I am sure we would all continue to agree,

that there is room for continuous improvement, administratively

and operationally. Both the President and the Congress have promoted, encouraged, and challenged us all to strive to ensure we are

using taxpayer dollars and Government resources wisely, whether

through the President’s management agenda, OMB’s program assessment rating tool, or Government Performance Results Act reporting and committee efforts such as this one.

The Federal Employees Appeals Commission is one way for the

numerous stakeholders here today to address possible improvements in the current process. One alternative the committee may

wish to consider, however, is to seek the assistance of an independent entity or organization to accomplish the work of the commission, rather than the stakeholders themselves. I believe this would

enable all stakeholders to participate fully while also enhancing

the objectiveness of the final work product. For instance, the National Academy of Public Administration, or a similar organization,

not only is structured to undertake such an effort, but also could

provide a wealth of knowledge and experience from its many resources, including former Cabinet officers, Members of Congress,

17

managers, scholars, and others who could provide additional insight or perspective.

Mr. PORTER. Excuse me, Mr. Tobey, but we are down to about

4 minutes for a vote. So if you would hold your thoughts.

Mr. TOBEY. I am actually finished now. Thank you very much.

[The prepared statement of Mr. Cabaniss follows:]

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Mr. PORTER. My apologies for that. Thank you very much.

There is, I think, a series of about 3 votes, so it should be about

30 minutes, if things go well. Thank you. We will be in recess.

[Recess.]

Mr. PORTER. I would like to bring the meeting back to order. Our

30 minutes was Federal time, about 55 minutes. So thank you for

your patience.

Mr. Tobey, is there anything you would like to conclude with?

Mr. TOBEY. No, I am finished, thank you.

Mr. PORTER. My apologies for that.

Next we will have the Honorable Cari Dominguez, Chair, Equal

Employment Opportunity Commission. Thank you for your patience. It is good to see you again.

STATEMENT OF CARI M. DOMINGUEZ

Ms. DOMINGUEZ. Thank you, it is good to see you.

Thank you very much, Chairman Porter and Congressman Davis

and members of the subcommittee. I very much appreciate the opportunity to be invited back today to testify on this very important

topic. I am Cari Dominguez, the Chair of the U.S. Equal Employment Opportunity Commission.

Mr. Chairman, I do have a few comments to make, but request

that my full written testimony be made part of the official record.

As I have stated in previous testimony before this subcommittee,

I welcome and support your efforts to find ways to improve the efficiency and the effectiveness of the Federal EEO complaint and appeal processes. This afternoon we meet to discuss a draft bill that

would establish a Federal Employees Appeals Commission. As I

understand it, the commission would be charged with reviewing the

current appeals and grievance systems for Federal employees, as

administered by the EEOC, the Merit Systems Protection Board,

the Federal Labor Relations Authority and the Office of Special

Counsel. The focus of the proposed commission’s review would be

on identifying redundancies or overlaps of responsibility or authority by these agencies, as well as any procedural ramifications of

such overlaps.

The proposed commission would also look at timeliness issues,

particularly the amount of time it takes the subject agencies to

process matters brought before them. And of course, at the end of

this review, the commission would present to the President and the

Congress a report containing recommendations along with their

findings.

When I appeared before the subcommittee last November, my

testimony described the role of the EEOC and the complaint processes that we administer. I offered then my firm belief that there

is an urgent need to reform the Federal sector complaint processing

system. The current system is not ideal and Federal sector employees clearly deserve better.

I have shared, expressed concerns that the Federal EEO complaint process is too slow and cumbersome and subject to real or

perceived conflicts of interest. Unlike the processes of most of the

other agencies which receive complaints and grievances directly, an

EEO complaint is filed with and initially processed by the agency

that is accused of discrimination, and not the EEOC. The Federal

22

agency accused of discrimination investigates the complaint against

it. EEOC is not at all involved unless the complainant requests an

administrative hearing before one of our administrative judges.

Almost always, the complaint has languished for more than 180

days at the agency where it was filed before the employees comes

to EEOC to request a hearing. And even then, the complaint must

return to the agency for final disposition. Thus, EEOC’s ability to

affect the processing of the complaint is extremely limited until

late in the game when the matter is finally presented to us.

As I also noted in my earlier testimony before this subcommittee,

I believe that the primary area of EEO complaint processing most

urgently in need of reform is the initial processing conducted by

the agency where each complaint originates. It is the systems

lapse, and not any jurisdictional overlaps or redundancies associated with the missions of any of the agencies here represented,

which adversely affects overall complaint processing and certainly

undermines public confidence in the system. Even the mixed cases

we have talked about so often involving both EEOC and MSPB affect fewer than 3 percent of the cases which come before us.

Notwithstanding the obvious internal control problems associated

with Federal agencies conducting their own investigations, many

Federal agencies have made real improvements in the timeliness of

processing EEO complaints. For example, in fiscal year 2004, it

took Federal agencies on average 469 days to close an EEO complaint. The average processing time for closure this last fiscal year

was 411 days, a 12 percent reduction, but still considerably more

than the 270 days allowed by EEOC’s regulations for complaints

without a hearing.

Agencies are also becoming far more efficient in investigating

EEO complaints. In fiscal year 2004, the average time for investigating a complaint was 280 days. In 2005, it was 237 days. So

I am very, very encouraged that many of the Federal agency heads,

to whom I have directed my concerns about internal complaint

processing, have been receptive.

The recent trends in decreased investigative times and enhanced

resolution efficiencies are indeed good signs of progress. However,

we need more work in this area. Only 55 percent of agency investigations were timely completed in fiscal year 2005, and only 25.5

percent of the agencies met the regulatory timeframe.

At EEOC, we have significantly reduced the processing times for

the majority of the cases that have come before us. Our average

processing time for hearings has declined to 249 days, almost a 30

percent reduction from fiscal year 2004. And the average processing time for the appeal closures has dropped from 207 days in fiscal

year 2004 to 194 days in fiscal year 2005. We are really working

hard to address resource and operational constraints which can affect the efficiency of our case processing. But there are no indications of any impediment posed by any purported duplication of effort by our sister agencies, MSPB, FLRA and the OSC. Yet in spite

of these gains, I am convinced that the EEO complaint process can

be further scrutinized for greater efficiencies and enhanced performance.

With respect to the draft bill, while I would welcome an independent review of these systems, I would propose another alterVerDate 11-MAY-2000 11:49 May 01, 2007 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 C:\DOCS\34234.TXT HGOVREF1 PsN: HGOVREF1
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native. I would recommend that any commission studying this

issue include independent, external experts who would bring to

bear their extensive knowledge and expertise gained in a variety

of settings, both public and private sectors. The National Academy

of Public Administrators, the only congressionally chartered organization of its kind, would be ideally suited to examine this issue.

Other appropriate consultative entities include Excellence in Government and the Partnership for Public Service. These reputable

organizations not only apply higher-order thinking to these issues,

but also remove any questions or doubts pertaining to potential

conflicts of interest or perceived self-interest.

Again, I thank you very, very much for the opportunity to comment on this draft bill, and greatly appreciate your leadership and

support in this important aspect of our work. I will be happy to answer any questions that you might have.

[The prepared statement of Ms. Dominguez follows:]

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Mr. PORTER. Thank you very much.

Next we will have the Honorable Scott Bloch, Special Counsel,

U.S. Office of Special Counsel. Welcome.

STATEMENT OF SCOTT BLOCH

Mr. BLOCH. Thank you, Mr. Chairman, ranking member, and

members of the committee, and my distinguished colleagues on the

panel. I thank you for the opportunity to come before you and to

weigh in on this important issue of how do we best address complexities in the appeal system and possibly streamline it.

One of the problems I think that we confront in our agencies is

when we are not efficient, when we have too much complexity, too

many Kafkaesque layers of review. Then people lose faith in the

system, and the cynicism creeps in, where managers don’t really

take seriously the rights of employees, and employees don’t feel

that their rights are going to be observed, even if they file actions.

I believe the committee has properly located the questions that

are important in this issue. OSC itself is no stranger to these

issues. Because we have thousands of complaints in a variety of enforcement areas that we receive every year, and we are a small

agency, we realize the importance of utilizing proper procedures

and of streamlining.

In the past several years, my agency had a significant backlog

of cases, as did many of my colleagues’ agencies here. In the first

year of my tenure, we cut by half or more the processing times for

complaints in our screening unit. And we set up procedures to have

cases that took 2 to 4 years on average through the whole process

to take about a year.

How did we do this? Well, we set up a special projects unit

[SPU], to study problems and ways of streamlining and to utilize

best practices. At the same time, we also brought in an outside

management consulting firm that did a stem to stern analysis of

all our procedures and all of the acts that we go through in order

to process all of our complaints. And then they created these

charts, which I called snake charts, that resembled what we used

to call the Rube Goldberg puzzles because they were so complicated.

