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JUSTICE DELAYED IS JUSTICE DENIED: A CASE

FOR A FEDERAL EMPLOYEES APPEALS COURT

HEARING

BEFORE THE

SUBCOMMITTEE ON THE FEDERAL WORKFORCE

AND AGENCY ORGANIZATION

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 9, 2005

Serial No. 109–115

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

——— ———

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)

MELISSA WOJCIAK, Staff Director

DAVID MARIN, Deputy Staff Director/Communications Director

ROB BORDEN, Parliamentarian

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

——— ———

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

CHRIS BARKLEY, Professional Staff Member

CHAD CHRISTOFFERSON, Legislative Assistant/Clerk

MARK STEPHENSON, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on November 9, 2005 ........................................................................ 1

Statement of:

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

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

Dale Cabaniss, chairman, U.S. Federal Labor Relations Authority; and

Cari M. Dominguez, Chair, U.S. Equal Employment Opportunity Commission ........................................................................................................... 13

Bransford, William L. ............................................................................... 13

Cabaniss, Dale ........................................................................................... 30

Dominguez, Cari M. .................................................................................. 37

McPhie, Neil A.G. ...................................................................................... 23

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

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

prepared statement of ................................................................................... 16

Cabaniss, Dale, chairman, U.S. Federal Labor Relations Authority, prepared statement of ........................................................................................ 33

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 76

Davis, Hon. Danny K., a Representative in Congress from the State

of Illinois:

Prepared statement of ............................................................................... 8

Prepared statements of Ms. Kelley and Mr. Gage .................................. 45

Dominguez, Cari M., Chair, U.S. Equal Employment Opportunity Commission, prepared statement of .................................................................... 39

McPhie, Neil A.G., chairman, U.S. Merit Systems Protection Board, prepared statement of ........................................................................................ 25

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

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

(1)

JUSTICE DELAYED IS JUSTICE DENIED: A

CASE FOR A FEDERAL EMPLOYEES APPEALS COURT

WEDNESDAY, NOVEMBER 9, 2005

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FEDERAL WORKFORCE AND AGENCY

ORGANIZATION,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:10 a.m., in room

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

Present: Representatives Porter, Davis of Illinois, Norton, and

Cummings.

Staff present: Ronald Martinson, staff director; Chad Bungard,

deputy staff director; Patrick Jennings, OPM detailee; Chad

Christofferson, legislative assistant/clerk; Mark Stephenson, minority professional staff Member; and Teresa Coufal, minority assistant clerk.

Mr. PORTER. Good morning, everyone. I would like to bring the

meeting to order.

We do have a quorum present. We would like to welcome you all

to ‘‘Justice Delayed is Justice Denied: A Case for a Federal Employees Appeals Court.’’ I would like to thank everyone for being here

today, and I know that it took some change in schedule, so for

those that had those challenges, I appreciate especially your ability

to be here today.

Since the founding of this Nation, the bedrock principle of judicial philosophy has been ‘‘equal justice under the law.’’ We hold

this principle so dear that we have carved it into stone in front of

the Supreme Court. This principle should be no less true of the

Federal employee redress system as in our courts.

But does the government deliver this result through its employee

appeals system? At present, jurisdiction for handling Federal employee appeals is spread amongst the Merit Systems Protection

Board, the Equal Employment Opportunity Commission, the Federal Labor Relations Authority, the U.S. Federal Courts and the

Office of Special Counsel. Critics have argued that spreading appeals through so many agencies has inhibited the process from

being as fair as it could be. Although each agency head here today

deserves credit for implementing key reforms to improve their respective agencies, the very structure of the system may present

challenges too great to overcome without some fundamental reform.

2

Proposal for reform are what we are here to discuss. Today,

among others, we are going to be discussing a proposal to consolidate all employee appeal and adjudication functions under one roof,

a one-stop shop for the appeals matters. Advocates of this proposal

claim that consolidating all these agencies would decrease confusion for the employees, managers and agencies; increase the efficiency of the process; and most important, deliver a more fair result for all parties that are involved.

Efficiency and fairness, though, are not always the words I hear

when the current appeals system is explained. Back in 1978 the

GAO had this to say about the day-to-day functioning of an average

Federal workplace: ‘‘Supervisors and managers instead tend to use

an informal [disciplinary] system of working around, isolating, reassigning, sending to long-term training, or even promoting unsatisfactory employees.’’

Interestingly, GAO made this comment in the same year that our

current appeals system was created. It was believed at the time

that splintering all the adjudicatory agencies apart would resolve

the problems with the appeals system. Unfortunately, it seems as

if little has changed. Federal offices are hearing the same complaints today as we heard back then. In 1996, for example, GAO

again testified regarding the problems of the Federal employee redress system, and stated: ‘‘Because of the complexity of the system

and the variety of redress mechanisms it affords Federal employees, it is inefficient, expensive and time-consuming.’’

The latest Human Capital Survey conducted by OPM reflected

this sentiment yet again, revealing that employees are still frustrated by a system that doesn’t deal justly with poor managers and

poor employees. Under today’s system, it is a challenge to determine which agency has jurisdiction over cases that involve a mix

of discrimination, mismanagement or retaliation claims. So many

cases fall under two or more venues that the time it takes to receive a decision is slowed to an unacceptable pace for all parties.

If we are unable to obtain timely decisions for truly aggrieved employees, then justice delayed is justice denied.

Likewise, jurisdictional confusion opens the door for a problem

known as ‘‘venue shopping.’’ Under this scenario an employee with

a complaint against his or her manager is permitted to ‘‘shop

around’’ and file a complaint with multiple agencies. Feasibly, this

person can simultaneously pursue a complaint against a manager

at the EEOC, MSPB and Federal District Court. While the person

in this example wouldn’t be held accountable if the claim is frivolous, to the accused it can be a devastating experience. Because the

system permits this kind of behavior, according to an American Bar

Association publication, Federal employees are reportedly five

times likelier than their private sector counterparts to issue a complaint against a manager.

The sad reality is that the existence of more claims does not

mean that we are better at uncovering discrimination and abuse.

To the contrary, the EEOC recently reported that of the 4,748

claims made by Federal employees in 2004 that were fully adjudicated by EEOC, 96 percent were found to lack merit. Let me repeat that statistic: not 10, 20, or even 50 percent, but 96 percent

of cases fully adjudicated by the EEOC—at a heavy cost to taxVerDate 11-MAY-2000 09:36 Mar 21, 2006 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 D:\DOCS\25705.TXT HGOVREF1 PsN: HGOVREF1
3

payers, and a heavy cost to the employees that need the help of the

system. This demonstrates serious problems and a staggering need

for reform. Today’s hearing will address this and a host of other reform ideas.

In the end, it is essential that whatever system is in place, we

ensure that it is fair for all people involved, employees and managers, and it is efficient in its use of our taxpayer dollars. I look

forward to hearing first from our Senior Executive Association regarding its specific proposal for reforming this system. I also look

forward to hearing from the other agencies that are here this

morning and would be impacted by such a reform.

But before I invite our witnesses to testify, let me underscore

that this hearing, first of all, is a look at the issue. We are not expecting today to come up with a final answer, but I do expect to

come up with a final answer in the not-too-distant future.

I hope that everyone can take away from this hearing a point

upon which we can all agree, and that is, for the sake of the employees, for the sake of the managers, for the sake of the agencies

and the taxpayers, we can and must find a better way to deal with

how we handle this issue. I welcome all the ideas from the panel

here today, from my colleagues, from the member agencies, employee organizations, and other interested groups, to work together

in a common partnership toward that good. We are privileged to

have some of the most knowledgeable individuals in the field to be

with us today.

The bottom line is there are folks that have been discriminated

against. There are folks that have problems with managers, very

legitimate problems. There are employees that have problems with

other employees. There are people that are having problems that

are not gaining access to the system because it is tied up in our

own bureaucracy. And as I tried to state earlier in my comments,

I applaud the folks that are here today, for trying to do what you

can with a system that we have given you to work with.

But I would like for us to think out of the box. What can we do

to help that employee or that individual that needs help the most,

and to find a system that eliminates, as much as possible, frivolous

lawsuits so that there can be justice for everyone involved.

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

4

5

6

Mr. PORTER. I would like to do some procedural matters, and I

ask at this time that we have unanimous consent that all Members

have 5 legislative days to submit written statements and questions

for the record, that answers to written questions provided by the

witnesses, also be included in the record.

Without objection, it is so ordered.

I ask unanimous consent that all exhibits, documents and other

materials referred to by Members and the witnesses may be included in the hearing record, and all remarks by the Members be

permitted to be revised and to extend them.

Without objection, it is so ordered.

And it is also the practice of the subcommittee to administer the

oath to all witnesses, so if you could please all stand, I would like

to administer the oath.

[Witnesses sworn.]

Mr. PORTER. Let the record reflect that the witnesses have answered in the affirmative. Please be seated.

My able-bodied counsel is asking me to share with you that you

are lucky today because I am losing my voice. [Laughter.]

So today is a good day to be here. I promise not to give you too

hard of a time, but again, we appreciate you being here. I would

like to turn to my colleague, Mr. Davis, for any opening comments.

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

and I don’t think that with the kind of weather that you have out

in Nevada that you will ever lose your voice. You just kind of slow

it down when you get here.

