U.S. GOVERNMENT PUBLISHING OFFICE

30–098 PDF WASHINGTON : 2019

S. Hrg. 115–420 

NOMINATIONS OF HON. ERNEST W. DUBESTER, 

HON. COLLEEN D. KIKO, AND JAMES T. ABBOTT 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

NOMINATIONS OF THE HONORABLE ERNEST W. DUBESTER, 

HONORABLE COLLEEN D. KIKO, AND JAMES T. ABBOTT TO BE 

MEMBERS, FEDERAL LABOR RELATIONS AUTHORITY 

NOVEMBER 7, 2017 

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

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

JON TESTER, Montana 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

CHRISTOPHER R. HIXON, Staff Director 

GABRIELLE D’ADAMO SINGER, Chief Counsel 

DAVID N. BREWER, Chief Investigative Counsel 

MARGARET E. DAUM, Minority Staff Director 

DONALD K. SHERMAN, Minority Senior Counsel 

LAURA W. KILBRIDE, Chief Clerk 

BONNI E. DINERSTEIN, Hearing Clerk 
(III) 

C O N T E N T S 

Opening statements: Page 

Senator Lankford .............................................................................................. 1 

Senator Heitkamp ............................................................................................ 2 

Senator McCaskill ............................................................................................ 12 

Senator Hassan ................................................................................................. 13 

Senator Harris .................................................................................................. 17 

Prepared statement: 

Senator Heitkamp ............................................................................................ 23 

WITNESSES 

TUESDAY, NOVEMBER 7, 2017 

Hon. Jim Sensenbrenner, a Representative in Congress from the State of 

Wisconsin .............................................................................................................. 3 

Hon. Colleen D. Kiko to be a Member, Federal Labor Relations Authority 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 24 

Letter from the Office of Government Ethics ................................................. 26 

Biographical and financial information .......................................................... 29 

Responses to pre-hearing questions ................................................................ 50 

Responses to post-hearing questions .............................................................. 69 

Hon. Ernest W. DuBester to be a Member, Federal Labor Relations Authority 

Testimony .......................................................................................................... 6 

Prepared statement .......................................................................................... 72 

Letter from the Office of Government Ethics ................................................. 74 

Biographical and financial information .......................................................... 77 

Responses to pre-hearing questions ................................................................ 103 

Responses to post-hearing questions .............................................................. 123 

James T. Abbott to be a Member, Federal Labor Relations Authority 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 126 

Letter from the Office of Government Ethics ................................................. 128 

Biographical and financial information .......................................................... 131 

Responses to pre-hearing questions ................................................................ 154 

Responses to post-hearing questions .............................................................. 173 

Letter of support ............................................................................................... 177 

(1) 

NOMINATIONS OF 

HONORABLE ERNEST W. DUBESTER, 

HONORABLE COLLEEN D. KIKO, AND 

JAMES T. ABBOTT TO BE MEMBERS, 

FEDERAL LABOR RELATIONS AUTHORITY 

TUESDAY, NOVEMBER 7, 2017 

U.S. SENATE, COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 9:29 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. James Lankford, 

presiding. 

Present: Senators Lankford, Daines, McCaskill, Tester, 

Heitkamp, Peters, Hassan, and Harris. 

OPENING STATEMENT OF SENATOR LANKFORD 

Senator LANKFORD. Good morning, everyone. Today we will consider of Colleen Kiko, James Abbott, Ernest DuBester as to be 

members of the Federal Labor Relations Authority (FLRA). The 

Committee takes these nominations very seriously, so we are 

pleased to have three very strong candidates before us. All three 

nominees are highly experienced in Federal Labor Relations and 

have largely dedicated their careers to public service in the Federal 

Government. We thank you for your work. 

The Honorable Colleen Duffy Kiko, originally of North Dakota— 

earned a B.S. from North Dakota State University and her law degree from George Mason School of Law. Ms. Kiko began her career 

at the Federal Labor Relations Board in 1976 as a supervisory 

labor relations specialist while it was still a division of the Department of Labor (DOL). She has been associated with FLRA longer 

than it has been in its current capacity as an independent agency. 

After her initial job at FLRA, Ms. Kiko went to law school, then 

returned to Federal service, working first at the Department of 

Justice (DOJ), then the House Judiciary Committee. In 2002, Ms. 

Kiko became a judge in the Department of Labor’s Employees’ 

Compensation Appeals Board. Then in 2005, she was appointed by 

President Bush to serve as General Counsel (GC) at the Federal 

labor Relations Board, a post she held until 2008 when she returned to the Department of Labor Employees’ Compensation Appeals Board. 

Ms. Kiko, you began your career at the FLRA as a worker bee, 

and now you are sitting here before us nominated to be the Chair 
2 

of FLRA. I believe you would call that a real Washington, D.C., 

success story in many ways. 

Mr. James Thomas Abbott of Virginia earned his B.A. from Malone University of Canton, Ohio, in 1980 and his J.D. from Temple 

University in 1983. Mr. Abbott spent almost two decades working 

as an Army civilian as counsel who focused on labor, personnel, 

and ethics issues. During this time, he was awarded the Commander’s Award for Civilian Service, Department of the Army, in 

1996, and in 2002, he was awarded the Meritorious Civilian Service Award from the U.S. Defense Contract Management Agency. 

After a career with the Army, Mr. Abbott came to Capitol Hill 

and served as the Deputy General Counsel in the Congressional Office of Compliance. Since 2007, Mr. Abbott has served as the Chief 

Counsel to the Chairman of the Federal Labor Relations Authority. 

Thank you, by the way, for your service as well. 

Finally, the Honorable Ernest William DuBester, who currently 

serves as the Member of the FLRA. Mr. DuBester, welcome back. 

Glad to be able to see you again here. Certainly, you are familiar 

with this process, as the third time you have been nominated to be 

a Member of the FLRA. 

Mr. DuBester received his B.A. from Boston College in 1972, his 

law degree from Catholic University in 1975, and his master of law 

from Georgetown in 1980. Mr. DuBester has 40 years of experience 

in labor-management relations. He began his career at the National Labor Relations Board. He has been a counsel to the AFL– 

CIO and a professor at both Catholic University School of Law and 

the George Mason School of Law where he was named the Distinguished Professor of Law and Chair of the Dispute Resolution Program. Mr. DuBester has also been a mediator and Chairman of the 

National Mediation Board. Mr. DuBester was first appointed to be 

a Member of the FLRA by President Obama in 2009 and reappointed in 2013. 

Clearly, we have three very qualified nominees before us who are 

all experienced and have extensive previous experience at FLRA. 

Committee staff reached out to all these nominees and colleagues 

and affiliates who all spoke very highly of them. Committee staff 

also had the opportunity to interview all three nominees on an 

array of Federal labor relations issues. They thoughtfully and competently answered each question to the staff’s satisfaction. 

To date, the Committee has found you to be qualified for the positions you have been nominated. I look forward to speaking with 

you a bit more on your experience and accomplishments, how you 

intend to be able to bring those to be fair and impartial in your 

leadership in the FLRA. 

I now recognize Ranking Member Heitkamp for her opening 

statement. 