But we eliminated the backlogs within 18 months and slashed

our average processing time in our screening unit from 6 months

down to under 40 days and the prosecution, as I said, to about a

year. During this backlog reduction process, we more than doubled

our percentage of positive cases that go for further investigation

and prosecution to our what we call our IPD unit, and also doubled

the number of whistleblower disclosures that go to agencies for investigation, while eliminating that backlog as well. The point being

that one can streamline and at the same time not only protect employee rights at the level you have been doing, but actually improve

the protections of employee rights. That is a challenge that I would

issue to the committee, and to all of us if we are going to be involved in the process, that not only do we streamline, but we improve results for the work force.

As you remember, Mr. Chairman, bipartisan staff teams sent by

this committee exhaustively reviewed our backlog reduction procedures last year, along with yourself and Chairman Davis, had very

29

kind words for our efforts and for our results for whistleblowers.

I think this all bears on the issue at hand, whether to establish a

commission to study the ability to improve the Federal employee

grievance process. I think this is a very important project.

A well regulated system to handle complaints and appeals must

exist to protect the integrity of Government, because it ensures

that employees receive due process, and it ultimately preserves the

principles of the merit system. OSC will be proud to be a part of

finding solutions.

Now, one thing I wanted to point out to the committee is I prepared a chart, working with my excellent staff, and put it on one

page, and I believe all the committee members and others on the

panel have a copy of this, just how is it that an employee comes

through our system and comes to MSPB, what types of cases and

in what circumstances. And to show that yes, there is complexity,

but there is some method to the madness. And also to demonstrate

that I think there is some benefit to having visualized the process

in its entirety.

Now, this doesn’t include the FLRA, this doesn’t include all the

EEOC’s process or the agency’s EEO process. But one could do

that, and you could put it all on one chart and you could actually

see where things are coming and where they are going, where the

choke points are, where the bottlenecks are, where the problems

might exist and what if you lifted this or moved this around. So

that is one thing I think we can do that is concrete is to put together an understanding, both visually as well as written out, as

to what constitutes the nature of the problem.

But I want to caution the committee as well that we don’t want

to engage in draconian solutions that in any way remove employee

rights. I think we want to be careful not to be so anxious to reform

the system that we take away rights. I don’t think we have to do

that, I don’t think that is going to be necessary. I think that remedies can be fashioned and new approaches and streamlining can

be engaged in that are going to benefit agencies as well as employees, as well as all of the members here at the table.

And with that, I will conclude and be happy to answer any questions you may have.

[The prepared statement of Mr. Bloch follows:]

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Mr. PORTER. Thank you. We always like charts. [Laughter.]

Actually, it does help follow the flow. I appreciate it. Thank you

very much.

Next we have Nancy Kichak, Associate Director, Strategic

Human Resource Policy Division of OPM. Welcome. It is good to

see you again.

STATEMENT OF NANCY H. KICHAK

Ms. KICHAK. Thank you.

Mr. Chairman, Congressman Davis and members of the subcommittee, I appreciate the opportunity to represent the U.S. Office

of Personnel Management and Director Linda Springer here today

to discuss the idea of establishing a commission to study the challenges in the current Federal employee appeals process and the

realm of possible solutions available to increase the efficiency and

effectiveness of the process.

While the dispute resolution and appeals process is only one aspect of OPM’s interest in good government, it is an important one.

Workplace disputes with employees, agency actions taken against

employees and the dispute resolution processes that follow have

implications that can impact the morale and effectiveness of individual employees and their agencies. Central to any discussion of

consolidating and streamlining dispute resolution processes should

be the goal of making the Federal work force more effective and efficient while retaining its fundamental underlying principle of

merit.

Federal employees work hard and expect to be treated like professionals. The vast majority of Federal employees will never be involved in the dispute resolution process. But they want to know

that it is there and functioning effectively. They want to know that

whatever dispute they bring to the process will be adjudicated in

a timely, fair and impartial manner.

The current system for adjudicating workplace disputes has been

criticized as time-consuming, complex and producing inconsistent

decisions. The proposed legislation would create a commission to

study the current appeals processes and issue a report in 12

months with recommendations on a minimum of seven significant

topics. We agree that this is an issue that deserves attention and

we appreciate your leadership in exploring ways to address these

longstanding criticisms and improve the efficiency and effectiveness

of the process.

We do have some concerns regarding the proposal to establish a

commission to study and make recommendations. Our first concern

involves the short period of time provided, 12 months after the

commission’s first meeting, to study 4 broad areas and make recommendations on at least 7 distinct and substantial issues. We recommend that the period provided for the commission’s work be extended to at least 18 months after the commission’s first meeting.

We also believe that if a commission is established, the enabling

legislation should encourage the commission to consult with other

Federal agencies and independent organizations, not reflected in

the current draft bill, that have unique roles or expertise in the

Federal employee appeals process.

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Finally, the proposal would provide the commission with a director and staff. It does not, however, specify how the director would

be appointed. Since that official would presumably have a key role

in the administration and the ultimate success of the commission,

we suggest that the legislation clearly describe how that individual

is to be selected and who has the authority to make the appointment. Perhaps a majority vote of the commission would be required.

In sum, we agree there is room for improvement of the Federal

employee appeals process. We appreciate your leadership in this

area, and we look forward to continuing the dialog on this and

other important personnel issues. Mr. Chairman, thank you for the

opportunity to testify before you and the subcommittee today. I will

be happy to answer any questions.

[The prepared statement of Ms. Kichak follows:]

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Mr. PORTER. Thank you very much.

Next we will have Scot Beckenbaugh, acting deputy director,

Federal Mediation and Conciliation Service. Welcome.

STATEMENT OF SCOT L. BECKENABAUGH

Mr. BECKENBAUGH. Thank you, Chairman Porter, Ranking Member Davis and members of the subcommittee.

Before I begin, I would like the full written statement of my testimony to be submitted into the record at your pleasure.

I am Scot Beckenbaugh, the acting deputy director of the Federal

Mediation and Conciliation Service, and a career mediator with the

agency. On behalf of the Service, I want to thank you for the opportunity to speak today regarding the proposal to establish the Federal Employees Appeals Commission.

FMCS has reviewed the draft bill that has been circulated, and

again, welcome the opportunity to make several points regarding

the draft to the subcommittee. To do that, I first need to provide

you with some background, as a small Federal agency, about what

we do and how we do it. Our mediators provide conflict resolution

services to our Nation’s employers and their unionized employees

with the goal of preventing or minimizing economically disruptive

work stoppages and improving the labor-management relations

throughout this country.

Outside of the collective bargaining arena, FMCS provides employment mediation services, primarily in the Federal sector. These

Federal cases arise from allegations of workplace discrimination,

non-contract covered disciplinary actions, adverse action appeals

and in some instances, Merit Systems Protection Board claims. In

fiscal year 2005, we mediated approximately 1,200 employment disputes for Federal agencies.

We were created by Congress as an independent and autonomous

agency by the Labor Management Relations Act of 1947. From its

inception, a hallmark of this agency has been the strongly held

value and belief that the agency’s mission requires absolute neutrality, confidentiality and acceptability to the parties who participate in the mediation process. As I am sure all of you know, mediation is an entirely voluntary process that is done with the consent

of the parties in a dispute. And that the success or failure of the

mediation process is dependent upon the mediator’s ability to gain

credibility with the parties and to win their trust.

Throughout our near 60 years of history, we have avoided taking

part in legislative and public debates on labor-related matters of

policy, out of concern that by doing so we would jeopardize our position as neutrals on collective bargaining issues. If we are perceived as having taken a position that is hostile to the interests of

either labor or management on public policy issues, we risk losing

the credibility and acceptability of those parties and thus our effectiveness as mediators in their disputes.

As a neutral dispute resolution agency, we believe that we can

be effective only so long as neither labor nor management has reason to believe that we favor or disfavor policies or procedures or

proposed changes in those that are in their interest.

In appearing here today, I respectfully ask for the subcommittee’s understanding of our agency’s very unique position as a mediVerDate 11-MAY-2000 11:49 May 01, 2007 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 C:\DOCS\34234.TXT HGOVREF1 PsN: HGOVREF1
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ation agency. We wish to support and assist in the work of the subcommittee as well as the commission, if it is established, but would

respectfully request a modification of the current draft proposal.

We do have substantial experience at FMCS in the design and

development of dispute resolution systems. In fact, it is a part of

what we do every day. If the proposed commission on appeals process is established, we believe our proper function would be to work

with the commission in a technical assistance capacity. We can provide facilitation services for the commission, and if necessary, assist in hearings, fact-finding and debate. The commission itself can

draw upon our knowledge of dispute resolution systems.

However, I hope the members of the subcommittee do understand our strong belief that serving as a member of the commission

and being called upon to make recommendations or to endorse

whatever policy recommendations the commission might make

would likely compromise our credibility as neutrals and potentially

impinge on our ability to work effectively as neutral mediators.

We thank you again for the opportunity to state our views on

this proposal. I hope the subcommittee will take our comments into

consideration as you proceed on this legislation on the proposed

commission. And I would be honored to answer and take any questions you may have.

Thank you.

[The prepared statement of Mr. Beckenbaugh follows:]

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Mr. PORTER. Thank you very much.