But thank you very much, Mr. Chairman.

Today’s hearing is on proposals to streamline procedures for

hearing Federal employees’ allegations relating to personnel practices. The Senior Executive Association has presented the most detailed of such proposals. They propose creating a Federal employee

appeals court, which would combine most adjudicatory functions

currently preformed 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 this proposal, the decisions of this court would be final

and not subject to appeal, except in the case of employment discrimination. It strikes me from a review of the testimony that this

proposal is driven in large part by dissatisfaction with the length

of time the current equal employment opportunity process takes.

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

Merit Systems Protection Board, or the Federal Labor Relations

Authority, with the exception of so-called ‘‘mixed cases’’ which involve both the MSPB and the EEOC. If that is indeed the case, it

may be that a better approach would be to focus more narrowly on

the current process for resolving discrimination complaints in the

Federal workplace.

While I always keep an open mind on suggestions for improving

the operations of the Federal Government, I must say that the proposal from the Senior Executives Association raises some serious

questions in my mind. We must tread very carefully in this to ensure that due process rights of Federal employees are not diminished in what is being presented as an administrative reorganizaVerDate 11-MAY-2000 09:36 Mar 21, 2006 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 D:\DOCS\25705.TXT HGOVREF1 PsN: HGOVREF1
7

tion. To that end I am disappointed a bit that representatives of

Federal employee unions were not permitted to testify today. The

National Treasury Employees Union and the American Federation

of Government Employees have submitted written testimony,

which I ask be made a part of the record for this hearing.

It is also my understanding that employee representatives will

be permitted to testify in person at any future hearings we may

have on this subject.

Of course, as always, I look forward to this group of expert witnesses. And, again, thank you, Mr. Chairman, for giving us the opportunity to review this matter.

[The prepared statement of Hon. Danny K. Davis follows:]

8

9

Mr. PORTER. Thank you, Mr. Davis.

Congresswoman, any opening comments?

Ms. NORTON. Thank you very much, Mr. Chairman, and I thank

you for tackling this issue. I think everybody ought to be forewarned that this is probably the most complicated issue in the Federal service, and I know because I was there at the birth. This I

disclose as a matter of disclosure, because I was Chair of the Equal

Employment Opportunity Commission when both reorganizations

occurred, reorganization No. 1 and reorganization No. 2. That is

what this one was.

Reorganization No. 1, I am still very proud of. It was the transfer

of the civil rights functions in the Labor Department to the EEOC,

that is to say, the EPA and the Age Discrimination and Employment Agent Act, as well as, of course, certain of the Civil Service

Commission functions.

Reorganization Plan No. 2 created the—what do we call it—the

FLRA and the OPM, etc. Recognizing that four new agencies were

being set up, the President’s Reorganization Plan No. 1 called for

the EEOC to be the chief coordinator. I must say that we played

that role when I was at the EEOC. It completely atrophied after

I left EEOC. I see no evidence that EEOC has played a coordinating role involving all of the agencies involved, even though it has

reached out in many ways. It would have taken very aggressive action because the coordination would have meant you would coordinate among other agencies, the Justice Department, every agency

that had anything to do with civil rights matters.

We are more than 25 years later. Everybody is frustrated with

the accumulated experience. I should stress that when you are

dealing with four agencies and they have overlapping jurisdiction,

and it is the first time that these agencies in fact are operational,

there was an attempt in 1978 to make sure that everybody’s jurisdiction remained intact. Actually, I am surprised that, with more

than 25 years later, in looking at this again, because I believe that

the experience does inform us of—and long ago informed us of

where some changes might have been made.

I am going to listen very intently, because I believe in government, I believe in the EEOC and the civil rights functions, and

therefore, I believe that those who believe in them ought to be at

the front of the line seeking to make changes. But I think that

there ought to be a fair warning to those who want change, structural change, because this is the committee that created Department of Homeland Security. I still support that idea. I do not support the way the product has in fact operated. It is still trying to

get itself to look like a Federal agency. I am a major cosponsor of

a bill to take FEMA out of the Department of Homeland Security.

I think it needs to be nimble, to not have its funds, for example,

subject to being stolen in the name of security when you get hurricanes every year, and hopefully you don’t get terrorist threats, anything like that.

We have seen, with the structural reform that we have already

done, the virtual destruction of collective bargaining, according to

a Federal court which heard the matter. We have seen other court

suits now going forward as we deal with what we did in DOD and

DHS with pay.

10

So I am not sure about you, Mr. Chairman, but if there is to be

an appetite for structural reform, it seems to me that the presumption has to be overcome that we are ready and we have such a good

proposal here tested and at least proven that we should move

ahead on it.

But I think that we ought to remember that September 11th led

to the changes that we have made, and frankly, I believe the September 11th deserve a better response than the monster we created

in Department of Homeland Security. Again, I still support the

idea. I do not support what has been made of the idea, which

means that coming to a committee with an idea ought to, if anything, arouse skepticism if there is no indication that the idea

would work or would work better than what is there, and that is

what it seems to me is the burden of those who want to change.

The need for change, interestingly, is agreed across the board,

and that is not always the case when it comes to the various

groups that would be involved in a matter like this. What moves

me always is the word ‘‘streamline,’’ because, see, those are magic

words to me. I think that people get to hate government when it

gets to be complicated. For myself, I will be remembered, if at all,

not about substantive things I am proud of at the EEOC like the

sexual harassment guidelines, or the affirmative action guidelines,

but for eliminating the EEOC’s backlog by introducing streamlined

processes that focused on early settlement of individual cases at a

time when ADR was not even a word. So I come prepared to hear

about something that would streamline a process.

But, Mr. Chairman, we have just participated in creating a super

agency that has yet to show it can work, and the question I think

for us is we want to create a super court. Maybe so, but the burden

is on those who want to do it. I will want to know, is the problem

in the appeals? Is that where we have to start? That is interesting.

Often you have to start earlier than that to get a problem. Is the

problem venue shopping? I couldn’t be more in your corner. I can’t

go into court here in the District of Columbia and the Federal

Court at the same time. That is a problem. But what does that

have to do with appeals? That has to do with, forum shopping has

to do with where you file in the first place.

So I am a little confused about focusing on appeals, except that

this notion of mixed cases comes into play. I don’t even want to go

into what mixed cases is. The witnesses will testify, but a very few

cases have overlap between EEOC and others. If you want to

change the system because of those cases, then we need to understand if it is worth creating a whole super agency because of those

cases, whether we ought to concentrate on those cases or whether

we want to ask ourselves even deeper, more radical questions.

What is the source of the problem? Is the source of the problem

when the case gets to appeal? Fine. Then you are telling me that

the cases are fine as they start. I am glad to hear that because I

was not aware of that.

Very complicated issue. I think the way to go about it is the way

the chairman is going about it, analytically. But I must say, Mr.

Chairman, that unlike other matters before us, in order to get a

hold of this issue, if you really want to deal with the super court

notion, it does seem to me that you ought to prepare yourself—and

11

I am sure you have, Mr. Chairman—for what amounts to a mental

exercise. I mean if you want to exercise it, you know, to exercise

your mind is like doing a crossword puzzle, first try to understand

this and then try to understand what the proponents want to do.

Then perhaps we can make a decision on whether this is the right

way to go or whether there are alternatives.

And I appreciate, Mr. Chairman, that you have looked at this

problem. It is not a huge problem, but for Federal workers who

spend a lot of time in the system, they deserve a lot better.

Thank you very much.

Mr. PORTER. Congresswoman, we are glad you are a part of this

committee because we are going to need your help on this issue

very, very much.

Mr. Cummings, any opening?

Mr. CUMMINGS. Yes, just very briefly, Mr. Chairman. I want to

thank you for holding this critically important hearing to evaluate

the restructuring proposal for the Federal employee appeals process.

For over two decades, Mr. Chairman, five distinct agencies have

admirably worked to ensure that Federal employees have an appropriate forum to resolve their claims of unfair or unlawful treatment

that occurs in the workplace.

As it now stands, agency involvement of the Federal employee

appeals system includes: the Merit Systems Protection Board,

which hears individual appeals regarding agency adverse actions;

the Office of Personnel Management, OPM, which is charged with

administering the Federal personnel system; the Office of Special

Counsel, OSC, which investigates and prosecutes specialized cases

with a focus on protecting whistleblower; the Equal Employment

Opportunity Commission [EEOC], enforces the right of equal employment opportunity by hearing cases concerning discrimination;

and finally, the Federal Labor Relations Authority, which adjudicates disagreements between agencies and unions.

Today’s hearing presents us with the opportunity to discuss a

proposal by the Senior Executives Association to streamline the

Federal employee appeals system with the creation of a Federal

Employee Appeals Court. Specifically the proposal calls for a single

forum that would merge the appeals functions currently adjudicated by MSPB, OPM, OSC, EEOC and FLRA, into what would

be considered a super agency. As the testimony of William

Bransford articulates, the purpose of this new entity is to provide

a simple and expeditious mechanism resulting in protection of the

merit system by resolving employee concerns with relative speed,

impartiality and in fairness, while preserving all employee appeals

rights.

In principle, I am sure that we can all agree that we best honor

our public servants by having a Federal employee appeals system

that provides a just, timely and thorough resolution of employee

grievances. Further, I am sure that we can all agree that the current appeals system is not perfect, and could benefit from some efforts to improve its effectiveness and efficiency.