OPENING STATEMENT BY SENATOR HEITKAMP 

Senator HEITKAMP. Thank you, Chairman Lankford. I do not 

want to give an extensive opening statement. He took most of the 

material already, anyway. 

Senator LANKFORD. That is what Chairmen do. 

Senator HEITKAMP. Yes. Mr. Chairman did. 

Senator LANKFORD. That is what Chairmen do. 
3 

Senator HEITKAMP. Oh, that is what Chairmen do, I guess. 

But unlike the Chairman, I would like to welcome our Congressman from Wisconsin, Congressman Sensenbrenner. Thank you so 

much for coming, and thank you so much for being involved to the 

point where you will introduce one of our witnesses today. It is an 

honor, and it is also an honor to welcome a fellow North Dakotan 

to the table. 

That is how you say it, ‘‘North Dakotan.’’ 

Senator LANKFORD. That is how you say it. 

Senator HEITKAMP. Yes. 

But I will acknowledge that your father also had a very distinguished career in Federal service, and so you come from good stock 

and hardy stock since she comes from the very far reaches of our 

Northern Border, Pembina. I really appreciate all of your willingness to serve and look forward to your testimony. 

Thank you. 

Senator LANKFORD. Thank you. 

It is the custom of this Committee to swear in all witnesses that 

appear before us. If you do not mind, if the three nominees would 

please stand. Raise your right hand. Do you swear the testimony 

you will give before this Committee will be the truth, the whole 

truth, and nothing but the truth, so help you, God? 

Thank you. You may be seated. 

Let the record reflect all three answered in the affirmative. 

We are going to recognize our witnesses for their opening statements. We will begin with Ms. Kiko, who has a special guest introducing her. Is that correct? 

Jim Sensenbrenner, who is a friend and who has served faithfully in the U.S. Congress for a very long time, it is very good to 

be able to see you, to be able to do a formal introduction there. 

I recognize Congressman Sensenbrenner. 

TESTIMONY OF THE HONORABLE JIM SENSENBRENNER, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN 

Mr. SENSENBRENNER. Thank you very much, Chairman 

Lankford, Ranking Member Heitkamp, and Members of the Committee. 

I want to thank you for the opportunity to come before this Committee and endorse the qualifications of Ms. Colleen Duffy Kiko for 

the position of Chairman of the FLRA. She is a great friend and 

is superbly qualified for this position through her years of experience as well as her personal character. 

I have known Colleen Kiko for more than 35 years. In that time, 

I have seen her commitment to public service, dedication to the 

rule of law, and the devotion to her family. 

Colleen began her career as a newly hired attorney at the Department of Justice, where she worked in the Office of Legal Policy 

in the Civil Rights Division. She spent her time investigating and 

prosecuting housing and credit discrimination complaints. She also 

served as a detailee to the Eastern District of Virginia in prosecuting criminal cases. 

I hired Colleen as my committee counsel, where she worked on 

the successful impeachment of Judge Walter Nixon for which I 
4 

1The prepared statement of Ms. Kiko appears in the Appendix on page 24. 

served as one of the House Managers during the Senate trial. She 

served as the principal negotiator for both me and Judiciary Republicans on the Americans with Disability Act, one of the hallmark Civil Rights laws of our Nation. As my counsel, Colleen provided me with sound advice, and I trusted her judgment, discretion, and intuition. 

This is not the first time Colleen and I have sat in these seats. 

I introduced Colleen before this Committee when she was previously confirmed as General Counsel of the FLRA. During her tenure, she demonstrated her excellent legal skills, independent judgment, and commitment to the rule of law. With open lines of communication, she helped revamp the FLRA training programs and 

also prosecuted unfair labor practices while serving as a respectable negotiator. 

Finally, she serves as a judge on the Employees’ Compensation 

Appeals Board. During her time there, Ms. Kiko worked with her 

colleagues on the board to make appropriate determinations with 

respect to Federal employees injured during the course of their employment. Each of her experiences has helped prepare her as a 

nominee as chairman of the FLRA. She undoubtedly possesses the 

knowledge, temperament, and commitment required for this position. 

I am fortunate to be able to present such a qualified public servant with such a distinguished background who deserves swift confirmation by this Committee and the Senate as a whole, and I appreciate your courtesy. 

Senator LANKFORD. Congressman Sensenbrenner, thank you 

again for all your service over the years, and thank you for being 

here as well. 

For each of you, as we begin and as you begin your opening 

statement, I would ask you to also introduce family, guests, and 

friends that are here. We understand full well that this is not only 

bringing you into the Federal service in this role, but you bring 

friends and family in your community with you as well. Please recognize those folks as you go. 

Ms. Kiko, you will go first. 

TESTIMONY OF THE HONORABLE COLLEEN DUFFY KIKO1 TO 

BE A MEMBER, FEDERAL LABOR RELATIONS AUTHORITY 

Ms. KIKO. Thank you, Mr. Chairman, Ranking Member Senator 

Heitkamp, Members of the Committee. I would like to thank you 

and your staff for all the kindnesses that have been shown to me 

as I have prepared for this hearing. 

I also deeply appreciate Congressman Sensenbrenner for taking 

the time away from his very booked schedule to introduce me 

today. I respect his dedicated service to the U.S. House of Representatives and am deeply honored to call him a friend. 

I am here today with some of my family members who represent 

the others. Our son Philip Kiko Jr. and his wife, Molly, who are 

expecting our fifth grandchild; our son Michael Kiko; my sister, 

Tama; and of course, my best friend and husband, who currently 

serves as the Chief Administrative Officer of the House of Rep-
5 

resentatives, Phil Kiko. I appreciate their love and support and the 

love and support from those who have not been able to be here 

today. 

I would also like to thank Member DuBester and Nominee James 

Abbott for the welcoming attitude that they have shown me during 

this confirmation process. I look forward to working with both of 

them as we journey forward, should I be confirmed. 

I would also like to personally thank Pat Pizzella, Acting Chairman; Fred Jacob, Solicitor; and Gina Grippando, Counsel for Regulatory and Public Affairs at the FLRA, for helping me get to this 

point in the confirmation process. 

It is indeed an honor to have been nominated to serve as a Member of the Federal Labor Relations Authority and, if confirmed, to 

be designated as Chairman of that agency. 

My first job was a GS–3 clerk typist in the Department of Treasury, Office of Personnel. My father, Lawrence Duffy, proudly spent 

over 49 years, almost a half a century, in the Federal service before 

he retired. He was a railway mail carrier for the U.S. Postal Service (USPS) and later became a customs inspector at the North Dakota-Canadian border. He always considered Federal service to be 

an honorable profession. His work ethic, extreme pride in his job, 

and impeccable character were examples for me, and I hope I live 

up to his standards. 

My mother, Angie Duffy, was also an example to me as someone 

who always wanted to learn new things, have different and varied 

experiences—she began oil painting in her 50s—and to broaden her 

horizons. In her quiet, loving way, she pushed all four of her children to be strong and independent. 

Congressman Sensenbrenner and, of course, Chairman Lankford 

have spoken about my background, but I would like to point out 

a few areas of my career that I believe affirmatively qualify me for 

this position. 