Congresswoman, do you have any statements you would like to

make before questions?

Ms. NORTON. Mr. Chairman, I appreciate what you are trying to

do. I do want to say for the record that the last hearing was

enough to make everybody want to throw up their hands and give

it to somebody other than us to try to figure this out.

My own sense is that we have drawn in the whole herd here to

deal with a problem that doesn’t involve all of them, the mixed case

problem involving MSPB and EEOC mainly. I can understand,

though, Mr. Chairman, your desire to be, as long as one is going

to deal comprehensively about it, I continue to believe that the upfront problem is far more important than the appeal problem.

Many of these cases shouldn’t get to appeal. We need to look at

these agencies as to how they are funded. There is a $4 million cut

in the EEOC. I don’t care what they do, they are going to have

problems dealing with cases of every kind.

But even apart from funding, agencies which accept complaints

are likely to become inefficient unless they are constantly streamlining from the front end. Then of course, we would know what we

have to deal with in the appeal process and would probably have

a simpler problem.

Mr. Chairman, I must say that I do think that some group

should be given this problem. But I would have a very hard time

voting for a commission that had to go through the House and the

Senate. I mean, normally, the Government should be simply putting people, if we want the insiders to do this, we should simply

direct them to get together and in fact do it. I don’t see why a statute would be necessary.

If we wanted to set up a commission, you don’t set up a commission, I say, with all due deference, Mr. Chairman, of insiders. You

might set up an independent commission who then would have the

cooperation of these agencies, so that you get some fresh eyes to

look at this problem. What you would now get, it seems to me, are

people ensconced in the problem, some of them wish they had

never heard of the problem and will simply want to just get it over

with. Others will have to deal with it.

You will get uneven participation. I agree with you, sir, about the

Federal Mediation Service. The last thing you want is your fingerprints on any of this. And it may be that we don’t have the fingerprints of any of the agencies on it. There are going to be problems

with whatever we come forward with.

I felt I had to be here today, despite an urgent problem, because

I am one of those who has to confess as guilty, it is the case that

this system has been designed by the agencies and by Congress to

preserve as many rights as possible. In the process of preserving

as many rights as possible, we have balloxed up things for employees.

Mr. Chairman, I just want to say right from the beginning, that

as I see this commission, and you have tried to go down and just

get kind of representatives of everybody, I have a real difficulty

with the composition of the commission, with first of all the people

who get all messed up are employees. So they get two representatives. That is token representation, it seems to me, because if there

48

doesn’t have to be some kind of consensus, then they aren’t even

going to matter, they just will come in and testify, because their

‘‘votes’’ won’t matter. You have the SES and the managers, I have

no idea where they come out on this, poor souls, because they have

to handle much of this.

And then you have the people at the top of the agency, their special assistants or whatever, who, Mr. Chairman, I must tell you,

will have to learn this stuff first. Because they don’t deal with

these things. They are going to have to find somebody in their

agency who is knowledgeable enough to sit at the table with others.

So my own sense is that if we wanted to do something as fancy

as a whole big commission, instead of having an order from the

chairman to go and do what is necessary to fix this problem, then

my own suggestion would be that it would be an independent commission, fresh eyes, perhaps, I don’t know, academics, people who

we pay to study their navels to come in and tell us what is best

who have no dime in that dollar and might give us objective opinions that none of the agencies would have to fuss about, because

they would know that they had not come from inside, and they

would know that we hadn’t given more attention or more weight

to one agency rather than the other, because it might be more or

less involved.

Thank you very much, Mr. Chairman.

Mr. PORTER. Thank you. I think because of all the rains, we were

looking for Noah’s Ark. We have two of everybody, we could make

sure we had everyone’s interests addressed.

Ms. NORTON. Two of us, too.

Mr. PORTER. Yes, your point is well taken. Thank you.

Mr. Cummings, anything you would like to add in a statement?

Mr. CUMMINGS. I will be very brief, Mr. Chairman.

Just two questions. Ms. Dominguez, you noted in your testimony

that the mixed cases, we are seeking in the mixed cases, we are

seeking to streamline representing fewer than 3 percent of the

cases that come before EEOC, is that right?

Ms. DOMINGUEZ. That is correct, yes, sir.

Mr. CUMMINGS. I think that is noteworthy. You further suggested that the problem lies with the Federal processing system.

How would you recommend we reform it?

Ms. DOMINGUEZ. Mr. Cummings, I believe, as I have stated both

today and in my earlier testimony last November, that we really

do need to look at the investigative phase at the earlier stages of

the process, looking at how one takes in EEO complaints, and

being able to dispose of those complaints that have no basis before

they start getting into the system and really bottleneck the complaints that do have merit.

So our whole interest here is to try to streamline the process,

looking at it from the beginning, from the time an employee is concerned about certain practices or perceived discriminatory treatment that requires attention, and then take the process. At the moment, for example, the agency against which the complaint is filed

investigates itself, then they may come to the Commission toward

the tail-end of the process, then they may go back to the agency

for a final agency decision, at which point it could come back to an

appeal.

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So the process is extremely cumbersome. And really, I think the

victim in this whole scheme is the complainant.

Mr. CUMMINGS. That is all I have, Mr. Chairman.

Mr. PORTER. Thank you.

I think sometimes lost in this debate is the employee. I think

someone mentioned that earlier in their opening statement.

The bottom line is, the employee who has a legitimate complaint—what can we do to make sure that they can have proper

help and assistance in a very reasonable, timely fashion? I think

we each have our own areas of expertise, and as we were compiling

ideas for this legislation, we were trying to address as many concerns in these different areas as possible.

But the bottom line is, there are employees that need assistance

and need it rapidly and need it efficiently so they can take care of

their problem. I have heard lots of different suggestions from the

panel regarding makeup. And if we were to do a commission approach, I have heard numerous folks suggest that maybe we should

use an independent commission.

I guess I would just like to get an idea, from the independent

side, how many of you think we should just do an independent

panel?

[Show of hands.]

Mr. PORTER. One. OK. How many of our panel today thinks that

we should have an independent commission? One person. I would

like to now take a moment, I have heard all of you suggest some

changes to the existing legislation as far as who you think should

be on the board. Can we just take a moment, Mr. McPhie, what

was your suggestion on the makeup of the board? Did you have

one?

Mr. MCPHIE. I thought the stakeholders who are present. If there

are stakeholders who are not present, they should be present.

When we were talking about this and a board member asked the

question, well, what about the other employees who aren’t represented by a group, a union or whatever. And we scratched our

heads and we asked ourselves, who represents them? The fact is,

they are not represented.

Mr. PORTER. The groups other than those listed, is what you are

saying?

Mr. MCPHIE. Well, I said those listed appear to be the stakeholders.

Mr. PORTER. The employee groups?

Mr. MCPHIE. Yes. If you don’t get the stakeholders involved, I

submit that implementing anything is going to be tough.

Mr. PORTER. Mr. Tobey, what do you think?

Mr. TOBEY. Chairman Cabaniss’ suggestion was to consider employing the services of an independent organization like the National Academy of Public Administration to lend credibility to the

final work product of the commission.

Mr. PORTER. I think independent is your suggestion.

Mr. Bloch.

Mr. BLOCH. Well, I backed into a solution when we were talking

earlier during the break of a hybrid, of having both the stakeholders on the commission but also having the independent entity that

would fashion and oversee the process. I think you need both.

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Mr. PORTER. Ms. Kichak.

Ms. KICHAK. We think the process could be expanded to include

other agencies that are involved in the appeals process, plus the

Department of Justice. We do think independent organizations

should be consulted. But we think that the agencies involved in the

process, such as EEO and Merit Systems Protection Board are a

vital part of any board that is going to reach a solution on that.

Mr. PORTER. Mr. Beckenbaugh.

Mr. BECKENBAUGH. Certainly as an organization that deals with

dispute resolution process design, our only encouragement would

be regardless of how you decide to proceed to include as broad a

range of actual stakeholders, people who are going to be impacted

by outcome with the idea of getting the greatest buy-in in terms

of the outcome of the process. That is certainly when we facilitate

regulatory negotiations as a neutral body in those processes or a

public policy dialog, which is a service we provide. Those are certainly our recommendations pretty uniformly across the board in

these kinds of scenarios.

Mr. PORTER. Personally, I like the Congresswoman’s suggestion

that I tell you to go fix it. [Laughter.]

And you have 3 weeks.

But I know that is not reasonable, at least the timeframe, not

that we shouldn’t come back with a suggestion. That is the end of

my questions for the moment. Mr. Davis.

Mr. DAVIS. My approach to problem solving has always been to

try and learn as much about the problem as I possibly can. Then

I know what I am trying to solve. I have heard speculation, I have

heard possibilities, I have heard that we could do this, we would

have to do that.

Is there anybody who sees a definitive problem?

Yes, we have had problems with this mic all afternoon. So we

never know when it is working or what makes it work.

But is there anyone who would delineate a definitive problem

with the system and the process that we currently use? What is a

problem? Is there something that we need more of? Is there someone definitively left out who needs to be in? Is there some approach

that could be used or should be used that we are not using? Do we

need more mediation? Do we need whatever? Is there anyone who

would have a definitive approach?