I am expressly troubled by the lack of timeliness in the resolution of some mixed cases where there is a jurisdictional overlap between EEOC and MSPB, and the ability to continuously balance an

12

appeal in such a case for additional review to another adjudicative

forum. However, I am not 100 percent convinced that the SEA proposal for Federal Employee Appeals Court is the best course of action. At this point it seems that the five agencies at the center of

the Federal employee appeals system are able to sufficiently fulfill

their unique missions.

The challenges that confront us seem largely concentrated to the

extraordinary delays and disarray associated with mixed cases.

With that said, the wholesale restructuring of the arbitration system seems unwarranted.

John Gage of the AFL–CIO wisely stated in his testimony that

in particular, there is no need to create a system which deprives

Federal employees of their fundamental civil right to challenge discriminatory employment decisions, while permitting private sector

and other public sector employees to file cases in Federal courts,

State courts and before State administrative agencies as they can

do now. Something seems awfully wrong with that picture.

With that said, EEOC field restructuring plan that is typified by

its calls for reduction of offices and staff, seems particularly unwise. No one wins if EEOC is incapable of enforcing discrimination

laws, and if it is inadequately staffed to decrease backlogs and

delays. Moreover, it seems appropriate that in focusing on specific

challenges before us, that we look within the current system to determine how any perceived or actual inefficiencies associated with

mixed cases can best be addressed.

With that, Mr. Chairman, I yield back and look forward to the

testimony.

Mr. PORTER. Thank you, Mr. Cummings. I would like to respond

just to a couple things. For the employees, I will be meeting with

them, as I had asked, sometime before the end of the year for their

assistance, as we look at the pay-for-performance proposals that

has been before us, and by design my intentions were to have this

discussion—and I appreciate your comment, Mr. Davis, as to why

they are not here—but my goal is to actually have a personal oneon-one meeting to talk about the pay-for-performance proposal and

to talk about some of their challenges in having a proper hearing.

So your point is well taken, and I appreciate you bringing it up so

I can make it clear that is my intention, and look forward to their

input.

I thought today we should hear from the management team and

some of the challenges that they have, but probably more importantly, this hearing is really being driven by the employees that

are very frustrated and are looking for some help and assistance.

So we are looking for ideas. I do not have an intention of creating

a new bureaucracy. I believe that we have systems in place to provide input and proper litigation when necessary. But there may

well be a more efficient approach for the employee, whether it be

a clearinghouse or a one-stop beginning to point them to the right

agency.

So I would hope as our discussions unfold, that I would not send

the message that I am hoping or even intending to create additional bureaucracy or a super court system. But I do think that

with the talent that we have, with the management team and the

employees, we can find a system internally to make it easier for

13

those that have been wronged to find some relief as quickly as possible.

So appreciate my colleagues and your input, and look forward to

future discussion.

So today, as in the past, know that our witnesses have 5 minutes

each for their opening remarks, and after which the members of

the committee will have a chance to ask questions. We only have

one panel today, but I say today I am looking forward to additional

hearings on this issue as we move forward. Today that panel will

be comprised of Mr. William Bransford, general counsel for the

Senior Executives Association; Neil McPhie, chairman of the Merit

Systems Protection Board; Mr. Dale Cabaniss, chairman of the

Federal Labor Relations Authority; and Cari Dominguez, Chair of

the Equal Employment Opportunity Commission. And again, if I

can say, Cari, I know it was a challenge and I appreciate you being

here today.

Mr. Bransford, thank you for appearing before the committee. I

look forward to your testimony. Please proceed.

STATEMENTS OF WILLIAM L. BRANSFORD, GENERAL COUNSEL, SENIOR EXECUTIVES ASSOCIATION; NEIL A.G. McPHIE,

CHAIRMAN, U.S. MERIT SYSTEMS PROTECTION BOARD; DALE

CABANISS, CHAIRMAN, U.S. FEDERAL LABOR RELATIONS AUTHORITY; AND CARI M. DOMINGUEZ, CHAIR, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

STATEMENT OF WILLIAM L. BRANSFORD

Mr. BRANSFORD. Thank you. Good morning, Mr. Chairman, and

members of the subcommittee. I am William Bransford, general

counsel of the Senior Executives Association, the professional association that represents the interests of career senior civil servants.

We appreciate the opportunity to testify about an initiative we believe will correct the broken state of the Federal employee appeals

process and improve Civil Service management. We look forward to

presenting the perspective of the career Federal executive.

SEA proposes that jurisdiction for the appeals and complaints

processes for Federal employees currently investigated and adjudicated by the Merit Systems Protection Board, the Federal Labor

Relations Authority, labor arbitration, the Office of Special Counsel, the Office of Personnel Management, and the Federal sector

EEO system, be moved to and consolidated into one independent

Federal Employee Appeals Court.

The court we propose would be an Article I court similar to the

U.S. Tax Court, and would have complete jurisdiction over Federal

employee workplace issues, with appeals to the Circuit Court of Appeals for the Federal circuit for EEO matters. Our proposal ensures

that all substantive appeal and complaint rights, including jury

trials and compensatory damages for EEO cases would be preserved, and the new court would include investigative and dispute

resolution functions that would employ all Federal employees

whose jobs might be affected by the consolidation.

The current system serves as a barrier to Federal managers effectively managing workplace misconduct and poor performance.

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nate, which can hang over a manager for 3, 4, 5 or even 6 years,

gives pause to even the best manager before deciding to take action

against a problem employee.

Consider the EEOC’s 2004 report, 601 days on average for agencies to issue a merit decision in an EEO complaint when no judge

is involved. Even including cases withdrawn, settled or dismissed,

average process time is 469 days. A case that goes to an EEO administrative judge lengthens these time limits considerably. This

extensive process found only 321 cases of discrimination out of over

23,000 complaints closed last year, a rate of 1.3 percent. Even including cases that settle, nearly 80 percent of EEO complaints still

have no merit. Of course, even one instance of discrimination is too

many. We believe this new court would provide a reinvigorated system that can screen out frivolous complaints early and more effectively deal with discrimination.

One reason the current EEO system is so clogged is that it investigates every complaint, no matter how obviously specious of

unconnected to actual discrimination. This is because the agencies

investigate themselves, so every complaint is thoroughly reviewed

to avoid accusations of conflict of interest. An independent court

could take these same complaints and dismiss those with no merit,

while putting resources into investigating and adjudicating viable

cases. The sheer waste is reason enough to seriously examine reform of the current system.

And that is just EEO complaints. Consider labor arbitration for

employees in bargaining units on adverse actions that can also be

appealed to the Merit Systems Protection Board, and there is the

Office of Special Counsel for Whistleblower Reprisal, and on and

on.

The multitude of possibilities, the complexity of the system, and

the delay, hinder good management. First level supervisors are reluctant to act, and higher level management is unsure about the

level of support to give the front line manger. There is also the risk

of reprisal allegations if a management decision needs to be made

affecting an employee who has filed an EEO complaint. Simpler,

more effective reform will help managers feel more comfortable to

deal with problem employees in good faith, and will also help more

quickly expose poor managers. Equally important, those with legitimate complaints and grievances will see them attended to more expeditiously.

In the meantime, and until this court is operational, Congress

should provide for statutory assurances that make the manager

more a part of the EEO process. We propose that agencies be required to advise management of the filing of a complaint, to provide managers with relevant documents and the right to representation during meetings and investigations, to be consulted before a

case is settled, and to be reconsidered for lost awards, lowered performance ratings and other negative personnel actions that occurred because of an EEO complaint if the EEO complaint is eventually found to be without merit.

As the Merit Systems Protection Board rapidly processes cases

and focuses on the statutory standard of efficiency of the service

and the merit system, we believe its practices and culture would

provide an excellent framework for the new court.

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We hope that today’s hearing will spark a debate about reform

of the Federal employee appeals process, particularly the lengthy

and bulky processing of EEO complaints. Tomorrow’s Federal managers will face increased expectations and accountability as reform

of the Federal Civil Service’s performance management system

takes place. These managers deserve a new appeals system that

adequately protects employees and the merit system, but does so

in an expeditious and understandable manner.

I have heard comments this morning attacking our proposal. I

hope we can focus more on the problem the Senior Executives Association, in recognition of a serious problem, has put forth a very serious proposal that we believe will correct the matter, but more

than that, we hope the debate will lead to some reform that will

make a meaningful difference.

Thank you very much.

[The prepared statement of Mr. Bransford follows:]

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Mr. PORTER. Thank you very much, appreciate your testimony.

Mr. McPhie.

STATEMENT OF NEIL A. McPHIE

Mr. MCPHIE. Thank you. Good morning, Chairman Porter, Ranking Member Davis, and members of the committee. My name is

Neil McPhie. I am the chairman of the U.S. Merit Systems Protection Board. Thank you for the opportunity to appear before you

today to testify about the proposal to establish a Federal Employee

Appeals Court.

My comments today summarize my written statement, and I respectfully ask that my written statement be included in the record.

The Senior Executives Association advances two main reasons

for consolidating the existing complaint, appeals and grievance

process into a single system administered by a court. The first reason given is that the current system is complex and confusing, in

that personnel actions can be challenged before multiple bodies

that apply different law.