Before the agency became an agency, I was working in a part of 

the Department of Labor that was transferred into this new agency 

in 1979. I was there when it opened its doors, and I was there celebrating with a cake on its first birthday. It was a very important 

part of shaping me as a professional employee, and it was and continues to be a very great place to work. 

I have worked in almost every component of the agency. In the 

regional office, I investigated unfair labor practices, chaired hearings on representational disputes, monitored Federal union elections, and conducted training for both agencies and unions. At the 

Authority level, I reviewed representational disputes, administrative law judge (ALJ) decisions, and drafted decisions for Authority 

members. My last position was a supervisory labor relations specialist handling procedural motions before I decided to attend law 

school. 

I graduated from George Mason University, now Antonin Scalia 

Law School, in 1986, and just 19 years later, I would find myself 

back at the FLRA serving as the Senate-confirmed position of General Counsel in 2005. And now, another 12 years later, I have 

again been nominated to serve as a Member of the agency. My career keeps taking me back to my roots. 
6 

1The prepared statement of Mr. DuBester appears in the Appendix on page 72. 

In my current position as a judge of the Employees’ Compensation Appeals Board (ECAB), where I have served for 12 years and 

rendered over 10,000 decisions, I have polished the attributes necessary to render decisions in an impartial manner, such as reviewing the facts presented, considering arguments provided by the parties, and applying the existing law to the particular facts of the 

case. 

I also have experience in management. While serving as General 

Counsel, I was responsible for managing the seven regions of the 

FLRA, which would include budgeting and performance management, leading change, policy development, staff and customer 

training, in addition to the mission requirements of the office. 

Further, as part of the management team under a former Chairman of ECAB, we managed a staff at that time of approximately 

50 employees, which included updating performance standards, initiating programs to increase the quality, quantity, and timeliness 

of the work, and developed an updated case tracking system, to 

name a few. I believe this experience has prepared me while to 

serve as a leader in the FLRA. 

I believe my 29 years of service in the Federal Government 

should serve me well in this agency, where we are commissioned 

to provide leadership and establish policy and guidance relating to 

matters under the Federal Service Labor-Management Relations 

Statute, and to effectively administer the nine specific mandates of 

this statute. 

I greatly appreciate the opportunity to appear before you and am 

willing to answer any questions. 

Senator LANKFORD. Thank you. Mr. DuBester. 

TESTIMONY OF THE HONORABLE ERNEST W. DUBESTER1 TO 

BE A MEMBER, FEDERAL LABOR RELATIONS AUTHORITY 

Mr. DUBESTER. Thank you, Chairman Lankford, Senator 

Heitkamp, Senator McCaskill, and Senator Peters. I greatly appreciate the opportunity to come before this Committee again for its 

consideration of my nomination to be a Member of the Federal 

Labor Relations Authority. 

I also would like to thank the Committee’s staff for their hard 

work and assistance in reviewing my nomination and scheduling 

this hearing. 

Before making a brief opening statement, I would like to introduce my wife, Karen Kremer, who is sitting in the first row behind 

me. In a few months, we will celebrate our 30th Anniversary. 

When I first met Karen, she was working for Senator Howell Heflin on the Senate Judiciary Committee. So the Senate will always 

hold a special, personal meaning in my life. 

I also want to recognize the presence here this morning of quite 

a few people from the FLRA, including my personal staff. These 

dedicated public servants, as well as many FLRA staff who are not 

present, are the key to the FLRA’s many successes in recent years. 

I am also pleased to appear here today with Colleen and James 

who, hopefully, if confirmed by the Senate, will be my colleagues. 
7 

1The prepared statement of Mr. Abbott appears in the Appendix on page 126. 

Mr. Chairman, as you mentioned, this is the fifth time I have 

had the privilege to come before the Senate after being nominated 

by a President for a position of public trust. During the 1990s, I 

was nominated twice to serve as Chairman and Member the National Mediation Board, another independent agency. This is the 

third time that I have had the honor to come before this Committee 

after being re-nominated by President Trump to continue serving 

as a Member of the FLRA. I have now served as a Member for over 

8 years. 

The last 8 years reflect many accomplishments at the FLRA. Exercising our statutory responsibility to provide leadership in labormanagement relations, we have engaged in a variety of outreach, 

facilitation, and training activities, which include the delivery of a 

variety of training sessions to tens of thousands of labor and management representatives in the Federal community, and during 

this period, we have also made timely issuance of decisions a major 

priority. 

In addition, with an agency focus on human capital initiatives, 

such as training and development, performance management, and 

work-life balance, employee morale has improved dramatically. For 

the last 2 years, we have ranked in the top five overall in the Partnership for Public Service (PPS) rankings for ‘‘Best Places to Work 

in the Federal Government,’’ and in 2015 and 2016, we received 

No. 1 rankings in the specific categories of teamwork and effective 

leadership. 

Mr. Chairman, as you mentioned, I am not a kid anymore, with 

over 40 years of experience in labor-management relations, working as a public servant, as an advocate, a mediator, an arbitrator, 

and an academic, over 25 of those years are in the Federal sector. 

I remain strongly committed to the FLRA’s mission and to the importance of stable, constructive labor-management relations in the 

Federal sector, and if re-confirmed, I will continue to work tirelessly so that the FLRA is recognized by the Federal sector’s labormanagement community as one of the most effective and efficient 

agencies in the Federal Government. 

Again, I appreciate the opportunity to appear before you, and I 

am pleased to answer any questions that you have. 

Senator LANKFORD. Thank you, Mr. DuBester. Mr. Abbott. 

TESTIMONY OF JAMES T. ABBOTT1 TO BE A MEMBER, 

FEDERAL LABOR RELATIONS AUTHORITY 

Mr. ABBOTT. Good morning. Mr. Chairman, Ranking Member 

McCaskill, Senator Heitkamp, and Members of the Committee, I 

want to thank you for conducting this hearing at a time when so 

many other pressing issues are competing for your time and attention. I would also like to thank your Committee staff for the outstanding support which they provided to me as I prepared for this 

hearing. I appreciate your warm reception. 

I am honored and humbled to have been nominated by President 

Trump to become a Member of the Federal Labor Relations Authority. If confirmed, it will be, for me, the highest privilege of my professional life. 
8 

With me today are my husband of 21 years, Daniel Gri, and our 

sons, Caleb and Alfred, who are the pride of my life. That Daniel 

is able to join me today is nothing short of a miracle. Just 4 months 

ago, he was on life support following a serious automobile accident. 

This is his first public outing since that accident and is testament 

to his indomitable spirit. I rely upon that spirit every day. 

My sister and brother-in-law, Linda and Don Walde, and my 

niece, Heather Legore, as well as my cousin, Gayle Abbott, and her 

daughter, Elizabeth, are here as well. 

My professional career has spanned 34 years, 33 devoted to public service. I learned about service and hard work from my parents 

and grandparents. Grandfather Whipple worked as a farmhand in 

Kansas in the 1910s until he saved enough money to buy his own 

land. His farm survived the Great Depression through his hard 

work and determination. 