Ms. DOMINGUEZ. Yes, Congressman Davis, if I may, from an EEO

perspective, there are numerous problems with the system the way

it is currently designed. It takes too long to dispense justice. When

someone comes in, alleging discrimination, and justice delayed, as

we know, is justice denied. So the system takes too long. The system is very cumbersome. There are too many levels of review, too

much going back and forth from the agency to an adjudicatory body

back to the agency. The system is very cumbersome.

And the system has also been criticized for the questions about

conflicts of interest. When you have an agency, for example, investigating itself, no matter how much effort is taken to make sure

that those processes are clean and removed from any conflict, there

is still that perception of conflicts of interest.

So from an EEO perspective, I can say without a doubt that we

just have too many cases languishing and that it needs to be looked

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at. We need an overhaul and we need to start from the beginning

phase of the process.

Mr. DAVIS. In my opening comments, I mentioned the fact that

there seemed to be not enough. I have some concerns relative to

the amount of union representation. Do we feel that there is

enough stakeholder spread or that there is the stakeholder balance

that we need to have in order to have greater assurance of a level

of equity in decisionmaking?

Mr. MCPHIE. I testified I think you do. AFGE and NTEU are two

very big, very important unions. They are at the table. I hesitate

to come forward and tell you I know the answer, because I think

if I knew the answer, why not just tell it to you and we could all

go home and we wouldn’t need a commission. I think the areas that

the committee chose to study are good areas. I think embedded in

those areas are problems that we ought to address. If you focus on

the expectation of the employee filing a complaint, seems to me

that person deserves an answer, up or down, within a reasonable

period of time.

To the extent that does not happen, we have to put our heads

together and come up with a system that preserves the opportunity

to get a fair shake of that complaint. But also, is that person, the

resolution of that complaint, quicker than we do it now?

Mr. DAVIS. So you are saying that the structure is very important, because otherwise, I mean, everybody can have a different

opinion or a different point of view, or can see things differently.

But if the structure is correct, then in all likelihood, the appropriateness of the solution will be balanced?

Mr. MCPHIE. Yes, I think part of it is a systems analysis. We

know we have issues with employees, we have employees, we have

employers, we have this job to do. We know we have issues, we

know people sometimes complain about different things. It seems

to me we have to devise a system that accommodates a resolution

of those issues. And we have to ensure that whatever we do, peoples rights are protected. They have a right to a hearing, for example. People forget, before the board, they get a due process hearing,

which is contained in the due process clause of the constitution.

These things are important.

So whatever we do, we can’t forget that. The question is, how do

we do it efficiently?

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

Mr. PORTER. Congresswoman Norton.

Ms. NORTON. Let’s try to take this vexing problem down to its

size. Mr. McPhie I guess would be the person to ask. What percentage of cases are mixed cases in the system in the first place?

Mr. MCPHIE. Well, I wouldn’t question what Chair Dominguez

says.

Mr. PORTER. What is that number?

Ms. DOMINGUEZ. Three percent.

Mr. MCPHIE. She said 3 percent.

Ms. NORTON. Are we talking about 3 percent of all the cases?

Mr. MCPHIE. But don’t forget, there are real people behind those

cases.

Ms. NORTON. Well, there are real people——

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Mr. MCPHIE. Every one of those persons deserves, in my opinion,

a response to their case. That case is important to them. Three percent of a sizable number means there are a lot of people out there

in that 3 percent. I chose to think of it as a people issue, and not

necessarily only as a numbers issue.

Ms. NORTON. Well, the people have thought to think of it as a

numbers issue, though, because they can’t get through the system

for a very long time. The reason I concentrate on how many cases

we are talking about is, we are talking about a whole big commission to deal with 3 percent of the cases. And I am just looking for

a way to deal with the chairman’s concern that might be more efficient and economical.

Let me ask this question. Mr. Tobey, do you know anything

about mixed cases? I am not asking this to embarrass you. In the

course of your professional work, have you had occasion to learn

much about mixed cases?

Mr. TOBEY. That kind of work has not come in my direction at

the FLRA too much. We have a somewhat different situation with

regard to our relationship to the other agencies. There might be situations which give rise to disputes that would be heard in a different forum, but there is not the same sort of a mixed case situation.

Ms. NORTON. If we are dealing primarily with mixed cases, there

would be a limited contribution you would have to make if you

were on this commission, I take it?

Mr. TOBEY. That is correct.

Ms. NORTON. How about you, Ms. Kichak? Do you know much

about mixed cases in your work at the Strategic Human Resource

Policy Division of the OPM?

Ms. KICHAK. Yes. One thing I know is that what has brought us

here today is not just mixed cases. Even though mixed cases are

very complex, the process for resolving disputes is not timely even

for cases that are not mixed cases. If the only problem with employee disputes was mixed cases, then you are right, you wouldn’t

need this many folks. But many of the problems previously described at EEO, I shouldn’t say problems, but the time that certain

cases take to reach resolution are not mixed cases. There is a timing problem in other kinds of cases also.

Ms. NORTON. So you think the commission is necessary to deal

with slow processing of cases throughout the Federal Government?

Ms. KICHAK. That is correct.

Ms. NORTON. Do any of you think that the best way to deal with

that problem would be to create a Federal appeals court? Does anybody there want to raise a hand for a Federal appeals court? All

right, I see by process of elimination we know one thing that won’t

be in the final recommendations if this is to be the group.

Do any of you yourselves feel that if this task were given to you

as Federal agencies that you could solve the problem?

Ms. KICHAK. I will say we at OPM do not feel we could solve this

problem alone.

Ms. NORTON. Then I don’t know why you ought to be on the commission. The commission consists of nothing except you all. Now,

if you don’t think you can solve the problem if we gave it to you

as a group, then why should we give it to you as a commission?

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Mr. MCPHIE. I am not certain that I agree that the problem cannot be solved. I think it can be solved.

Ms. NORTON. I am asking you, if we were to say to this group,

and here I am leaving out the chairman’s time limit, go, sit together for——

Mr. PORTER. Ms. Norton, you are sounding like a Republican, so

keep talking, you are doing fine. [Laughter.]

Ms. NORTON. Go, and a year from now, report back to us on your

solution to this problem. Do you feel that you could do that?

Mr. MCPHIE. I think it is a difficult task, but it can be done.

Ms. NORTON. I am asking you if you feel this group could do it,

sir. We are not asking if this is a task that was beyond any human

being to do. I am asking whether or not this group as a group, if

they were charged to do it, as a group, could do it.

Mr. MCPHIE. Well, since the group hasn’t met as a group, it is

very difficult to predict what is going to happen.

Ms. NORTON. So you don’t know if the group could do it or not?

Mr. MCPHIE. I think with the expertise, with a true willingness

to solve it, and a true willingness to report back, and of course it

is the will of the Congress, they can take the recommendations and

do whatever the Congress wants to do with it. But I think you will

get from this group an honest evaluation and suggestion.

Ms. KICHAK. Excuse me. If you asked me could OPM do it

alone——

Ms. NORTON. No, that is not my question.

Ms. KICHAK. Well, I am sorry, but I misunderstood your question.

Ms. NORTON. Could you, this group, the assembled group at the

table, could you do it if you were charged to do it within a year?

Ms. KICHAK. I think the assembled group at this table could

make suggestions to improve the process substantially. Personally,

we recommended more than a year, but I think within a reasonable

amount of time, this group collectively could make substantial recommendations, recommendations that would improve the process.

Ms. NORTON. Ms. Dominguez.

Ms. DOMINGUEZ. I would say that one of the alternatives that I

recommended would be to have an independent group with input

from all the stakeholders here. I don’t think you can do it by yourself. But I do think that we are so enmeshed in our day to day

issues, and all of us here are working very hard at management

reforms, and to do the things that we can do within the constraints

of the laws and the regulations that we administer.

So I think that we certainly can provide input. But I would like

to see it led by an independent body that would then involve all

of us and also do some independent evaluations of other good practices and benchmarks that exist.

Ms. NORTON. Yes, I kind of heard, I appreciate your comment,

Commissioner Dominguez, because I kind of heard in an earlier response a concern at the table that if you weren’t doing it somehow

your input would not be sufficient in this process, and one really

wonders about that.

Let me ask you this. Does the assembled group think that a

group like this would be helped if there were some independent

members added to the group?

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Ms. KICHAK. Yes.

Ms. NORTON. Anybody disagree with that?

Mr. MCPHIE. In fact, I think I observed a little bit earlier that

I don’t see it as an either-or proposition. I think the involvement

of groups like NAPA is very good, there is no question about that.

They have expertise, Max Dyer’s group, and so on. There is no

question.

But I don’t know why it is one or the other. I believe if the stakeholders can agree, it doesn’t matter what the experts say, the recommendations are not going to be consensual, and that is going to

be the trick.