The second reason given is that under the current system it

takes too long to resolve challenges to personnel actions. I believe

the second reason, delayed resolution of disputes, is the greater

concern. I submit, however, that the proposal ought to be subjected

to fuller study.

As to the first reason to establishing a court, it appears that

managers who view the current system as too complex and confusing are primarily responding to the multiplicities of our laws and

regulations that govern the Federal employment relationship, and

not the fact that there are multiple avenues available for challenging personnel actions.

Without providing an exhaustive list I would point out that an

employee could claim that a single personnel action was improper

for any or all of the following reasons: it was not taken for the efficiency of the service; it was discriminatory; it was taken in retaliation for the employee’s whistleblowing; it violated the corrective

bargaining agreement; or it constituted an unfair labor practice.

Under the current system each of the claims I have just described could be considered by a different body, or in some instances by an arbitrator. Nevertheless, all of the claims could still

be made if those bodies were combined into a single entity. My

point is that insofar as day-to-day management of the Federal work

force is concerned, complexity may be an outgrowth of the numerous detailed rights that policymakers have conferred on civil servants. In general the perceived complexity of the current system

does not seem to be directly caused by the availability of multiple

avenues for review of personnel action.

In this connection I note that the current system has safeguards

intended to prevent inconsistent decisions. For example, by statute

an employee who believes that a personnel action was taken

against him because of his whistleblowing must make a binding

election among three possible review mechanisms: a grievance, a

direct appeal to the MSPB, or a complaint for corrective action before the Office of Special Counsel. A choice of any one of these avenues forecloses the other two. Without going into further examples,

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I would simply observe that the current system is not designed to

reach inconsistent decisions.

As to the second main concern, lengthy delays, I note that a typical non-mixed case—that is one that does not go to EEOC—moves

through the administrative system fairly quickly. In fiscal year

2005 the MSPB’s administrative judges issued decisions in an average of 92 days. In over 50 percent of the cases, the administrative

judges’ decisions became the final decision. Based on fiscal year

2005 figures, on average it takes no more than 122 days from the

date of the personnel action to the AJ’s final decision. Either party

may seek review of the administrative judge’s decision before the

full MSPB, and the Board members are striving to decide cases on

average within 120 days.

In fiscal year 2005 the Board reduced its pending headquarters

inventory by 38 percent, from 955 cases to 593. A smaller inventory

obviously means that newly filed cases will be decided more quickly. The MSPB is firmly committed to reducing its processing time

as new Department of Homeland Security and Department of Defense appeals systems go into effect, although as I have stated in

the past before you all, that MSPB will treat cases from all agencies equally.

Assuming that the full MSPB can decide cases within an average

of 120 days, in a typical case the total time from the date that personnel action is taken until a final judicially reviewable administrative action is rendered should be about 277 days, roughly 9

months.

The mixed case process where there is an appeal from an action

that is both within the Board’s jurisdiction and that the employee

believes was discriminatory, presents a significant timeliness challenge. If the employee chooses to pursue every step in the process

within regulatory timeframes, then approximately 695 days, or

nearly 2 years, will have passed before administrative review is

complete. The proposal from the Senior Executives Association

would significantly modify the procedures by which discrimination

claims are decided.

It comes as no surprise, when I would tell you that it is my hope

that you as policymakers would exercise great caution when studying ways to modify procedures for certain discrimination claims.

In conclusion, it is possible that streamlining benefits may be

achieved by consolidating current dispute resolution bodies into a

single Federal Appeals Court. I would suggest, however, that the

efficiencies sought by the Senior Executives Association could possibly be gained by reforming the current system. An appropriate

course, in my view, would be to form a task force of the stakeholders to study possible changes and work to resolve inefficiencies in

the current system. Naturally, the MSPB will be pleased to assist

any such task force with its work.

Again, thank you very much for permitting me to come and make

these remarks.

[The prepared statement of Mr. McPhie follows:]

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Mr. PORTER. Thank you, Mr. McPhie.

Ms. Cabaniss.

STATEMENT OF DALE CABANISS

Ms. CABANISS. Chairman Porter, Ranking Member Davis, and

members of the subcommittee, my name is Dale Cabaniss. I have

the honor of serving as the chairman of the Federal Labor Relations Authority. Thank you for the opportunity to appear before

you this morning as you examine the idea of creating a one-stop

shop for the resolution of Federal employee complaints, appeals

and grievances. I appreciate your continuing interest in this topic

and your efforts to evaluate ways to improve government operations, while retaining important due process rights for Federal

employees.

There are a lot of comments that have been raised that have

merit. I agree with Chairman McPhie that it is important to have

the stakeholders involved, and I would encourage that committee

to further study the idea of a Federal Employee Appeals Court.

As you know, in 1978 the Civil Service Reform Act was enacted

to replace a then-existing patchwork system of Federal employment

governance. Chapter 71 of the statute established the Federal

Labor Relations Authority by consolidating three previously independent entities: the Federal Service’s Impasses Panel, the Office

of the General Counsel, and the Federal Labor Relations Authority,

decisional component which was preceded by the Federal Labor Relations Council. Under our statute, our General Counsel, our Administrative Law Judges, the Authority and the Federal Service’s

Impasses Panel, retain their important statutory independence of

their prosecutorial and adjudicative responsibilities, but we co-exist

in terms of managing our administrative overhead.

From this perspective, the FLRA does represent a one-stop shop

as a single point of entry for certain cases falling within our jurisdiction. During my time at the FLRA it has been my experience

that each of these previously separate components has been able to

successfully retain its statutory independence without the need for

excessive, duplicative administrative budget, human resource or

technology personnel.

As you are aware, the Federal Labor Relations Authority does

not initiate cases. All proceedings before the FLRA originate from

filings arising through the affirmative actions of Federal employees, Federal agencies, or Federal labor organizations. For example,

an employee who believes he or she has suffered an alleged unfair

labor practice may petition the FLRA General Counsel. Our General Counsel, through one of the seven regional offices nationwide,

will investigate this claim. If the General Counsel ultimately issues

a complaint, the case moves to the Office of Administrative Law

Judges where it will either settle or be scheduled for a hearing. If

a case moves to a hearing, it will either settle or the assigned judge

will issue a decision. Upon issuance of an ALJ decision, the nonprevailing party may then appeal to the FLRA Authority decisional

component for adjudication. The Authority will issue a decision,

after which judicial review may be had in either the U.S. Court of

Appeals for the circuit in which the aggrieved party resides, or the

U.S. Court of Appeals for the District of Columbia.

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Examining this process more closely, you will see that a ULP

case can potentially route through three of our agency’s four major

case processing components, the OGC, the Office of the Administrative Law Judges, and the Authority. And each component engages

in case processing activities that vary in complexity, time and procedures.

To address potentially lengthy case processing and to improve

the agency’s overall responsiveness to its customers, during the

past year we began collecting baseline performance and activity

costing information, and revising our internal performance standards. Consistent with all executive departments and many other

small agencies, we will soon implement agency-wide processing

goals that are aligned directly with our executives’ and managers’

performance appraisals. Thus, regardless of which component a

case is currently in, we will remain cognizant that there is a customer, whether agency or union, waiting not only for a fair decision

but a timely result as well.

One of the issues that has been identified with respect to the employees appeals process is the potential overlap of jurisdiction and

the opportunity to raise issues in alternative forums. This is not a

significant issue at the FLRA. For example, Section 7116 of our

statute provides that issues which can properly be raised under an

appeals procedure may not be raised as an unfair labor practice.

This includes employment matters such as hiring, firing and the

failure to promote. These matters are generally subjected to the jurisdiction of the MSPB.

However, there are some instances in which different independent agencies could issue rulings involving the same employee complainant. For example, if a group of employees are terminated from

Federal service, they may appeal that termination to the MSPB.

Depending on the factual situation, at the same time, the union

representing that bargaining unit may file an unfair labor practice

charge with the FLRA alleging the agency failed to follow the collective bargaining agreement in effecting the employment action.

The two cases are related, but because they raise different legal

issues, there is the possibility of different rulings in different forums.

In another example, where a factual situation involves multiple

related actions by an agency, it would be possible to litigate the

various parts separately if different legal issues can be identified.

For example, a bargaining unit employee could be terminated from

Federal service for insubordination resulting from his or her refusal to accept an overtime assignment. The bargaining unit employee could appeal the termination from Federal service to the

MSPB, while also alleging an EEO violation for how he or she was

treated during the investigation of the incident. At the same time,

the union representing this particular bargaining unit could file an

unfair labor practice charge alleging the employee was ordered to

take the overtime assignment in reprisal for the employee’s union

activity. Because each piece of litigation raises a separate legal

issue, each case will operate independently from each other. However, I should point out this is a rare occurrence. This is not something that you would see very often.

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In conclusion, while there is presently not a great deal of overlap

in jurisdictions between the FLRA and the other agencies represented here today, I am sure we would all agree there is room

for continued improvement administratively and operationally.

Thank you again for the opportunity to appear this morning. I

would be pleased to respond to any questions you may have or provide any additional information you seek.

[The prepared statement of Ms. Cabaniss follows:]

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Mr. PORTER. Thank you very much.

Ms. Dominguez, appreciate you being here.