Grandfather Abbott singlehandedly operated a grist mill in 

Painesville, Ohio. He hired helpers only when, in his words, ‘‘I 

could pay a fair wage for a fair day of work.’’ 

My mother, a nurse, and my father, a minister, served as missionaries in Congo where they built churches to serve not just as 

centers of worship but also to serve as local medical clinics and 

schools. 

But for me, the ultimate example of public service was my brother, Denis Abbott, who gave his life in service to his country in 

Pleiku, Vietnam. 

Before joining the FLRA as Chief Counsel, I sat at dozens of bargaining tables negotiating local and nationwide collective-bargaining agreements. Through those experiences, I learned firsthand 

how differences can be constructively resolved but also how they 

can end up in dispute. I have witnessed the dynamics of labor relations at work between first-line supervisors and hardworking union 

stewards in a variety of settings, such as work floors where artillery equipment and attack helicopters are serviced and repaired. 

I have met with employees and union stewards at sites where 

the working conditions were difficult, even dangerous. I have had 

to tell first-line supervisors and generals that they were wrong and 

what they must do to comply with the statute. Therefore, I understand why the protections of our statute are so important to Federal employees. 

I believe that we can all agree that the Federal workforce in 

2017 looks very different than it did in 1978 when our statute was 

enacted. In this changed environment, the Authority must clearly 

define what matters affect working conditions and those which constitute negotiable conditions of employment. To that end, I pledge 

that if I am confirmed, I will adjudicate all matters fairly and impartially, enforce the statute as it is written, but above all respect 

judicial precedent. 

I look forward to working with my colleagues to ensure that the 

FLRA remains relevant and to drafting decisions that can be understood by laypersons as well as attorneys. 

It is my privilege to appear before you today, and as my colleagues, I am happy to answer any questions. 

Thank you. 

Senator LANKFORD. Thank you, Mr. Abbott. 
9 

I am going to ask three mandatory questions of all three of you, 

and then I am going to defer to Ranking Member Heitkamp. She 

has another hearing that is happening simultaneous to this. I want 

to make sure that we get to her questions immediately. 

The three questions I am going to ask of all three of you—and 

I will need a verbal response—and I will just kind of come down 

the road, starting with Mr. DuBester, Ms. Kiko, and Mr. Abbott. 

Is there anything that you are aware of in your background that 

might present a conflict of interest with the duties of your office to 

which you have been nominated? Mr. Dubester. 

Mr. DUBESTER. No. 

Senator LANKFORD. Ms. Kiko. 

Ms. KIKO. No, sir. 

Senator LANKFORD. Mr. Abbott. 

Mr. ABBOTT. No, sir. 

Senator LANKFORD. Second question. Do you know of anything, 

personal or otherwise, that would in any way prevent you from 

fully and honorable discharging the responsibility of the office of 

which you have been nominated? Mr. DuBester. 

Mr. DUBESTER. No, Mr. Chairman. 

Senator LANKFORD. Ms. Kiko. 

Ms. KIKO. No, sir. 

Senator LANKFORD. Mr. Abbott. 

Mr. ABBOTT. No, sir. 

Senator LANKFORD. Third question. Do you agree, without reservation, to comply with any request or summons to appear and 

testify before any duly constituted committee of Congress if you are 

confirmed? Mr. DuBester. 

Mr. DUBESTER. I do. 

Senator LANKFORD. Ms. Kiko. 

Ms. KIKO. I do. 

Senator LANKFORD. Mr. Abbott. 

Mr. ABBOTT. Yes, I will. 

Senator LANKFORD. I recognize Ranking Member Heitkamp. 

Senator HEITKAMP. Thank you so much, Mr. Chairman. 

These are incredible years of service to this organization and to 

this agency sitting before us, and I cannot imagine a panel more 

qualified to do this work. But you also have the wisdom of time. 

You have had a chance to see this agency grow and change. 

The question that I have is, What do you believe today is a challenge that will come to you that you did not anticipate all those 

very many years that you have been serving and been associated? 

We will start with Mr. DuBester. 

Mr. DUBESTER. Well, the world, of course, is always rapidly 

changing, and that certainly applies to the field of labor-management relations. 

I think that probably one of the changes that is a fairly recent 

change that will remain a challenge in the years ahead is the approach our agency brings to the resolution of disputes. On the one 

hand, of course, we have a very direct statutory responsibility for 

resolving particular cases, and that remains fairly constant over 

time. But we also have responsibility under our statute that was 

referred to earlier to provide leadership and guidance to help agen-
10 

cies throughout the Federal Government develop successful labormanagement relations programs. 

I think among other things, the kind of outreach that we have 

done over the last few years in terms of training them and developing their skills and abilities to improve their own relationships, 

so agency representatives and labor representatives can learn how 

to resolve more of their disputes, even voluntarily, so that a lot of 

the disputes that come to us now will not necessarily come to us 

anymore. Day in and day out throughout the Federal Government, 

it is those agency reps and those labor reps who have to work together, who have to address the problems that are unique to their 

agency. By giving them the problem-solving skills, learning how to 

treat with certain situations through the use of alternative dispute 

resolution services, I think is and has been a recent challenge but 

will remain a challenge in the future, in my view. 

Senator HEITKAMP. Thank you. Ms. Kiko. 

Ms. KIKO. Thank you, Senator Heitkamp. 

I would say that the immediate challenge is, not disagreeing at 

all with Mr. DuBester, I would certainly agree with those, but I 

would also say that cybersecurity is an issue that is facing all the 

agencies right now. I would take that as a very serious concern for 

every agency. 

But also, I believe that the backlog that is sitting there at the 

moment, we would like to get those moved. 

Senator HEITKAMP. How does that compare to your recollection 

back when you were previously with the agency? 

Ms. KIKO. When I was with the General Counsel, there was a 

backlog waiting for me when I got there, and I am sure there is 

a backlog waiting for a full complement of the Authority when we 

get there, so—— 

Senator HEITKAMP. Is it worse today than it was 10 years ago? 

Ms. KIKO. Right now, there is a General Counsel. When I came 

in as the General Counsel, there had not been a General Counsel 

for several months, and so there had been an inability to file any 

kind of unfair labor practice complaints or issue decisions on appeals. Those decisions were waiting for me to be issued. 

At the current moment, we have a General Counsel. So from that 

perspective, I do not think there is anything waiting there to be decided. 

On the Authority side, I do not have anything to compare it to 

since I was not on the Authority side. 

Senator HEITKAMP. We always say justice delayed is justice denied, and I agree that that we need to make decisions in a timely 

fashion. Mr. Abbott. 

Mr. ABBOTT. Well, Senator, just as when Congress enacted our 

statute in 1978 and the original Members of the Authority, when 

the statute was created, just as they could not have anticipated a 

workforce that had computers at every desk, the availability of 

email, and the ability of enemies of the country to have access to 

our security and cyber systems and to wipe out swaths of information in a moment, I think we cannot, sitting here, anticipate all of 

the changes that will be coming during our terms. I believe that 

requires that the Authority be certain to maintain its relevancy to 

the labor-management community by looking at our statute and 
11 

being clear in our decisions to give a road map to our customers, 

which is the labor relations community. 