Ms. NORTON. Do you think, in light of the fact that people are

ensconced in their own agency, have no reason to want to figure

out how these, have had no reason except as they may have arisen

anecdotally, to want to figure out how your agency does something,

do you think the involvement of so many agencies with different

degrees of concern and interest would affect the outcome? Some

agencies are more heavily implicated than others. Some will have

to speak far more often.

In light of that, do you think that a consensus process, rather

than a vote by some kind of majority, if you had some kind of process involving you it would be better?

Mr. MCPHIE. I think we should strive real hard to give you all

a consensus position. I don’t think this whole effort is best served

by having minority reports and majority reports and sub-minority

reports and so on. The whole purpose is to try to get stakeholders

to identify ways in which they can improve the systems they administer, period.

So the goal is consensus. It has to be.

Ms. NORTON. Well, thank you, Mr. McPhie. I must say that anything other than that would simply transfer the burden to a partisan group called the Congress of the United States. So without

a consensus, which would mean that all of you have had to compromise to some extent, which means recognizing that the other

agency has to be considered, without that kind of process, one wonders whether you would be making more problems than you would

solve. I appreciate your views.

Mr. PORTER. Mr. Van Hollen, it is a good thing you got here, because we are going to put you in charge of a committee. [Laughter.]

Thank you for being here. We appreciate it.

Mr. VAN HOLLEN. Let me just first of all apologize for being late.

I serve on another subcommittee of the Government Reform Committee, and there is a hearing ongoing right now. I am afraid I am

going to have to get back to that. But I just wanted to come by and

thank everyone on this panel for this testimony and the people who

are coming on the next panel. I do look forward to reading the testimony and trying to weigh the different issues. I was listening to

my colleague here talking about some of the very important questions that have been raised, and I look forward to trying to get the

answers from all of you on some of the questions that she and others have raised.

Again, I apologize for being late, and I apologize for having to

leave early. We have been unfortunately double booking some of

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these hearings on the same Government Reform Committee and

trying to jump back and forth. Thank you, Mr. Chairman.

Mr. PORTER. Thank you very much. We appreciate your schedule

and the challenges. Thank you for being here.

I would like to thank the panel. We appreciate your input. Thank

you.

And we will have panel two. We will be vacating the room at approximately 5 o’clock. We appreciate your patience.

Next on our panel will be Mr. William Bransford, the general

counsel, Senior Executives Association; Ms. Colleen Kelley, national president of the National Treasury Employees Union; Mr.

John Gage, national president of the American Federal of Government Employees, AFL–CIO; Ms. Karen Heiser, vice president of

FMA Chapter 88, Federal Managers Association.

Welcome and thank you for your patience. I know that you have

been very patient with us in the past, and we appreciate it again

today. Thank you.

Mr. Bransford, welcome.

STATEMENTS OF WILLIAM L. BRANSFORD, GENERAL COUNSEL, SENIOR EXECUTIVES ASSOCIATION; COLLEEN M.

KELLEY, NATIONAL PRESIDENT, NATIONAL TREASURY EMPLOYEES UNION; JOHN GAGE, NATIONAL PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL–CIO;

AND KAREN HEISER, VICE PRESIDENT, FEDERAL MANAGERS ASSOCIATION CHAPTER 88

STATEMENT OF WILLIAM L. BRANSFORD

Mr. BRANSFORD. Thank you, Mr. Chairman, members of the subcommittee.

I appreciate your invitation to testify on behalf of the Senior Executives Association about establishing a commission to recommend

improvements for the Federal employee appeals process. I testified

before this subcommittee 7 months ago on behalf of SEA regarding

its proposal for a Federal employee appeals court, a central place

to seek redress for legitimate Federal employee workplace complaints. As general counsel of SEA, I was pleased to put forward

our proposal as one idea to fix a longstanding problem.

The impetus for SEA’s proposal is the broken state of the Federal

employee appeal and complaint system. The hearing last November

revealed widespread consensus among the stakeholders in the system that significant problems exist with the current Federal employee system, which must be fixed to ensure fair and timely treatment for both the employee who files an appeal or complaint and

those who are accused of wrongdoing.

SEA believes that reform of this broken system must occur and

applauds this subcommittee for its work to develop the concept of

this commission. For many years, Federal managers and other employees have labored under a complaints mechanism that allows

employees numerous bites of the apple, a multitude of different

paths to pursue and the ability to tie up management for years

with what are often frivolous complaints. Some Federal employees

abuse the complaints and appeals process with impunity, slowing

down the system for those cases that truly need consideration.

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The current system has also made the Federal manager an easy

and convenient target. With pressure from both higher level management and subordinates, the Federal manager is often perplexed

about how and when to do the right thing. While Congress has occasionally grappled with this issue, we now have an opportunity to

develop a consensus on improvements from the stakeholders, employees, managers and agencies. We all acknowledge that problems

exist. The proposed legislation will provide a framework for real

discussion on change, which will lead to real solutions.

Having the key stakeholders in the Federal employee appeal and

complaint system around one table to study these issues will provide a healthy forum for resolving the myriad problems being discussed today. SEA is pleased that the MSPB will use its leadership

to chair this proposed commission and SEA is hopeful the commission to study the employee appeals process will soon become a reality.

While SEA has proposed a central place to seek redress for legitimate Federal employee workplace complaints, we believe there is

more than one path to appropriate reform, and we look forward to

working with other stakeholders to solve this vexing problem. The

question are: what needs to be changed and what needs to be uniformly incorporated across the system? Several facts are clear already and provide a good starting point.

The MSPB has performed well with employee appeals and we believe it provides a model for reform of the system. The board has

rapidly processed cases and is generally supportive of reasonable

management efforts to discipline problem employees and to respond to poor performance while at the same time preventing

abuses of the merit system.

Contrast the MSPB’s performance with what happens in a typical EEO case. According to the EEOC’s 2005 report, which shows

improvement over previous years, cases still take too long to resolve. EEO professionals often candidly admit that employees

sometimes mis-use the EEO process to raise complaints of job dissatisfaction when they lack evidence of discrimination because it is

perceived as the only forum available in which a matter can be

raised effectively and heard outside the agency. This is reflected in

the fact that only 1.5 percent of the total cases filed result in findings of discrimination.

One reason the EEO process is so clogged is that a very high percentage of those 23,153 complaints are fully investigated, even

though it is apparent to any informed observer that the complaint

lacks merit. Why are blatantly frivolous complaints so meticulously

investigated? Federal agencies are required to investigate themselves when an EEO complaint is filed, which is an obvious conflict

of interest. To address concerns about a process that has inherent

conflicts of interest, the Federal sector EEO system responds by

fully investigating and processing every EEO complaint, even

though it is obvious that it lacks merit from the outset.

And of course, some complaints do have merit. There is nothing

more frustrating for a Federal employee than to prevail in an EEO

complaint many years after it has been filed, and then to realize

that justice cannot be attained because circumstances have

changed in the lengthy time span during which the complaint was

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processed. Similarly, for those managers in the approximately

17,000 EEO complaints filed annually that lack merit, the burden

of managing those subordinate employees over the long period of

the complaint life span is unreasonable and should be relieved.

Thank you for the opportunity to testify. We look forward to

working with you and your staff and this proposed commission to

find common sense solutions to these complex problems.

[The prepared statement of Mr. Bransford follows:]

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Mr. PORTER. Thank you. We appreciate it, Mr. Bransford.

Ms. Kelley, welcome.

STATEMENT OF COLLEEN M. KELLEY

Ms. KELLEY. Thank you, Chairman Porter, Congresswoman Norton. It is a pleasure to be here on behalf of NTEU and the 150,000

Federal employees who we represent in 30 agencies.

NTEU has worked for over 65 years to improve and defend Federal employee protections, rights and benefits. We take very seriously the proper adjudication of the statutory and contractual

rights of our members, and any acts of discrimination or unfair

treatment toward them.

Last year, the subcommittee considered a proposal by SEA for

the establishment of a new court to be known as the Federal employee appeals court, intended to combine all appeal processes for

Federal employees into one forum. NTEU strongly objected to this

proposal. We have provided a detailed explanation as to the reasons for our objections to the subcommittee.

NTEU agrees that complaints should be resolved quickly without

compromising justice or fairness. We feel, however, that the proposed Federal employee appeals court is misguided. NTEU also believes that the proposal for a commission to recommend legislative

or structural changes to the appeals process misses the real issue.

The proposed legislation asks the commission to review consolidation of operations or agencies. We do not believe that replacing

or consolidating agencies with specialized expertise with a new entity that will have no particular expertise will improve the appeals

processes. The jurisdictions of the various affected agencies cover

complex subject matters and the career staff has built up significant expertise.

The proposed legislation also charges that the commission has

two other duties: to look at organizational, procedural and structural changes; and to look for ways to reduce the time for appeals.

It appears as though a concern with the processing of equal employment opportunity issues is the main force driving the desire for

change in the complaint and appeal process.

The answer is not study commissions or legal structural changes.

The answer is adequate funding and staffing at the EEOC and at

other agencies, so that they have the resources and the personnel

to do their job in a fair and a timely process. As we sit here today

and as we have heard referenced earlier, the administration is

making moves to cut the budget of the EEOC by $4 million. The

EEOC is understaffed. My understanding it has been under a hiring freeze since 2001, and the agency projects that its backlog of

cases will continue to grow again next year, as it did from the past

year.