STATEMENT OF CARI DOMINGUEZ

Ms. DOMINGUEZ. Mr. Chairman, Congressman Davis, members of

the subcommittee, thank you very much for inviting me to testify

today on this very important topic. I am Cari Dominguez, Chair of

the Equal Employment Opportunity Commission. First and foremost I want to applaud and commend this committee for allowing

us this opportunity to look into ways for improving the Federal employee appeals and complaint process.

Designing a process that efficiently and effectively resolves workplace disputes is of paramount importance to the Federal Government and to taxpayers. The EEOC plays a very significant role in

that process. While this hearing is focused on the multiple complaint and appeal processes that are available to Federal workers,

our view is through the lens of the EEO process. That is the process that we deal with on a daily basis.

Many of the concerns that have been expressed and raised by the

Senior Executives Association are concerns that we share. We recognize that reform of the Federal EEO system is warranted. Indeed, the Federal EEO process has been perennially criticized as

too slow, too cumbersome, too expensive, and subject to perceived

or real conflicts of interest.

Many of the critics of the system consider the current arrangement under which the same agency accused of discrimination investigating itself has a conflict of interest. The EEO process is also

sometimes used to address workplace disputes that belong in another forum. Clearly, these issues raise the question as to whether

agencies, employees and taxpayers are being well served.

In my view, what is needed is a better model and a more flexible

system. It is critical that sufficient resources be devoted to those

cases where it is likely that discrimination has occurred.

EEOC’s private sector charge process serves to inform us. As you

know, we were established as part of the Civil Rights Act and we

have been conducting investigations filed by private sector employees in the past 40 years. Our private sector complaint processing

system was at one point overburdened and very time intensive. At

one point we had over 110,000 charges backlogged, and the average

processing time to complete a charge was well over a year. Without

any significant change, we estimated that it would take more than

16 months to even begin an investigation.

In the mid 1990’s the Commission adopted a system known as

Priority Charge Handling Procedures, using a similar model to the

triage system that is applied in the health care field, whereby the

most compelling cases are handled first.

We have found that this system has been far more efficient, responsive and fair, not to mention economical, than the previous approach, where all charges, regardless of merit, were afforded the

same time and attention. The average processing time for charges

filed with EEOC in the private sector is now less than half of what

it was 10 years ago, and has averaged 165 days in the last 3 years.

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I believe that we need to draw from lessons learned in the Commission’s private sector model to design a Federal sector system

that is truly the best.

One of the concerns frequently voiced is that the various processes for employee complaints and appeals are redundant and overlapping. There is a type of case that has been mentioned, where

EEOC reviews decisions of the MSPB to ensure proper application

of the employment discrimination laws. These are known as the

mixed cases, and are frequently cited by those who raise the redundancy issue. Yet over the years, review of the MSPB decisions has

constituted a very small number of appellate cases, in fact, only 1.1

percent of our 2005 receipts.

Likewise, EEOC may review certain grievance decisions from the

Federal Labor Relations Authority on issues of discrimination, but

again, those cases make up very little of EEOC’s appellate docket,

two-tenths of appellate receipts in 2005.

We believe that reform of the various complaint and appeal processes to include the Federal EEO process can be a very positive

step. Although the concept of a one-stop process is worth exploring,

we believe that it requires further study. We question whether the

creation of an Article I Court, without any changes to the administrative agency process, would actually yield the results intended.

The EEO workload alone for a new court could be significant. In

fiscal year 2004, more than 19,000 EEO complaints were filed with

agencies. By contrast, over the last 5 years, Federal employees

have filed fewer than 1,300 lawsuits raising discrimination issues

in Federal District Courts. This amounts to about a tenth of 1 percent.

Further, the proposal under consideration would place all workplace disputes into a single judicial forum, one that has potential

to become more legalistic, more expensive, more intimidating, and

likely more time consuming than the existing processes. It may

well have the effect of discouraging employees from seeking redress

for any discrimination experienced, and that should not be the goal

or result of any reform proposal.

Ensuring a workplace free of discrimination is vital to our Nation’s interest. Much progress has been made, but much more remains to be done. Improving on an approach that allows for the

proficient resolution of workplace disputes is an objective that we

all share and work diligently to meet. It is important that we and

this subcommittee continue to look for ways that we can design a

system that works better. We believe that reform, informed by

what works well in the current administrative framework, is a good

starting point, and provides the best platform for those efforts.

Thank you very much for the opportunity to comment, and I will

be happy to answer questions.

[The prepared statement of Ms. Dominguez follows:]

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Mr. PORTER. Thank you very much.

Before we get into questions, I would like to heed the request of

Mr. Davis that we include statements prepared by the National

Treasury Employees Union and the American Federation of Government Employees to be submitted as part of the record. So without objection, so ordered.

Thank you very much.

[The information referred to follows:]

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Mr. PORTER. I have a few questions for the EEOC. Where do you

think the delays are occurring in the Federal sector, EEO processing, and what suggestions do you have to make it more fair and

more efficient and effective?

Ms. DOMINGUEZ. Thank you, Mr. Chairman. Since joining the

Commission, we have looked at this issue very carefully and deliberately, and I am convinced that the greatest delay occurs during

the investigative process conducted by Federal agencies.

There is a reluctance to look at the merits of the case and then

apply some judgment, primarily because of fear that at some level

in the process the case will be reversed. So I think there is a reluctance by Federal agencies to conduct anything less than a thorough

and full investigation, even when the allegations do not warrant

such a lengthy review.

Mr. PORTER. You mentioned that the system, 96 percent of the

cases are fully adjudicated, and of course, at heavy costs to taxpayers because of purely the manpower and the time. And 96 percent are of course deemed to be without merit. Is that indicative

that the system is working because 96 percent are without merit?

Does that mean the system is working?

Ms. DOMINGUEZ. We believe that what it tells us is that 96 percent of the issues in which we found no discriminatory findings

may relate to other management issues or other kinds of issues

that cannot be substantiated through our discrimination analysis.

We have put a lot of other things in place. One of the things we

have encouraged agencies to do—and I have been personally meeting with agency heads—has been to engage more in the

precomplaint counseling process. This is the time right before

someone files a complaint, to do more mediation, to do more counseling, to do more outreach and training. We believe those are the

tools that Federal agencies should continue to strengthen. We still

have a very high conversion rate between the precomplaint counseling stage and the actual filing of a complaint. Government-wide

it is about a 45 percent conversion rate. We think we can drive

that down and keep complaints from being filed if each agency continues to engage much more aggressively in dispute resolution administrative processes.

However, I do think that once a formal complaint is filed, it is

the old adage of, you know, there is a perception that the fox is

guarding the hen house, and I believe that we need to remove that

responsibility. It would be better for the agency. It would engender

greater trust, and I think we could see dramatic improvement in

the efficiency of the process.

Mr. PORTER. Thank you.

I would like to remind my colleagues, if we can keep our questions to approximately 5 minutes, I am happy to do additional

rounds if necessary. Mr. Davis, any questions?

Mr. DAVIS OF ILLINOIS. Thank you, Mr. Chairman.

Mr. McPhie, both you and Ms. Dominguez, what is it about the

mixed cases that cause so much delay, and which makes it more

difficult to process those in a more timely manner?

Mr. MCPHIE. You want me to go first?

Mr. DAVIS OF ILLINOIS. Yes.

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Mr. MCPHIE. The way the regulations are set up, a person has

a right, if they are dissatisfied with an MSPB decision on discrimination, to seek review before the EEOC. And we get our agency decision very, very quickly. And it leaves our hands, it is at the

EEOC. We have no control over the process, and then it would

come back to us at some point in time in the distant future. It goes

back and forth, and I have always wondered why, unlike other provisions described here this morning, people couldn’t elect a remedy.

Once they elect, they have to stay with that process. If they elected

the Board remedy, for example, the case would be finished.

Mr. DAVIS OF ILLINOIS. So the joint action is not so much the

problem as the regs governing EEOC becomes more of a problem

than any difficulty of the two agencies concurrently working together?

Mr. MCPHIE. Oh, yes. EEOC is the expert, there is no question

about that. And the Board, over 25 years, has developed a history

that is quite good. EEOC has said that. But the process, I mean

the regulation gives the person an unfettered right, if they don’t

like what they get from the Board, to take it over to the EEOC.

Unless the regulations are changed, then you have to respect that

right.

Ms. DOMINGUEZ. I fully agree with that. I believe that there is

access to review on the discrimination aspects of the claim by the

Commission, and while as I mentioned, it makes up about 1 percent of all of the appellate reviews, there is that component.

Mr. DAVIS OF ILLINOIS. Thank you very much.

Mr. Bransford, I would hope that certainly my comments were

not part of the notion of opposition to or attacking the proposal. I

think I have a very open mind about this, and I am trying to arrive

at what will get the best protection as expeditiously as possible,

certainly for those employees who feel that somehow or another,

they are just not getting a fair shake. I mean I get people who call

me and who come by my office, and there are times when I think

we are going to have to call a psychiatrist—[laughter]—or somebody to keep them from going berserk, in terms of what they express about the process and whether or not they are going to ever

get fairness. You indicated that your most serious concern is the

length of time that it takes to resolve discrimination complaints

and mixed cases. We have heard some information relative to the

mixed cases. What is there about the discrimination complaints

that makes it so difficult?