Senator HEITKAMP. In response to a question regarding political 

difficult choices in your policy questionnaire, each of you stated you 

do not make political choices, which I think is great, but could you 

describe a time when you made a difficult or unpopular decision or 

choice that you thought was in the best interest of the country or 

your agency? Probably just give me one of the most difficult decisions that you have had to make. Mr. DuBester. 

Mr. DUBESTER. Senator Heitkamp, I think as I mentioned in my 

questionnaire, I probably refer back to my service as Chairman of 

the National Mediation Board. That agency has jurisdiction in the 

transportation sector over airlines and railroads. Not all, but many 

of the disputes that arise are high-profile disputes, often with a national impact. Given the nature of that statute, it also allows for 

the intervention of the White House, if you will, the President, to 

take certain actions that will have a bearing on the dispute. 

It was my responsibility, of course, to make recommendations to 

the White House, and I had to bring my sense of the situation as 

well as my experience in labor-management relations to bear and 

often—sensitivities, if you will, of a political nature. My decisions 

were not political, but I was serving a White House, and obviously, 

all of you as public servants and elected officials understand considerations of your constituencies. 

I think those were challenging situations, where I often knew 

they were tough decisions and I had to give the best decision I 

could. 

Senator HEITKAMP. Ms. Kiko. 

Ms. KIKO. Well, I have certainly made difficult decisions in my 

life. Probably the most difficult decision that I ever made was when 

I chose to stay home and quit my career and stay home with my 

four children and raise them. I do believe I think that might have 

been of service to this country, I am hoping. [Laughter.] 

Senator HEITKAMP. Thank you. Mr. Abbott. 

Mr. ABBOTT. Yes. One of the most difficult decisions that I had 

to make as a Federal manager was in January of this year when 

Acting Chairman Pizzella transitioned to our new Acting Chairman. We had to assess the needs of the agency that were the resources that we had. 

We had an office, by way of example, that had increased its staffing by 200 percent in a matter of 1 year with the plan and hope 

that the new program developed would create workload. That 

workload did not develop, and there was a decrease in caseload. 

The Acting Chairman and myself, we had to make the difficult 

choice in recognizing that the Office of General Counsel (OGC) did 

not have resources, and as difficult as it always is to change priorities such as that, we had to make that difficult decision for the 

good of the agency and so the labor-management community, would 

be served in processing unfair labor practices. 

Senator HEITKAMP. Thank you so much. 

Senator LANKFORD. I would like to recognize the Ranking Member of the full Committee, Claire McCaskill. 
12 

OPENING STATEMENT OF SENATOR MCCASKILL 

Senator MCCASKILL. Thank you very much. 

I just have a simple question for the three of you, and it probably 

will not take you long to answer, at least I hope not. I would ask 

each of you to respond to this question. Do you fully support the 

right of government employees to organize and bargain collectively? 

Ms. KIKO. I can answer that absolutely, positively. I am there to 

provide leadership and establish guidance under the Federal Service Labor-Management Relations Statute and effectively administering all of these mandatory mandates under the statute, and I 

absolutely would agree with that. 

Senator MCCASKILL. Mr. Abbott. 

Mr. ABBOTT. I do as well. I believe that our statute serves a very 

important part of the construct of Title 5 and Title 7 to provide an 

avenue of recourse for employees who are aggrieved, and I have 

witnessed and seen myself how constructive positive labor-management relations are. 

Yes, I believe that the statute, as written, establishing collective 

bargaining is a positive force in the Federal Government. 

Senator MCCASKILL. You would support it even if the statute 

were not there. Your support is because you believe in the concept, 

not because you are following the statute? 

Mr. ABBOTT. I believe in the concept and the statute. Yes, ma’am. 

Senator MCCASKILL. OK. I know you have to follow the law. I am 

not asking about whether or not—I am asking whether you agree 

with the law that that should be something that is allowed in the 

United States of America for government employees to organize 

and collectively bargain. 

Mr. ABBOTT. Without a doubt. 

Senator MCCASKILL. OK. 

I probably know your answer, Mr. DuBester. 

Mr. DUBESTER. The answer is yes, Senator. I very strongly believe in the institution of collective bargaining. And beyond that, I 

often say one reason is because I am a great believer in mechanisms that afford the opportunity for interaction and dialogue between employer representatives and their employees through exclusive representatives. I think that is the best way to address problems in any workplace, in any jurisdiction, whether it is the private 

sector, the public sector, or the Federal sector. 

But beyond that, of course, I saw that Ms. Kiko was holding up 

our statute, and while I know you were not asking for a statutory 

commitment, but in the very first section of the statute, Findings 

and Purpose, it talks about collective bargaining and the findings 

of Congress that it is in the public interest. I believe in the statute 

and the agency’s mission. 

Senator MCCASKILL. Thank you. 

Thank you, Mr. Chairman. 

Senator LANKFORD. Senator Hassan. 
13 

OPENING STATEMENT OF SENATOR HASSAN 

Senator HASSAN. Thank you very much, Mr. Chairman, and good 

morning to you all. Congratulations on your nominations and being 

here. 

I wanted to follow up a little bit. I had a similar question to Senator McCaskill, and I thank you for your answers to that. 

I also come from an employment law background. I represented 

management for years, and I, too, believed that collective bargaining has proved to be not only an excellent mechanism for workers to protect themselves and each other and have the benefit of 

concerted action, but also it has been a very good tool for communication between labor and management and resolving issues. 

Toward that end—and this is for each of you—do you all believe, 

as I do, that official time can be used to resolve important matters 

and, in turn, save time and resources? 

We will start with you, Mr. Abbott. 

Mr. ABBOTT. Official time is defined by our statute, and it provides that reasonable official time is what is agreed to by management and the union together. 

I believe that official time is a necessary part of most of the areas 

that are covered by our statute particularly in the traditional labor 

relations setting where the management and the union are sitting 

down at the bargaining table negotiating a contract. 

Beyond that, I do believe it is for Congress to make that decision. 

Senator HASSAN. I thank you for that answer. I think one of our 

concerns is that if you believe in collective bargaining, then if you 

do not have the mechanism of official time, you are really making 

it very difficult for workers to enjoy the benefit of collective bargaining because they do not have anybody who is in the position 

to really work with the management side in an effective way. I 

would ask you to think about that. 

Is it Kiko—‘‘Kiko.’’ Yes. Thank you. 

Ms. KIKO. Good morning, Senator. 

Senator HASSAN. Good morning. 

Ms. KIKO. As Mr. Abbott has explained, the statute does require 

that there is official time for collective bargaining negotiations and 

also for presenting before the Authority, and all other official time 

is to be negotiated between the agency and the union. I certainly 

would support that that it is a very a specific part and an important part of the collective bargaining experience. 

Yes, I do believe in the collective bargaining experience, if I suggested differently in my earlier answer. 

Senator HASSAN. Thank you very much. 

Mr. DuBester. 

Mr. DUBESTER. Well, Senator, I think the answer to your question very much relates to the question of Senator McCaskill about 

your commitment to collective bargaining. 