It is totally understandable that neither employees nor managers

are pleased when cases linger on for ever-increasing lengths of

time. Congress should not be waiting for a commission study to

make a report when Congress has the authority to correct the problem this year. The EEOC budget should not be cut by $4 million,

but should be increased, so that additional staff may be hired.

EEOC funding should be at such a level that its backlog of cases

not only does not increase, but that it is actually reduced.

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It seems that this study commission is being charged with fixing

a car when the only problem is that the gas tank needs to be filled.

NTEU’s position is that these agencies should first be given the resources they need to do their job. Only then, if problems still exist,

should we explore structural, legislative and procedural changes.

And finally, Mr. Chairman, establishing a commission to recommend changes in the Federal employees processes is relay an

unnecessary waste of taxpayer money. NTEU and other interested

parties have given their views on the SEA proposal, and I am sure

that we will be happy to work with the committee on any other alternatives that improve the process without diminishing any party’s rights, such as winning adequate funding for the agencies that

need it.

I would also just add that the comments made about employees’

mis-use of the existing systems, you could make a long list of many

things that are abused, including many managers and executives

who may abuse the authority they have when dealing with employees. I don’t see anyone taking away the authority that managers

and executives have when they mis-use it, so I don’t see that employee rights should be taken away from them under the guise of

a commission to streamline a process when the known problems

with the process are not being dealt with.

Thank you, and I look forward to any questions you may have.

[The prepared statement of Ms. Kelley follows:]

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Mr. PORTER. Colleen, I like you, because you always tell me what

you think. I appreciate that. [Laughter.]

Thank you very much.

Mr. Gage.

STATEMENT OF JOHN GAGE

Mr. GAGE. Thank you, Mr. Chairman.

On behalf of the more than 600,000 employees represented by

AFGE, I want to thank you for this opportunity to present our

views on the issue of creating a commission to study streamlining

employee appeals.

The proposed commission would be charged with studying and

proposing revisions to the current Federal employees grievance and

appeals system, having four main duties: one, identifying overlaps

between the jurisdiction of these four agencies; comparing the average processing times of the various types of cases in agencies; identifying impediments to the fair and timely investigation of adjudication of such cases; and finally, presenting recommendations for

improvements in seven specific areas, to include possible consolidation of agencies and/or organizational, procedural or other changes

in order to improve the efficiency, effectiveness and fairness of

their appeal system.

AFGE cannot support the commission as proposed. It is too large,

has too broad a mandate, would take too long to deliberate, and

would lack any real credibility because its makeup is too heavily

weighted in favor of political appointees. Despite our opposition to

the commission as currently proposed, we appreciate the subcommittee’s expressed willingness to act in this area and certainly

believe there is room for improvement in three of the areas identified in the bill. These are: adequately funding the EEOC to reduce

its case backlogs, both Federal sector and private sector; improving

the EEOC investigation process, which presently takes much too

long and involves a built-in conflict of interest; and last, reforming

appeals of mixed cases, or those cases which involve two elements,

adverse action along with discrimination or other prohibited personnel practices.

I will discuss each of these problems briefly and discuss ways to

fix them which do not require additional study and which would be

cheaper, easier, more fair and better for all involved. If a commission is to be established, its charge should be limited to these three

areas. First, the EEOC must be adequately funded in order to reduce its huge backlogs, both in the Federal sector cases processing

and Federal sector appeals, as well as in the private sector. Since

2001, budget cuts and hiring freezes have crippled the agency, increasing backlogs numbering in the tens of thousands. Despite this

growing backlog, the agency has already lost 20 percent of its work

force, and has been unable to replace experienced investigators,

lawyers, paralegal and clerical staff because of a hiring freeze in

effect since 2001.

The remedy for the backlog is simple: provide the EEOC with

adequate funding so they can hire the additional staff needed to

process its Federal sector discrimination cases in a timely manner.

Any available funding should be put directly into the EEOC’s budget and earmarked for reducing case backlogs.

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AFGE would also support a proposal to remove the authority to

investigate EEOC charges from the employing agencies, and transfer this function to the EEOC itself. However, Congress would have

to allocate substantial funding to go along with this substantial

workload, so that the EEOC could hire adequate staff or arrange

for details or transfers of EEO investigators from the various agencies to a new central office or regional office.

The goal of the transition would be to complete all investigations

within the statutory mandate of 180 days. Such a reform could significantly improve both the quality, timeliness and the perceived

credibility of the Federal employee investigative process, and could

lead to better decisionmaking and fewer hearings in the long run.

However, the already overburdened EEOC should not be reassigned this responsibility without ensuring adequate funding. That

would be worse than the status quo.

The most pressing issue to reform is the cumbersome and duplicative appeal process for mixed cases, which involves two separate

causes of action, an adverse action coupled with allegations of discrimination or other prohibited personnel practices. Under current

rules, such cases could be heard in at least two separate administrative agencies and two separate courts. The solution to the problem identified in the Government employee appeals process is not

to merge the highly dissimilar MSPB, EEOC, FLRA and OSC into

a single super-agency. Instead, the real challenge is to cut down on

the number of multiple forums that employees can or in some cases

must use when attempting to process a single appeal to finality, especially the dreaded mixed case.

The solution to the problem of extraordinary delays and procedural confusion and processing of mixed cases is to simplify and

streamline the Federal appeals process by permitting employees to

choose a single forum to decide all issues in accordance with established law. Law and regulation could be revised to eliminate any

layer of cross-appeal among arbitration decisions, the EEOC and/

or the MSPB, no matter where the case arose. Similarly, employees

who elect to file cases with MSPB or EEOC in the first instance

should expect finality in their administrative appeals while retaining the right to seek de novo judicial review in appropriate cases.

Mr. Chairman, let me conclude my remarks by emphasizing that

the committee needs to redirect its streamlining efforts, one, away

from any proposal to create a commission, and two, toward the

heart of the confusion: the backlogs at the EEOC and the overlapping jurisdiction of the MSPB and EEOC, where simple discrimination cases can languish for years and where employees are forced

to file numerous appeals of the same case. Once an employee and

an agency get wrapped up in a mixed case, it may be years before

they see the light of day.

That concludes my statement, I will be happy to answer any

questions.

[The prepared statement of Mr. Gage follows:]

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Mr. PORTER. Thank you, John. You are pretty mellow today.

Mr. GAGE. Yes, I am. [Laughter.]

I just got back from Alaska. It is mellow up there.

Mr. PORTER. We will talk about that. Thank you for your comments.

Ms. Heiser.

STATEMENT OF KAREN HEISER

Ms. HEISER. Chairman Porter, Ranking Member Davis, on behalf

of the nearly 200,000 managers and supervisors in the Federal

Government whose interests are represented by the Federal Managers Association, allow me to thank you for the opportunity to

present our perspective on the need for reforms in the employee appeals process.

We are pleased to comment on the draft legislation to establish

a commission to review jurisdictional and procedural issues and

make recommendations to Congress for improvement. The established systems for employees to address grievances against a manager or agency are inconsistent in their ability to respond to a complaint in a timely manner and to weed out frivolous claims. Employees have a broad range of avenues available to them. They can

present appeals to multiple independent organizations and even

send letters to the congressional representatives. We support the

mission of all these agencies and respect them as independent bodies, established to help maintain the integrity of the Federal work

force.

However, at the hearing before this subcommittee on November

9, 2005, it became clear there was a disparity in the efficiency and

effectiveness of these agencies. The point was made that managers

and supervisors must weigh as equal burdens the choice to make

the right decision and the likelihood of going through the process

of appeals and potential retaliation. As was pointed out in the testimony of the Senior Executives Association, employees can file

claims without merit and maneuver through the appeals processes

for years. In the meantime, managers are passed over for careeradvancing opportunities in the face of mostly un-meritorious

claims.

More importantly, this same resolution limbo allows claims of

merit to linger for years as an employee works with a boss who has

taken unwarranted action against them. In either scenario, entire

work groups suffer in this dysfunctional work environment.

Under the current EEOC process, an employee can file a claim

with little or no substantiation. Then, due to the enormous volume

of cases, EEOC often puts pressure on settlement to avoid adding

to the backlog. According to its 2005 annual report, the EEOC

seems to be moving in the right direction to improve the timeliness

of investigations, hearing receipts and merit decisions. We commend the commission for their efforts to improve the process, address the backlog and reduce the overall time line for responses.

However, much still needs to be done. Of the 22,974 cases closed

in 2005, only 345 were found to have discrimination involved, as

per the EEOC annual report. That means 1.5 percent of the cases

were found to be meritorious in their claims of wrongful action,

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which is slightly more than the 1.3 percent of cases in 2004 that

were found to have the same statistics.

The other independent agencies do not seem to have the same

backlog or process problems, but remain in need of review. The

Merit Systems Protection Board is closer to the mark in their timeliness of processing claims and percentage of decisions rendered.