Mr. BRANSFORD. There are, Congressman Davis, two things

about them I think from a manager’s perspective. First, the manager is not a part of the process. The EEO process in the agency

works separately and it is supposed to do that. And I think to a

certain extent when the agency is investigating itself, it should be

free from management influence, but the manager doesn’t feel like

they are part of the process.

And second, it goes on for so long, years. And the manager has

to continue to work on a day-to-day basis with that employee who

is unhappy with the manager, and very often that employee is a

problem employee, is a poor performer or is engaging in workplace

misconduct. The employee has filed an EEO complaint. The manager must then manage and make tough decisions and face a reVerDate 11-MAY-2000 09:36 Mar 21, 2006 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6633 D:\DOCS\25705.TXT HGOVREF1 PsN: HGOVREF1
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prisal complaint because of an EEO complaint that has no end, all

of this in a process where the manager is not a part. I think it creates difficulty for the manager.

And then from the employee’s perspective, because I have also

been involved in these cases from the employee’s perspective, when

a case takes so long to resolve and there is a finding of discrimination, it is very difficult to give meaningful justice to an employee

who has been wronged after 3 or 4 or 5 years.

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

Mr. PORTER. Congresswoman, do you have any questions at this

point?

Ms. NORTON. Thank you very much, Mr. Chairman.

I want to say to you, Mr. Bransford, that I am very sympathetic

with what you go through. I mean I had to live with this system.

I had to live with a system where people found multiple charges

at a time, frankly, when we were trying to bring the agency, which

had been a scandal, back to life. And so I hope you won’t take our

questions as meaning we don’t see the problem. I lived with it. It

is a terrible problem, about having someone who just lingers, and

understands the system well enough to find ways to linger.

Could I ask you, did you, in designing this idea, speak with or

consult with the unions who are apparently just, perhaps even

more frustrated with the present system as you are?

Mr. BRANSFORD. I have not had discussions with unions about

this specific proposal. I have had numerous discussions with union

officials over the years about the basic problem. This proposal, I

would point out, was first designed about 10 years ago, and studied

at that point. We have since revised it and developed it and have

continued to push for it, and I think within the last 3 years, particularly in what has happened with Department of Homeland Security and the National Security Personnel System. I think the debate becomes even more necessary because the focus has been on

reforming MSPB appeal rights, and I think the problem is actually

broader.

Ms. NORTON. The reason I asked the question——

Mr. BRANSFORD. But I have not consulted with them on this proposal.

Ms. NORTON. The reason I ask the question, Mr. Bransford, is

that where management and labor have the same basic criticism,

one would think that is an opportunity for them to take at least

a go-round at seeing if they could together come up with an answer

even if they had basic differences. Someone—I don’t know if it was

you, Mr. Chairman, or someone in their testimony—indicated that

it would be advisable for there to be a task force of the stakeholders, as say, kind of a beginning point.

Mr. Bransford, would you disagree with that as one way to proceed?

Mr. BRANSFORD. I think that is a very good way to proceed, and

I think that task force of stakeholders should include the labor

unions.

Mr. PORTER. Excuse me, Congresswoman, I am not sure who said

it, but we will give you credit if you like. It is a good idea. [Laughter.]

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Ms. NORTON. I mean it may have been in someone’s testimony,

Mr. Chairman. I got it from—oh, it was Mr. McPhie. And particularly since very often management and labor don’t agree that there

is even a problem, boy, that is a good head start it seems to me.

I was a little puzzled by the very informative sheet that the SEA

put out on the Federal Employee Court of Appeals. In talking

about the need for reform, Mr. Bransford, you have a section here

about the number of days it takes for various parts of the system

to proceed, and you start with the 601 days for the agencies to decide a discrimination case, and you say, ‘‘when no judge is involved.’’

Mr. BRANSFORD. That is right.

Ms. NORTON. So that means we haven’t even gotten to the appeal

process yet. Then you go on, 280 days for agencies just to complete

investigations. Here, we are not to appeal yet.

Mr. BRANSFORD. That is right.

Ms. NORTON. We are still on the ground.

Mr. BRANSFORD. We are still in the agency.

Ms. NORTON. And even in the agency, in a real sense we really

may be hopping—I mean there is something called bottom-up and

top-down. Then you go on that the EEOC judge takes 463 days.

Well, if you combine the number of days before you even get out

of the agency, you have about twice as many days as it takes for

the EEOC judge to be involved in the case. And of course, no appeals court touches that, I take it?

Mr. BRANSFORD. Well, it has not gone to Federal Court yet. At

that point it can go—then after that, it can go to Federal Court.

Ms. NORTON. After that. So we are still left with the employee

down there not knowing whether or not there is any cognizable

claim even. I am wondering whether or not we want to nip the

problem in the bud, as they say, because I go on again with your

sheet, because you complain, I think quite rightly, that the process,

this process, this process that doesn’t get to appeal—so few cases

get to appeal. You say the process rarely finds discrimination,

meaning that managers are often unfairly labeled as discriminating officials.

And then you go on to cite how few cases find discrimination.

One of the reasons for that, Mr. Chairman, is that this is a free

system. These are well-educated employees, and whatever message

you send, they are going to receive. And by the way, if you send

a message that there is an appeals court, a brand new nice appeals

court, don’t underestimate Federal employees, please. I am sure

that will be just where everybody tries to get. I just want you to

keep that in mind. But again, here we have very few cases.

Now, Ms. Dominguez testified about ways that the EEOC is trying to reach out to help these agencies get through that process.

I would like to know whether or not you think that given the resources that go into this system, even before any appeals judge get

a hold of it, whether it wouldn’t be wise for the committee to concentrate on carrying out the Federal mandate that is now law, that

every agency has to have a viable ADR process, because I think

that if anything, this means that whatever version of ADR we are

using, is failing, and you, therefore, after it has failed, are trying

to get hold of the few cases that make it to the appeals system with

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good reason, but leaving the process as it is where all of the delay

really is.

So I am asking you whether or not your employee, you who are

the manager, wouldn’t be better off if there were a way to settle

this case or to negotiate the case early on, and then if it can’t be

negotiated, and the employee wants to go on up, that is another

problem. But isn’t our time better put into—given what appeals are

going to produce, isn’t it better put into trying to get rid of frivolous

cases, cases that might be easily settled, because you say right

here, 20 percent of the cases settle but many result in small significant benefit for the complainant, meaning that the complainant is

willing to take a small benefit. So I am asking you aren’t we kind

of putting the cart before the horse and wouldn’t it be better for

the committee to focus on trying to get these cases resolved early

so that whatever appeals process we decide upon has very few

cases in the first place.

Mr. BRANSFORD. The short answer is, yes, I believe that there

should be more effort made to alternative dispute resolution and

mediation. However, I don’t think that would solve the problem.

The Senior Executives Association supports requiring managers

to actually participate in alternative dispute resolution. The EEO

does—and it is one of the significant improvements of the last 4 or

5 years—require ADR programs in agency EEO systems, which I

believe has actually resulted in a reduction of many complaints

that could have gone forward. But the problem is——

Ms. NORTON. That is one agency. We are dealing with five agencies, all of which were created because they have very distinct expertise. I mean the reason that in 1978 this happened in the first

place was because the government found, the Congress found, that

the specific missions of these agencies were so dissimilar, so dissimilar that they warranted actually setting up different agencies.

That took a whole lot to do.

Now, essentially you come back and you put them all together

again, at least up at the top. There has to be a very good reason

for doing that, Mr. Bransford.

Mr. BRANSFORD. And the basic reason for doing it is to recognize

that it is all about the Federal employee complaint system that

very often has overlapping concerns, overlapping issues. Under the

current system if you go to the EEOC on an issue and you want

to take it to Federal Court on discrimination, you have to go

through the discrimination route. If you want to argue Federal

Civil Service, you take it through the MSPB and the Federal Circuit.

Ms. NORTON. Would you be in favor of what we have in the Federal court system or in most court systems, you choose your forum?

Mr. BRANSFORD. You choose your forum, that is right, and——

Ms. NORTON. I am sorry. Would you be in favor of that as one

way to deal with this problem, so that you wouldn’t then say, oh,

I chose my forum, but here I am going to relitigate it in another

forum.

Mr. BRANSFORD. But you would still have multiple ways of attacking a problem, and I think tighter rules on choosing your

forum would be a positive reform, but I don’t think it takes care

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of the compete problem because you still have a very lengthy delay

in the EEO processing that is not being addressed.

Ms. NORTON. Mr. Chairman, I can stop here if you want to go

to other people.

But again, you keep going back to a delay in the EEO processing.

Therefore I want to focus you on the EEO processing. If the delay

is there, then the question for the committee is why don’t we tackle

where the biggest delay is? We may still find we have delays in the

appeal process. That is on the table as far as I am concerned, but

the notion of not tackling where the real delay is, that is where the

employee is encountering problems. Where is your little sheet that

I had? Your employee, and if you say that is who you are doing this

for, your employee that you are so concerned about, and your manager, at 601 days for the agency. That is the agency where you are,

Mr. Bransford.

Mr. BRANSFORD. That is correct.