I have heard a lot of questions raised about official time over the 

last few years within the halls of Congress, and in my view, among 

other things, often the discussions are taken out of context because 

under our Federal statute at least, we have a carefully crafted statute which, of course, Congress always reserves the right to consider 

and perhaps amend. But it is a carefully crafted statute, which has 

a lot of different dimensions to it, including a very explicit statu-
14 

tory management rights provision, obviously the concept of no use 

of economic weapons, in the employees’ case, the right to strike. 

But it does have the—and in the union’s instance, no right to support itself through union security as unions do in other sectors. 

Again, my view on official time, beyond what is already contained in the statute, is if you believe in the institution of collective 

bargaining—and as I said in my prior answer, I believe in it among 

other things because I believe in any mechanism that affords or 

promotes the ability for employer reps—in our case, agency reps— 

and employee reps—in this case, exclusive representatives, their 

unions—to sit down and talk, to engage in dialogue, hopefully to 

problem solve. 

Senator HASSAN. Yes. 

Mr. DUBESTER. The application of official time were to exist in 

the Federal sector to me is not just a matter which I think is often, 

in my view, mischaracterized, as for the union, it is in the agency 

and employer’s interest as well when used appropriately because it 

affords that kind of a mechanism that promotes dialogue and communication. 

Senator HASSAN. Thank you, and I thank you all for your answers. 

One of the privileges of being from New Hampshire is that I 

have the good fortune of representing the men and women at the 

Portsmouth Naval Shipyard, who have a terrific labor-management 

model going, and I would recommend it to you. They work together 

incredibly well in part because there is a strong acknowledgement 

of the value of collective bargaining and official time. 

With that, thank you very much again for your willingness to 

serve, and I yield the remainder of my time, Mr. Chair. 

Senator LANKFORD. Thank you, Senator. 

Ms. Kiko, you have seen a lot change over the years since the 

birth of the agency and the first birthday and the cake to now. I 

have an odd question for you: What has changed in the operation 

of the agency over that time period, and how did it change? Was 

it statutory? Is it drift? Are we still on mission? Are we getting better at what we are doing? I am looking for somewhat of a historical 

look. 

Mr. DuBester, I am going to come right back to you on this as 

well. 

Give me a feel for what you have seen, and are we still on track? 

Ms. KIKO. Thank you, Senator. 

I think the biggest change in the FLRA since I was there is the 

technology change. We were writing decisions on yellow legal pads 

and handing them off to a clerk typist to type in a big, giant Wang 

that was about the size of this table. That has changed, where everyone clearly has all of their technology in their pockets anymore. 

So that has changed. 

The mission of the agency has not changed. The direction of the 

agency has not changed. We are still doing the best to manage the 

cooperation of labor-management relations in the Federal Government, and I think that continues to be our mission. 

That would be it. If you have any further questions. Yes. 

Senator LANKFORD. Mr. DuBester. 
15 

Mr. DUBESTER. Well, I certainly agree with Ms. Kiko that the 

rapid changes in technology cannot be ignored, and among other 

things, like many agencies, we have gotten in recent years—in 

terms of providing better customer service gotten into e-filing, if 

you will, which facilitates the parties’ abilities to process cases with 

us. 

Again, I think beyond just the specific case responsibilities we 

have, certainly over time, we have developed as an agency like ours 

is designed to do, with certain expertise in the specific areas of case 

handling that certainly evolves over time, and I think it is helpful 

to the labor-management community. 

As I said before, we are a small agency but with a large mission 

because we are not just the FLRA, which is a rather small, modest 

agency, but we have a responsibility for the labor-management relations programs throughout the Federal Government. 

If we are doing effective outreach activities, which in recent 

years we have trained tens of thousands of agency reps and union 

reps in a variety of activities that are designed to help them do 

their jobs better. We are helping if you will, labor-management relations through the Federal Government. I think that perspective 

and appreciation about just how large the impact can be on our 

mission is—— 

Senator LANKFORD. Well, that is part of my question, actually. 

Are we still on track with the mission, or is the mission continuing 

to be able to grow and the task beginning to grow? When it is one 

thing to be able to make decisions, the other thing to think we 

have expertise, how do we actually proactively get this out to agencies? 

When we talk about things like guidance, for instance, getting 

help to entities, somewhat that has been the role of Office of Personnel Management (OPM) to be able to do. Are we drifting into 

the role of someone else, or are we providing advice to them, or are 

we finding instructions to them? Where do you draw that line? 

Mr. DUBESTER. In the areas that fall within, again, specifically 

labor-management relations, in the areas mentioned in our statute, 

then I think, at least in recent years, we have been on the mark 

and hopefully will continue to be on the mark by doing a variety 

of things; first, providing information, making available information on our website in the areas that our parties have to handle, 

like in arbitration cases, negotiability cases, basic statutory rights. 

We have been actually doing training with our parties in those 

areas, that kind of outreach. 

As I mentioned, I believe, consistent with our statutory responsibility to provide leadership and guidance—and when we are talking about labor-management relations, as I often say, the word 

that is often overlooked in that phrase is the word ‘‘relations.’’ 

Senator LANKFORD. Right. 

Mr. DUBESTER. Providing training in problem solving and relationship building is very much part of the statute and—— 

Senator LANKFORD. Sure. 

Mr. DUBESTER [continuing]. Part of the service that we can provide to them. 

Senator LANKFORD. I think what I am trying to get the boundary 

here is between OPM and their statutory responsibility and the re-
16 

sponsibility of your agency as well, to be able to say where do you 

draw the line in things like guidance, between what is helping and 

providing resources or what is instructing. 

Mr. DUBESTER. Again, this is not a pure answer, but to me, 

OPM, of course, provides information, which to my way of thinking 

involve the employment relationship and personnel kinds of matters that would apply to any employee in the Federal Government, 

whereas we have a specific mission involving labor-management relations, which is something that OPM would not get into, if you 

will, elsewhere in the Federal Government, per se. That is where 

I think the line pretty much is. It is kind of uniform personnel matters that apply throughout the Federal Government. We would not 

be providing guidance in that area, I do not think, not appropriately, and I know during my tenure, we certainly have not. 

We have complied with OPM directives for our employees, but in 

the labor-management arena, that is where I think we have an obligation to provide information. 

Senator LANKFORD. Same question for Mr. Abbott. Where do you 

draw that line on what is the difference between guidance and instructions or actually telling someone what to do, or how do you 

draw that line in the relationship with different agencies? 

Mr. ABBOTT. Thank you, Senator. 

Yes, I think the Authority has been very effective over the years 

of its existence when the Authority does what it was created to do, 

and that is to determine matters under our statute. 

In respect to training and outreach, I believe that when the Authority is doing what is basically required under our statute—and 

that is to provide statutory training and how our statute works and 

explaining Authority precedent—I think we have been very effective. 

When we engage in training on basic interest-based bargaining 

and problem solving, we are being very effective. 

However, I am concerned that when our training outreach goes 

into areas such as relationship repair, dealing with difficult people, 

decisionmaking and communication skills, I am not sure that we 

are the best agency or the best provider of that. There are many 

qualified, trained individuals in the private sector to provide that. 