On average, the board renders decisions within 100 days of filing

and supports the actions of managers and supervisors 80 percent

of the time. In practice, however, MSPB encourages settlement

over full processing of the claim, which somewhat invalidates these

results.

It is clear to us that the entire appeals process offers too many

options to employees looking to file frivolous claims against managers trying to address poor conduct, under-performance or other

problems. The EEOC process must be streamlined and more stringent standards must be placed on claims filed by employees. We

also believe that managers’ rights need to be taken into consideration due to the excessive number of frivolous claims determined

each year by EEOC decisions.

The legislation proposed by you, Chairman Porter, to establish a

commission to review the Federal employee appeals process presents a thoughtful and deliberate balance in the effort to address

these issues by first identifying the current state. This will allow

agency employee representatives to sit down in an open dialog and

discuss reform proposals in the light of a thorough assessment of

all the Federal employee appeals outlets and their missions. The

proposal of a commission to study these issues takes us a step forward in addressing the failures of the Federal employee appeals

process and opens the door to understanding proper solutions to

remedy the problem.

For too long, managers, supervisors and employees have suffered

at the hands of lengthy processes and broken systems, disconnected

options and eventually unsatisfactory decisions. For the manager

working with an employee who is a frequent filer or an employee

working with a discriminatory supervisor, resolution must come at

a quicker pace.

We support the efforts of Chairman Porter and believe this legislation would take us closer to fixing the broken system that currently exists in the Federal employee appeals process, and we are

honored to be included in this hearing and the proposed legislation.

If I could offer a couple of comments that are not in my written

statement, but in response to issues that came up during the first

panel, there was discussion over commission membership, independent observers or independent oversight authority and the

question was put to the last panelist whether they felt they could

solve this problem. I would put to you two thoughts for consideration regarding any type of independence. The involvement of organizations like the Center for Excellence, etc., as resources is certainly valuable. As far as any type of independent oversight, we

feel GAO would be the most appropriate body.

However, in following Mr. Bloch’s thoughts, my home base has

been engaging in a very aggressive continuous improvement campaign the last few years involving this same type of thing where

we have disconnected bodies of people who contribute to a problem.

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And I would put to you that this process has to be facilitated by

someone from outside the Government who is an expert—top-notch

at resolving these problems. The idea of charting isn’t necessarily

Power Point presentations, it is called value stream mapping, so

that each organization has a golden opportunity here to improve

what they are responsible for, and together perhaps improve the

entire process of resolving employee disputes and issues.

There is a lot of good material out there, it is organizational

quality improvement stuff, and I think it is right on point with

your efforts. Congressman Davis, you had asked if anyone was not

represented. I have some food for thought on that. Due to no lack

of effort on the part of my fellow panelists, Mr. Gage and Ms.

Kelley and their peers in the labor community, there are a lot of

unrepresented, non-bargaining unit Federal employees that don’t

have an outlet in this voice.

And I don’t like to offer problems without suggested solutions.

The best one I could come up with right now is perhaps a detailed

posting by OPM for 1-year assignments to this commission for your

thoughts.

Thank you very much. I am happy to answer any questions you

have.

[The prepared statement of Ms. Heiser follows:]

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Mr. PORTER. Thank you very much.

You mentioned 22,000 cases and 300 and some. This is really a

question for everyone on the panel today. Of the 22,000, a figure

for the comment, how many of those are filed where they actually

know that they are not a legitimate complaint, would you guess?

Mr. GAGE. I am really glad you asked that, because I hear this

frivolous complaint issue. Here is what this is about. And a lot of

it is right up front, due to timeframes. Someone will come into the

union office, had my leave denied. OK. We have 2 more days, you

have 15 days to file union grievance, maybe this happened 2 weeks

ago. But I think they didn’t do it because I don’t think they like

me because I am a woman or I am a Black person or whatever.

So now, we have a discrimination complaint. Or we have an allegation. Perhaps the union steward will put that into a counselor—

that is the first step—the 45 day counselor. Now, after the counselor’s report, it could be that this is not an EEO case. This should

have been handled under the contract and under the grievance procedure, but you can’t get back to the grievance procedure, because

the timeframe is gone.

Mr. PORTER. Yes, we have finished that 45 days.

Mr. GAGE. Yes. And I think a lot of these cases that are termed

frivolous are not EEO cases, but they are legitimate cases that

should be handled.

Mr. PORTER. Going on the wrong path.

Mr. GAGE. It is going on the wrong path. Now, we have negotiated some things where we would apply the grievance timeframe

after the 45 day of the counselor. So I don’t think it is in anybody’s

interest that you have a case in the wrong forum. Management has

to go and investigate the thing and do all that, when right up front,

that matter can be taken care of, if there was some time for a little

investigation just to make sure the person was in the right forum.

And I will bet you that is half of your frivolous cases.

Mr. PORTER. John, let me go back to that a second. So somebody

walks in with a problem. Explain to me how it is assigned.

Mr. GAGE. Well, the steward has to advise the person of their

rights. You have 15 days to file a grievance, 2 days if it is a leave

issue. But then the person might say something that sounds discriminatory. Now, the steward then is really caught between a rock

and a hard place about giving the person proper rights. And many

times, they will throw the thing, saying, go to a counselor, or see

if it is EEO, I can’t tell right now, but all I do know is I have 1

day to decide.

Mr. PORTER. So they may err on the side of safety to put it into

the system?

Mr. GAGE. Exactly. And I think a lot of employees do that, too.

Ms. HEISER. I think that brings up a huge problem, or a huge,

I shouldn’t say problem, but an issue with any resolution of issues

like this, is that there is really no baseline data. This EEO report,

which happens to be the only one I have, is filled with huge numbers. And huge numbers lead to huge questions. I don’t know that

there is any baseline data as to exactly where all these cases do

come from and if there are any common threads in them. I think

that would have to be done as any type of an improvement process

these folks engage in.

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Ms. KELLEY. I would also suggest, Mr. Chairman, that you really

have to look behind each case to see what drove the conclusion.

Many of them are settled. There is a lot of push to settle. And

there is an interest in both parties, everyone involved, to bring it

to a conclusion. I can tell you from the issues that NTEU deals

with in this forum that our goal is to get this resolved sooner rather than later for everyone involved, so that it is not just hanging

out there.

I don’t think there is really a solid way to measure what is frivolous. There are easy allegations to make, but I have never seen

data that first defines what that means, what it means to an individual, and then second, what the criteria are that could even be

measured against, rather than just kind of a general framing that

really sets a bad tone and implies that those who come to the system for help are doing a bad thing. It should be an avenue of appeal for them to feel safe and not to be charged with being frivolous

because they have questions they can’t get answered, and this is

an available forum.

Mr. BRANSFORD. Mr. Chairman, if you look at the EEOC statistics, 23,000 cases, a little over 20 percent are settled, 345 cases had

findings of discrimination, my calculation is about 17,000 cases

that were not settled, that were not findings of discrimination.

Now, a good percentage of those I think are frivolous, and I think

Mr. Gage makes an excellent point when he says that people file

EEO complaints because they are unhappy with something that

happens at work, even when they have no evidence whatsoever of

discrimination.

And I think that gives rise to the need for an effective grievance

procedure, an effective complaint procedure. I think because of the

complexity of the time limits and the going back and forth, sometimes you can, sometimes you can’t, it is very legalistic, I think

that is one of the reasons why the Senior Executives Association

put forth the idea of going to one place with one time limit, you

bring an employee issue there and you bring your points in and

then somebody takes a look at it early on and makes a decision

whether there is merit to go forward with it, or whether there is

no merit, whether you don’t set forth a claim. I think you could get

a handle early on on some of these frivolous cases and get them

out of the system before they clog it up.

Mr. PORTER. It does seem to me the term frivolous, we have to

be careful with that. Because many times, it sounds like it is just

the direction or the decision on which course to take may have sent

it on the wrong path. That doesn’t make it frivolous. And I understand that first party is going to be as cautious as possible and try

to make sure they do have all the checks and balances.

And again, I appreciate this being very informal, I think everyone here wants the same thing, we want to help the employee.

Without creating another organization, if I were to put together a

suggestion as the Congresswoman mentioned, but that suggestion

would be that there be a screening panel made up of stakeholders

that would help with that first step. Not creating another whole organization or another whole layer of Government, but a coordinated effort between the different agencies of a clearing panel. I

can give an example—maybe I am oversimplifying it—but in NeVerDate 11-MAY-2000 11:49 May 01, 2007 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6633 C:\DOCS\34234.TXT HGOVREF1 PsN: HGOVREF1
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vada, we are not sure if we still do, but we had a screening panel

for lawsuits for medical liability claims where there was a panel

made up of doctors and lawyers and stakeholders that would look

at lawsuits before they could go forward to have proper findings.

But it seems to me that if we could help with a clearinghouse

for the first step, that would really help the process, just have a

screening panel that would help decide which avenue to take. What

do you think about that?

Mr. GAGE. I think it is in everyone’s interest to get in the right

forum, first of all.

Mr. PORTER. Yes, because that has to save a lot of time.