Ms. NORTON. For the agency to decide a discrimination case. You

still got it at that point, you, the agency. And then 280 days for

the investigation. I am just perplexed, Mr. Chairman, why I would

want to leap over to the appeals process without tackling this and

finding ways to make this—to reduce this process, given the results

you, yourself point out here. Most of these cases are going to wash

out in the first place, so we are interested in the tiny, tiny number

that don’t wash out.

Mr. PORTER. Congresswoman, that is why we are here today, and

I think your point is well taken.

Mr. BRANSFORD. Our proposal would actually start the process in

the court on day 1, not day 601, and the investigation, the consideration of the complaint would be done by the independent Court

of Appeals, the Federal Employee——

Ms. NORTON. Then I have to have a followup question. Then

what you are suggesting, Mr. Bransford, is we have a court where

we transfer the complexity in the administrative process now to, of

all places, what is always a more costly process, a court process.

You do say in your sheet that the Court’s jurisdiction would encompass duties the Office of Special Counsel, the General Counsel’s Office of the FLRA. The court—imagine this now—the court would

have an investigatory arm. In America we are used to agencies investigating. Encompassing the duties of the OSC, the Office of Special Counsel and the General Counsel of the FLRA. This transfer

of jurisdiction, it seems to me, doesn’t do anything about the number of days, doesn’t do anything about the delays. What it does do

is pile them all up in one agency, and we know from experience

that if you want to make a problem worse, create a big bureaucracy

and say, now all of the problems are yours, all the delays are

yours, all of the jurisdiction, including jurisdiction that a court has

never had, which is jurisdiction over investigations, that is all

yours. And somehow if we put all of that in a court, simply because

it is under the same roof, everything is going to be done more

quickly than it is done now.

I don’t know, Mr. Chairman, I remain to be convinced.

Mr. PORTER. Thank you, Congresswoman, appreciate it.

Mr. Cummings.

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Mr. CUMMINGS. I am just going to be very brief because I think

Ms. Norton pretty much expressed my frustrations here.

But I just want to just bring some of the—you know, Mr.

Bransford, and I think it was Mr. McPhie, I understand you are

trying to do something to help employees, and particularly employees that find themselves in a situation where they need a remedy

for what they at least perceive to be a problem. I am just wondering, you know, I have read a statement from Colleen Kelley, the

president of the National Treasury Employees Union, who seems to

think that this is not the greatest idea. I guess when I am trying

to help somebody, I would kind of like to know that the help that

I am offering them is truly help and not something that they would

deem is not helpful. So I am just wondering—and then I want to

put alongside of that, when we did the Department of Homeland

Security, we combined some 22, put together 22 agencies and created a super agency. When we look at what happened with

Katrina, there is not one human being that cannot say that there

was a failure on the part of a lot of folks, local, State and definitely

Federal.

So I am trying to figure out. She claims, that is, Ms. Kelley

claims that this is a bureaucratic nightmare, and I think that is

to some degree what Ms. Norton was kind of getting at. I just want

to make sure—first of all, have you been in contact with any of the

union folk?

Mr. BRANSFORD. I discussed the broad problem with the unions.

I have not discussed with them or had a debate with them about

this specific proposal, nor have I attempted to get their buy-in to

it.

Mr. CUMMINGS. Not necessarily buy-in. I tell my staff, in dealing

with people, one of the best things that you can do is consult with

people, at least talk to them, because the person who could be your

greatest advocate can become your worst enemy if they are not at

least in some way included in the process. It seems to me that if

I am trying to create something and redo something to help someone, it just seems to me—you don’t have to have a buy-in, but at

least consultation, because I am sure the unions catch a lot of the

flack when these problems come up. I was just curious as to what

your process was, that is all.

Mr. BRANSFORD. What our process was in developing this proposal?

Mr. CUMMINGS. Yes.

Mr. BRANSFORD. We talked to quite a few officials and ex-officials

at the various agencies that do this, and we talked to many managers, and received feedback from them about their concern, and

in addition to that, we talked to a lot of employee advocates about

how these different agencies actually work.

I have discussed with AFGE and NTEU and other labor unions

the basic problem of the employee appeals system, including the efforts of the last 3 years to diminish the authority and use of the

Merit Systems Protection Board, and I am well aware of their position on that. I am also well aware, Congressman Cummings, that

the unions would probably be very much against my proposal because of its provision to eliminate labor arbitration.

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Nonetheless, we believe that it is the best avenue, it makes the

most sense. The Merit Systems Protection Board was created to

hear the very same cases that labor arbitrators also hear, and it

makes no sense to have a Board that is accountable to Congress

and to the courts, and labor arbitrators that are not nearly as accountable, and a perception of managers—and the employee advocates, I might also add—that in general arbitrators often unreasonably favor the employee in their decisions. It seems to me to be,

when you look at it, an option that is unnecessary, especially considering the Board, but one that is very much cherished by the

union, and it goes back a long way, and I would expect them to oppose our proposal on that basis alone.

Mr. CUMMINGS. Where would the court be centralized? I mean

where would it be? Would it be regional? I mean would we have

courts around the country? I take it that MSPB and the FLRA

maintain some kind of regional agencies throughout, or umbrellas

out there, and I am just wondering first of all, where do you propose this court being?

Mr. BRANSFORD. I think those details need to be worked out as

the legislative process unfolds, but I would imagine like most Title

I courts, it would be headquartered in Washington, but I would assume it would have offices throughout the country. The MSPB has

I think five or seven regional offices. The FLRA has offices that

deal with Federal employee issues, and the EEOC has quite a few

offices. So I would think you would have to set up offices in every

place where currently to Federal agencies deal with Federal employee complaint issues.

Mr. CUMMINGS. And offices meaning that they would also be

places where matters could be adjudicated. Is that what you are

saying?

Mr. BRANSFORD. Matters would be adjudicated. Hearing examiners and judges would be housed in those offices, and court staff to

investigate and do dispute resolution.

Mr. CUMMINGS. Well, the jury is still out. Thank you.

Mr. PORTER. Thank you, Mr. Cummings.

We are going to be voting on the House floor in about 10 minutes, and I am willing to have another round of questions if the

committee would like. Congresswoman.

Ms. NORTON. Commissioner Dominguez, wouldn’t some of this

problem go away if the EEOC had the same kind of enforcement

authority in the Federal sector that it has in the private sector?

Ms. DOMINGUEZ. Congresswoman Norton, certainly it would improve. We are often frustrated because there is oftentimes a resistance to provide necessary data during the hearings process, and of

course, the Commission doesn’t have any kind of sanctioning powers to impose submission of that data.

Let me just for the record—I know that SEA provided the data

for 2004 in terms of hearings, but I am just very proud to report

that in 2005 we have gone from 421 days to 249 days, so we are

trying to squeeze out the efficiencies, but there is a point where

you have to look at the foundation of the process, not necessarily

what the current process is, but how are we organized. And that

I think was really the key part here.

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Ms. NORTON. I think first things first. We may have problems in

the appeal process, but I am yet to understand why it would begin

there rather than where all the delay is.

Mr. Bransford, for as long as—and there has been Federal law

and administrative process, it has been Federal process to keep

people out of court. That is why you have all of these decisions,

some of them counter-intuitive in this process, but have all these

decisions saying exhaust your remedies, exhaust your remedies.

Your proposal would actually make what are now administrative

functions into judicial functions, functions literally of a court. Isn’t

that turning the whole notion of keeping people out of court on its

head, and reversing what has been Federal policy for decades? Why

would we want to do that?

Mr. BRANSFORD. Well, we would want to do it for two reasons.

One is, by creating a Title I court like this, I think you are creating

an organization that would have a tremendous degree of independence and integrity, sufficient, for the second reason, to remove

these Federal employee cases from Federal District Court and actually putting them in this Title I court, where employees would

have——

Ms. NORTON. I am talking about the administrative function.

Mr. BRANSFORD [continuing]. One shot at it. We think by creating a specialized court that was focusing only on Federal employee

issues, you could do this effectively without having an administrative process, and that administrative process that you are discussing is quasi-judicial already, the MSPB and the FLRA and the

EEOC and the Office of Special Counsel, which we think this

court——

Ms. NORTON. Mr. Bransford, are you aware that in the processes

right here, most employees don’t get a lawyer. Once you say you

are going into some kind of court, most—many cases are handled

by people themselves, pro se, by non-lawyers, by union representatives who aren’t lawyers, by friends who come in to help them. Now

we are creating, under your proposal, an administrative court, a lot

of complexity in it, complexity that is now in the administrative

process. Wouldn’t there be a need for a lawyer in this court process?

Mr. BRANSFORD. Well, there are also people who go to Federal

District Court pro se.

Ms. NORTON. Very few. That is no answer to my question.

Mr. BRANSFORD. I would agree. I would agree with that, but——

Ms. NORTON. The question here is, do you envision that people

would be able to go into this process without a lawyer, or would

feel that perhaps before an Article I court, they best have a lawyer?

Mr. BRANSFORD. I feel that this process could be set up specifically to handle pro se cases exactly like they are handled at the

MSPB or the EEOC——

Ms. NORTON. So here we have then a court doing what the administrative process does, only we call it a court and we send a signal that it should be treated like a court. There are a lot of mixed

functions in here. One of the great debates of the administrative

process when the NLRB was set up was about firewalls and fairness. One thing that having separate agencies does is to at least

make it clear that notion of fairness isn’t being violated because it

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is all mixed up in the same agency. I regard that as a problem that

needs to be dealt with.