I think when we go astray of the statutory limits is the time 

when we are not being effective. I think that we lose an ability— 

I think the best training that the Authority can give to the labormanagement community is when we write decisions that are clear 

and understandable to laypersons as well as attorneys, and I think 

that the Authority does best when it answers the questions that 

the parties bring to it. 

But over the last 2 years, 52 percent of the decisions of the Authority have dismissed cases Either in part or in whole on procedural technicalities. Every time we dismiss an argument on a technicality, we are not providing guidance to our customers who have 

had a dispute, an honest dispute, and they are looking to us for an 

answer. 

Senator LANKFORD. Yes. That should be helpful. 

Mr. DuBester, I do want to clarify one issue as well. There was 

a difference of opinion between you and the Appeals Court on the 

Inspectors General and whether the interviews of the Inspector 
17 

General can fall under collective bargaining and negotiations as 

well. Obviously, that decision was done in 2012, then was later 

overturned on it. Where are you on that now and your perspective 

on the relationship between interviews from the Inspectors General 

and collective bargaining negotiation? 

Mr. DUBESTER. I do not have a detailed specific recollection of 

the case you are talking about, but I am aware, I think, of what 

you are referring to. 

In that particular situation, of course—— 

Senator LANKFORD. It has been a few years, so I would give you 

some mercy on that one as well. So yes. 

Mr. DUBESTER. The majority decision was overturned by the—I 

believe the D.C. Circuit, and of course, in that particular instance, 

the D.C. Circuit ruling becomes the law of the case. It was remanded to us, and of course, that was implemented, and that has 

now become the law. 

These kinds of situations are not necessarily uniform. Number 

one, they are going to be driven and determined by perhaps unique 

facts that may arise, and moreover, while the D.C. Circuit—because we are the seat of the Federal Government and that is our 

jurisdiction, probably matters that are appealed to the circuit 

courts go to the D.C. Circuit more often than not. But the parties 

have a right to go to any circuit. 

Right now, what I would say is the matter that you referred to 

became the law of the case in that instance based on the D.C. Circuit ruling, but I am not sure that it is necessarily the law either 

within the FLRA, depending on what might come back to us in 

terms of the facts, or what other circuit courts might say about the 

case. 

Senator LANKFORD. In that case, you would not considered that 

settled? 

Mr. DUBESTER. Again, I do not want to make a judgment without seeing the particular facts, but I think in the spirit of what you 

are asking, I would say that is right in my mind. Yes, Senator. 

Senator LANKFORD. What was right in your mind? 

Mr. DUBESTER. It is not settled. 

Senator LANKFORD. It is not settled? 

Mr. DUBESTER. No. 

Senator LANKFORD. OK. Senator Harris. 

OPENING STATEMENT OF SENATOR HARRIS 

Senator HARRIS. This question is for Ms. Kiko. 

The FLRA is an important mechanism, obviously, for more than 

a million Federal employees, and it has a history, unfortunately, 

however, of backlogs, including a backlog of nearly 400 cases in 

2009. Are you familiar with that? 

Ms. KIKO. I am not familiar with the backlog in 2009. 

Senator HARRIS. Are you aware of the backlog as it currently exists? 

Ms. KIKO. I am aware that there is a backlog with some cases 

waiting to be decided because at this point there is not a full membership of the Authority, and so I would say that that is a backlog 

sitting there for those decisions. Several of the decisions with just 
18 

the two members have been going out, though, in addition to the 

ones that are pending. 

Senator HARRIS. If confirmed, what would your plan be for addressing the backlog and eliminating it? 

Ms. KIKO. Well, I think my purpose there is to efficiently and effectively promote the statute, and one of the major jobs is to decide 

the cases that are before us. I would think of that as a very high 

priority to get the cases out that are before us. 

Senator HARRIS. Have you had any conversations with anyone 

there about what is going to be most efficient in terms of moving 

the cases along? 

Ms. KIKO. I have had discussions with both Member DuBester 

and Mr. Abbott on what the situation is at the agency and how the 

cases are processes, and I would like to work with both of them as 

we move forward to find out the best way to move the cases and 

so that we have a good, effective way to get them out efficiently. 

We have shareholders, I believe, that are looking for us to spend 

the money wisely that has been appropriated to us, and one of our 

jobs is to issue those decisions. I would think of that as a very high 

priority. 

Senator HARRIS. Thank you. Mr. Abbott. 

Mr. ABBOTT. I think the most effective way to deal with the backlog that we have when we have not had a full complement is simply we have established internal guidelines for moving cases forward. Upon the three of us being confirmed, we will need to establish and see if those timelines and internal processes are effective. 

I would say in my experience, there is no right or wrong way of 

addressing the matters, but I believe it does require each of us to 

address as expeditiously as possible holding our own staffs accountable for performance and effective service. 

Senator HARRIS. Thank you. 

I yield back my time. 

Thank you. Thank you both. 

Senator LANKFORD. Senator Heitkamp. 

Senator HEITKAMP. Thank you for that line of questioning. I 

think, again, in our oversight capacity, we are going to be very concerned about cleaning out the backlog and making sure, and if you 

do not have the resources, we need to know that because it is only 

going to get worse if systemic changes are not made. 

Ms. Kiko, in your questionnaire, you talked about your leadership style and how you like to energize and motivate people. One 

thing that will be inevitable in your position as Chairman, if confirmed, is you are leading an organization through periods of disagreement. The three of you will not always see things the same 

way, and it is important that the Chairman have the ability to lead 

and manage the organization through that disagreement. 

How would you change your leadership and management style 

when it comes to leading the Authority through periods of disagreement and challenges? 

Ms. KIKO. Thank you, Senator, for that question. 

I do not know that I would change my management style necessarily. I do believe that my management style is very collegial, 

and I would want to work with both Mr. DuBester and Mr. Abbott 

in trying very hard to find the best way to lead this organization. 
19 

Open communication is one of my primary requirements on a 

management style. I would want to hear what people have to say, 

find out the best way to lead this agency, but to me, open communication is the key to all of that. I believe that working together 

with Mr. Abbott and Mr. DuBester is the best way to find the best 

solutions—by working together and hearing different ideas, if that 

answers your question. 

Senator HEITKAMP. I think it does. I think one of the great challenges that you might have is trying to figure out how you are 

going to work through this backlog and how you are going to challenge an entire organization to make decisions in a way that is 

very attentive to the facts and not shortchanging anything but also 

clearing this docket because those challenges will continue, and it 

will get bigger and bigger. The problem will be bigger, and it is 

going to take a lot of communication, and it is going to take a lot 

of leadership. 

As I said in my opening statement, you are three incredibly 

qualified candidates, but you are coming in at a time when we need 

to know that it is not business as usual, that things will get done 

in a timely fashion. 

Thank you for that answer, and good luck to all over you. 

Ms. KIKO. Thank you, Senator. 

Senator LANKFORD. Thank you. 

Any final comments from anyone? 

[No response.] 

I see an overwhelming shaking of the heads here. 

Senator HEITKAMP. Quit while you are ahead. 

Senator LANKFORD. Yes. I can see that as well. 

I do want to be able to say to all of our witnesses, there is an 

expectation here that the backlog will be taken care of, individuals 

will be heard, that we are working, as Mr. DuBester said—working 

on the relations side of things. That the focus continues to be a 

healthy working environment not only in that entity, but in the entities where we get a chance to serve across the Federal Government. 