Mr. GAGE. It absolutely would. And I really feel just from practical experience, when our union tries to prosecute EEO cases that

really are good grievances, they are not EEO. And that has to be

up front. And there has to be a process up front to be able to really

get the employee, first of al, in the right direction. Regarding

screening processes, I would like to hear more what you think.

Mr. PORTER. I am thinking out loud, and I would like to spend

a little more time on this, but I am just looking for other ideas.

Thank you.

Mr. Davis.

Mr. DAVIS. The idea of a screening panel is kind of interesting.

Of course, a question would be, how do you arrive at decisions? I

mean, if you are seeking consensus, I think that is one process. If

you are going to be willing to end up with a partisan kind of voting

process, that is another process. I just don’t know how well that

works when where you stand often determines the outcome.

Or another way to put it is where you sit I find in life often determines where you stand. Some people will see this glass as half

filled and somebody else will look at as half empty. And trying to

get consensus becomes very difficult. Although I think it would be

great if we could actually work toward that.

My question is, though, Mr. Bransford, you support, that is the

Senior Executive Association sees some merit in the concept of a

Federal appeals process, right? And with some tweaking and some

additions or subtractions or deletions that you could see it having

some merit.

Mr. BRANSFORD. Congressman Davis, that is our proposal to

solve the problem. First and foremost, we think there is a problem

and we think that the commission as proposed and some of the

ideas discussed here today, if they could be added to the legislation

to get the input of other groups, to issue a report to solve this problem, I feel that a consensus could be reached, and I think a consensus should be reached. I don’t see or envision an idea of minority

reports or dissenting opinions or anything like that.

So I would hope that these stakeholders, people of good faith and

a lot of knowledge and experience with the system, could come together and make recommendations for effective reform.

Mr. DAVIS. Ms. Kelley, if I understand your position, you are not

as optimistic about that.

Ms. KELLEY. That is true. I am not. I have been a member of a

panel like this before, where the hope and intent was consensus.

It ended up exactly, Congressman Davis, as you described, as rather a partisan report with dissenting views. And that was in large

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part, in my view, based on how the group was made up from the

very beginning, which I know is a point of interest to you as to

what the makeup should be, and the fact is, as it is proposed, even

though NTEU is very clear that we are opposed to the commission,

we don’t think it is even necessary.

But if there were to be anything, the idea that two seats of eight,

I believe, would be union representatives surely is important to

have our voice there in the conversation. I would rather be in the

conversation than on the outside, sending in messages or notes.

However, if the die is cast because of the makeup of the group,

then that casts a question about the hope and the intent of putting

the group together in the first place. So I do have concerns.

Mr. DAVIS. And Mr. Gage, you are even less optimistic, if I read

you correctly.

Mr. GAGE. I am always more optimistic than Colleen. [Laughter.]

But I agree with her right down on the line on this. We have

been in this movie before, when we tried to really solve a problem

and it comes down to employees losing rights, rather than a protection of their rights. We have seen that in a couple of other forums

in this town.

Ms. DAVIS. Ms. Heiser, your organization does see merit.

Ms. HEISER. We think the problem is not clearly enough defined

to set a target to find a solution. We think that the problems need

to be explored a little more thoroughly. There are very different approaches that MSPB and EEO see. And we certainly did not use

the term frivolous lightly. We think that, for instance, the EEO

process is less structured and that it is easier for an employee to

file something, and the promise of settlement is there for every single process. We think that facet of EEOC hurts legitimate claims.

So we think that the problem really needs to be defined more before aiming for a solution.

Mr. DAVIS. The interesting thing that I find is that we all represent employees. All of you represent employees. Yet you see this

somewhat differently. I wonder if anybody would be interested or

willing to venture to speak to why you might see it differently. Although the bottom line is that all of you represent employee

groups, but different groups of employees, I guess, have different

experiences. And based upon their experiences, sort of see things

differently. And therein lies also a problem of not being able to just

say, this is a labor management, Black or White kind of issue. But

there are other factors involved in the process of determining the

outcome.

If there were more representation from stakeholders in the proposal, Mr. Gage, Ms. Kelley, would either of you see yourself moving closer to support of the proposition?

Ms. KELLEY. I think it would depend on a lot of other things,

about how the commission was framed, what the mission statement or whatever the charter was, what the decisionmaking process would be. If there were to be facilitation, if that would be to

truly move toward a new solution rather than everyone defending

turf or just assuming that the process is not just to streamline the

process, but to streamline employee rights. And I don’t hear the

subcommittee saying that.

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The interest in maintaining rights has been stated over and over.

But that is not what I hear from everyone who would be involved

in this. And if that was the goal, if it was stated up front, employee

rights will not be decreased, and the goal is to figure out how to

have a better process, a streamlined process that does not decrease

employee rights, that is a different conversation than a lot of what

I am hearing from some involved in this process.

Mr. DAVIS. Would any of you be willing to just give your rights

away to an independent commission, say, we put our faith in the

old independent commission, and whatever you arrive at, we think

you are going to be fair, we think you are going to be just, and we

are going to get our just view and go on about our business?

Mr. GAGE. No, I don’t think that would happen. It is just of—

I don’t know, it is tough for the unions to step out there and some

would distrust us at this point in time. So I think that we would

really have to have this guarantee that this would not be a forfeiture of employee rights and it is to truly to streamline a system and

making justice a key word.

Mr. BRANSFORD. I think, Congressman Davis, first and foremost,

that SEA’s proposal is to protect employee rights and not diminish

them. We were on the forefront of protecting the Merit Systems

Protection Board appeal rights when those were challenged in the

initial proposals for reform at the Department of Homeland Security and the National Security Personnel System. And there was,

some of those initial proposals would have been a far greater diminishing of employee rights than ultimately occurred. We believe

that is a very, very important part of this process.

But I think there are a lot of things. And one of the first things

to do is to take the EEO system out of the agencies. This is something that was, I think Ms. Dominguez, Chair Dominguez was getting at, and Chairman Porter’s idea of a screening panel. These are

all things this commission can discuss. How do we get the EEO

system out of the agencies so that there is no conflict of interest,

so that the people are comfortable getting rid of these cases where

employees complain, raise an EEO complaint because their supervisor did not say hello to them that morning. Those kinds of complaints are filed and they are investigated and they do clog up the

system.

Ms. KELLEY. But I would also say that taking the investigation

process out of the EEOC can be done without forming a new commission to look at how processes can be streamlined. I mean, if everyone agrees that is an issue that needs to be looked at, I think

we have heard from a lot of different parties that is an ongoing

issue for employees at every level of the organization, then that can

be addressed. We don’t need a commission to do that. Let’s just

focus on that, acknowledge it is a problem.

My concern over the idea of an independent group coming up

with something that we just all accept is that I know there are a

lot of, and a lot of them have been mentioned, very highly qualified

independent groups who I think would be very valuable participants in the commission, if it were formed, even though NTEU is

opposed to it being formed.

But I have to tell you, when I hear the references that I hear

to why this process needs streamlined, it is that only some small

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percentage of EEO cases are ever found to be valid and 17,000 of

them are frivolous and that the MSPB rolls 80 percent of the time

in favor of management are not compelling issues to me, that give

me any comfort that if those are the kinds of facts or the foundation that anybody is going to be looking at as a criteria for the future, that does not bode well for front line employees who are depending on a fair and credible process.

And you will not find those kinds of decisions and numbers in

negotiated grievance and arbitration processes that we pursue for

the majority of issues that employees face in the workplace today.

Because it a much more, it is a fair, open process, it is not about

a lot of things we have heard described here today. So that would

be my concern over just saying yes to anyone.

Mr. DAVIS. Thank you all very much, and Mr. Chairman, I want

to thank you. I know that Solomon has been looking for a running

buddy for a long time. [Laughter.]

Mr. PORTER. One last question, and you don’t need to elaborate.

And I hate to admit it, but I am going back to what John said, I

don’t want to give John too much credit, but I will for the moment.

How many of these 97 percent or whatever are really just misdirected from the beginning to the system?

Mr. GAGE. I did one look at one particular local, and it was over

half.

Mr. PORTER. I wouldn’t doubt it. At a minimum probably half.

I am going to leave you with one thought. If there was a panel

that provided guidance, not a mandate, but just a recommendation

on the steps to follow, and certainly leave it to the employee to

make the final decision, but if I were an employee and I had a

problem, I would just like to know where to go for help. And I

would like to know that I am going the right pathway. I would like

to know that I am not wasting my time or anybody else’s. I think

most folks would want that option.

They may disagree with that guidance, and if we allowed the option to continue down the path, I still think we would free up a lot

of time and help the employee in a much more rapid response and

proper direction. I am going to be looking at different options, because again, I think everyone is looking for the same thing. But I

wouldn’t want to take away any of the employee’s rights. I would

actually like to enhance the tools they have available to them, so

they can get it resolved quicker.

So with that, let me say thank you all very much for your testimony. We appreciate your all being here, and the meeting is adjourned. Thank you very much.

[Whereupon, at 5:05 p.m., the subcommittee was adjourned.]

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