You have the court handling advisory functions of independent

agencies. You have things in this court that no court has ever had

anything to do with, functions like issuance of guidance on labor

relations issues. It doesn’t sound to me like this is a court at all,

but a combination agency and court, some kind of hybrid, that

transfers a lot of complexity now in the administrative process upward.

I do have a question for Ms. Cabaniss. Ms. Cabaniss, you are

aware that we have before us not as a piece of formal legislation,

but what has been outlined certainly in a form which could become

legislative, a proposal called ‘‘Working for America Act.’’ So in viewing this proposal, I have had to look at it in light of that proposal

because—and to ask you what would be left of the FLRA if on the

one hand you get the Working for America Act, on the other hand

you get this act?

For example, under the proposed Working for America Act—I am

looking here at the executive summary—the unions would lose certain rights that now apparently are before you, the right to attend

formal discussions between management and employees. You handle I guess such grievances. Existing union right to attend formal

discussions between management employees on any personnel matter. There is, you know, emergencies. An agency could declare

emergency whenever it—excuse me—damn well pleased, and there

goes consultation and a whole lot of things that by fiat don’t come

any longer if we were to pass this act, and the Working for America Act.

And so this needs—you are very modest here—you kind of say,

this needs a little study. I am asking you if we pass both of these

things, the Working for America Act and this proposal, whether or

not there is any need for an FLRA, or whether we shouldn’t just

streamline government all together, and eliminate the FLRA?

Ms. CABANISS. That is a very good question. I see the proposals

as being distinct. The SEA proposal clearly looks as if it would take

the place of the FLRA. The Working for America Act, as I understand it, would limit the scope of bargaining. It doesn’t necessarily

take away any of the responsibilities of the FLRA. It might change

the type of cases that come before the FLRA, which certainly could

have an impact on the number of cases, depending on what the ultimate scope of bargaining is, and how many times, you know,

unions take to have those cases come before the FLRA. So it certainly would have an impact on our jurisdiction.

Ms. NORTON. But there wouldn’t be much left of the FLRA if we

had this proposal.

Ms. CABANISS. As I understand it, it looks like it would largely

take the place of——

Ms. NORTON. Just as well abolish the FLRA.

Mr. PORTER. Thank you.

Ms. NORTON. I think that is a very weighty and heavy notion to

bear in mind here, and if it is that easy, Mr. Chairman, fine, but

it hasn’t seemed that easy to me.

Thank you very much, Mr. Chairman.

Mr. PORTER. Thank you for your comments.

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Mr. Davis, any questions?

Mr. DAVIS OF ILLINOIS. Yes.

Mr. Bransford, if we could go back. It seems that I remember at

a point you suggested that part of the problem with the EEO process was that managers were not really integrated into that process.

If that is the case, could there not be some way to correct or fix

that to the extent that input from managers could be a part, and

would that not maybe help to streamline the process a bit?

Mr. BRANSFORD. Yes, it would. I believe that managers should be

more a part of the process, and the Senior Executives Association

has a legislative proposal that we have entitled the Federal Managers Fairness Act to do exactly that, to make managers more a

part of the process. And to the extent that this independent court

does not become a reality or is delayed in becoming a reality, we

think it is important that managers are brought into the EEO process, that they be informed when a complaint is filed, that they be

entitled to representation during investigations, that they be provided with relevant documents, that they be consulted, not necessarily in any authoritative way, but at least advised before a case

is settled so that their input could be obtained, and that they be

reconsidered for lost awards, lost promotions, lowered performance

appraisals if an EEO complaint is later found to not have merit.

We think that is important, and I suspect that the SEA’s proposal on this court would be studied for some period of time. We

hope that the other reform would take place in the interim, would

be less necessary if an independent court were set up because we

think these cases would move through it rapidly.

Mr. DAVIS OF ILLINOIS. Representative Norton has sort of indicated that this would be a different kind of court, sort of a hybrid,

something different than what individuals are generally accustomed to. Do you think that employees might end up feeling that

they were shortchanged if they now are blocked from moving to

Federal court in the traditional sense, or that they now can’t go

anyplace else, that this is it, and other people have the chance to

go to Federal Court, maybe even to the Supreme Court, if necessary, that someone might feel that their rights had been diminished or taken away?

Mr. BRANSFORD. I have thought a lot about that because I think

that is a very important question. Where I come down on it is by

creating an Article I court you are going to give the court I think

sufficient prestige and credibility that it will be able to fairly, fully

decide these cases. They would be appealable to the Federal Circuit

and then ultimately to the Supreme Court for EEO cases, so they

would be fully appealed.

The current system is to some extent clogging the Federal

Courts. The data that was thrown out here this morning is only

1,300 cases, but there are still quite a few in Federal Court, and

these are cases that have already gone through the administrative

process. Unlike in the private sector, where an employee goes

through the EEOC process in a less intensive way and faster, and

they can go to Federal District Court, there’s no separate mechanism.

It seems to me that the Federal employee appeals and complaints system has learned enough to be able to set up this type

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of a court to give it sufficient significance so that Federal employees would accept it, decide cases rapidly, and also deal with cases

as far as the input in a less formal way, so that employees could

feel comfortable doing that without having a lawyer if they chose

to.

Mr. DAVIS OF ILLINOIS. And finally, anyone who would respond,

is there any way that you can think of that would just simply

shorten for people the process? I mean the title I think ‘‘Justice Delayed, Justice Denied.’’ I mean there are people who obviously just

simply feel their cases will never get adjudicated, that they will

just hang forever and forever and forever and forever, and they will

never know. Does that do an injustice to our judicial notions and

our judicial system, and is there a way to really kind of speed that

up?

Ms. CABANISS. I know, at least in the FLRA’s experience, in our

statute Congress required us to do a certain type of case within a

specific time deadline. Perhaps Congresswoman Norton has a better sense than I do of why that was the case. When the decision

was made that the FLRA has to act on cases involving issues of

representation, we have to act as the Authority within 60 days.

Those kind of time limits were not imposed in our statute for other

types of cases. That is the only issue that I would option—suggestion that I would make, if Congress makes a determination that

the cases should be done within a specific amount of time, you

might look to that, and the history behind it as a model.

Mr. BRANSFORD. Congressman Davis, if I could address your

point. Current law does impose time limits, but the time limits

don’t have meaningful sanctions because when the time limit expires, the employee then has a right to move on to the next phase,

and they can choose where to go. And very often, when you are representing an employee, as I have had the occasion to do over the

years, and you get to that 180 days, you are left with a choice of,

well, do I go to Federal Court and its very expensive process, do

I go to the EEOC which is a less expensive but still expensive process, or do I wait for the agency to finish the investigation and learn

a great deal of useful information? Usually you decide to wait, and

the agency just takes off and takes its time.

So if the time limits had more meaningful sanctions, perhaps

that could speed the process up.

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

Mr. PORTER. Thank you.

A lot of good people that have real problems won’t enter the system because they are afraid it is going to take so long or that they

are wasting their time or have some of that intimidation. I would

like to note for the record that members can submit additional

questions.

Ms. NORTON. Mr. Chairman, could I just—irresistibly because we

have had a hearing on the Working for America Act, where you

were just seeking reactions to it, and here—my recollection is that

Ms. Cabaniss did not appear at that hearing and I am not sure

anybody from the FLRA appeared at that hearing. I would like to

know whether she supports the Working for America Act proposal?

Ms. CABANISS. I don’t really think that it is appropriate. You all

had the opportunity to talk to all the stakeholders, see where they

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are. The one thing I do support and I think is appropriate, is that

you all are having this discussion. Unlike, for example, Superfund

or the Clean Air Act, so many of these statutes come up for reauthorization that Congress has an opportunity to bring in all the

stakeholders, those who are affected, have the hearing, and discuss

is this where we want to be? Where do we want to go?

I don’t know that conversation has really taken place wholesale

on the statute governing the FLRA. Obviously, there have been

changes over the years, amendments through the appropriations

process, but I don’t know that anyone has really taken a hard look

or whether or not the statute best serves the interest of the agencies, but more importantly the interest of the employees. We are

a complex statute. Generally you do need a lawyer to come before

the FLRA. I think it is always appropriate to have that discussion

whether or not our statute is best serving the needs of our customers.

Ms. NORTON. But you are not prepared to endorse that proposal

at this time?

Ms. CABANISS. No, ma’am, I am not, just because it is not a piece

of legislation yet. We haven’t been involved.

Ms. NORTON. But for us to be doing a piece of legislation that affects primarily your agency, it seems to me that you would be the

first to want to have something to say about it.

Ms. CABANISS. Well, if given the opportunity to formally engage

on that, we would certainly be happy to.

Ms. NORTON. You hear her, Mr. Chairman? She would be happy

to engage in it. She is not engaging right now when I ask her questions, but perhaps you can engage Ms. Cabaniss later.

Mr. PORTER. Thank you for your questions, and thank you for

your testimony. I appreciate you all being here. Members do have

time to submit for the record additional questions.

Thank you all for being here. Have a good day.

[Whereupon, at 11:53 a.m., the subcommittee was adjourned.]

[The prepared statement of Hon. Elijah E. Cummings and additional information submitted for the hearing record follow:]

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