You have an incredibly important role that hardly anyone knows 

exists, unless you are in conflict, and then everyone is looking for 

you. We do count on you to be able to help on those very difficult 

days. 

Mr. DuBester, at some point, you and I can visit at greater 

length on this other case with the Inspectors General. The one 

thing that I would say on it is, there is a great challenge of opinion 

at times that once it goes up to an appeals course, does that resolve 

the issue, or does that not resolve the issue? I would only say if 

it goes up to an appeals court, we are under that until the Supreme 

Court says something different. But in the meantime, we are under 

that court. 

There have been plenty of appeals court decisions across the 

country that I have not liked, but we live as a nation under law, 

and that is the way we balance that out. When the facts may 

change or circumstances may come up differently on that, we can 

push back and forth on it. That is the fun of our system on it, but 

I would encourage us to be able to do that. 
20 

1The information of Ms. Kiko appears in the Appendix on page 29. 

2The information of Mr. Dubester appears in the Appendix on page 77. 

3The information of Mr. Abbott appears in the Appendix on page 131. 

I would assume you are in that same boat, but based on your 

previous answer, I was trying to think through the possibilities of 

what that would mean to have a situation where someone in that 

position would say an appeals court has spoken on it, but I am not 

sure I like it. We are all going to try to apply it as well. 

I will give you an opportunity to be able to say anything, if you 

want to, on that as well. I am not trying to shut you out. 

Mr. DUBESTER. I certainly agree with your representation about 

the importance of precedent and stare decisis and the rule of law, 

and as I mentioned, without any question, in that particular case 

that you asked about, that became—— 

Senator LANKFORD. Right. 

Mr. DUBESTER [continuing]. The law of the case. That is how we 

acted, including myself, upon remand. 

The only point I was making is that, as you know, there are 

many circuit courts out there, and they do not always agree either. 

Senator LANKFORD. Right. 

Mr. DUBESTER. Sometimes there is a split among the circuits, 

and that raises questions about what the state of the law is too. 

Senator LANKFORD. That, we have seen as well, as recently as 

the last couple of weeks, even, in different well-popularized cases, 

so—— 

Mr. DUBESTER. But I would certainly be happy, though, as you 

suggested in your lead-in to follow up with you and/or your staff 

about it. 

Senator LANKFORD. Yes. I would be glad to, and again, we want 

you to be able to work independently. It is of great value to the Nation to have independent voices that do not all have to nod their 

heads the same way, to be able to have disagreement, have open 

argument, though at this dais, we all agree with every issue all the 

time. [Laughter.] 

That is not an issue for us. 

The nominees have made financial disclosures and provided responses to biographical and prehearing questions submitted by the 

Committee.1 Without objection, this information will be made a 

part of the hearing record,2 with the exception of the financial 

data, which are on file and available for public inspection at the 

Committee offices.3

The hearing record will remain open until 12 p.m. tomorrow, November 8, 2017, for the submission of statements and questions for 

the record. We would encourage Members to hurry to be able to get 

that in so that we can walk through this process if there are any 

pending questions that are there. 

However, if Members wish to receive responses to questions prior 

to the Committee vote on Thursday, which we hope to do, they 

must submit questions for the record by 5 p.m. today. 

Again, thank you for your service already to the Nation and for 

being willing to be able to go through this process, for Mr. 

DuBester to go through this process again and again and again and 

again and again actually for you. Thank you very much for engaging with that. 
21 

With this, this hearing is adjourned. 

[Whereupon, at 10:29 a.m., the Committee was adjourned.] 

(23) 

A P P E N D I X 
24 

Statement of Colleen Duffy Kiko 

Before The Committee on 

Homeland Security and Governmental Affairs 

United States Senate 

November 7, 2017 

Thank you, Mr. Chairman. 

Chairman Lankford, Senator Heitkamp, Members of the Committee, l would like to thank 

you and your staff for all the kindnesses that have been shown to me as I have prepared for 

this hearing. 

I also deeply appreciate Congressman Sensenbrenner for taking the time away from his 

very booked schedule to introduce me today. l respect his dedicated service to the U.S. 

House of Representatives and am deeply honored to call him a friend. 

I am here today with some of my family members -who represent the others. My son 

Philip and his wife Molly, who are expecting our 5th grandchild, my son Michael, my sister, 

Tama, and of course my best friend and husband, who currently serves as the Chief 

Administrative Officer of the House of Representatives- Phil Kiko. I appreciate their 

support and the support of all of those who are not here. 

I would like to thank Mr. DuB ester and Mr. Abbott for the genuine kindnesses that they 

have shown me. !look forward to working with both of them as we journey forward, 

should I be confirmed. I would also like to personally thank Fred facob, the Solicitor at the 

FLRA for helping me get through the ethics clearance process and Gina Grippando, Counsel 

for Regulatory and Public Affairs at FLRA, who has truly gone above and beyond to offer me 

any assistance I needed- even responding to my cmails at midnight or early, early 

morning. She has been of invaluable assistance. 

It is indeed an honor to have been nominated by President Trump to serve as a Member of 

the Federal Labor Relations Authority and, if confirmed, to be designated as Chairman of 

that agency. 

My career with the Federal government began after I moved here from North Dakota in 

1972. My first job was a GS-3 clerk typist in the Department of Treasury, Office of 

Personnel. My father, Lawrence Duffy, proudly spent over 49 years (almost 112 century) in 

the Federal service before he retired. He was a railway mail carrier for the U.S. Postal 

Service on the Soo Line Railroad that ran from Enderlin, North Dakota to Portal, North 

Dakota. He later became an inspector for the U.S. Customs Service at the North 

Dakota/Canada border. He always considered Federal service to be an honorable 

profession. His work ethic, extreme pride in his job, and impeccable character were 

examples for me and I hope I live up to his standards. My mother, Angie Duffy, was also an 

example to me as someone who always wanted to learn new things, to have different and 

varied experiences (she began oil painting in her 50s), and to broaden her horizons. In her 

quiet, loving way, she pushed all four of her children to be strong and independent. 
25 

Congressman Sensenbrenner was very kind to speak about my background. But I would 

like to point out a few areas of my career that I believe affirmatively qualify me for this 

position. Before FLRA became an agency, I was working in the Department of Labor, Labor 

Management Services Administration. The duties of that organization were transferred 

into the new agency in 1979 when it was created- so I was there when FLRA opened its 

doors. I was there celebrating with a cake on its first birthday party. It was a very 

important part of shaping me into a professional employee. It was a great place to work 

I have worked in almost every component of the FLRA. In the Regional office, I investigated 

unfair labor practice charges, chaired hearings on representational disputes, monitored 

federal union elections, and conducted training for both agencies and unions. In the 

Authority level, I reviewed representation disputes, Administrative Law Judge decisions 

and drafted decisions for the Authority Members. My last position was a supervisory labor 

relations specialist handling procedural motions before the Authority when I decided that I 

needed to broaden my career perspectives by attending law school. 

I graduated with my law degree from George Mason Antonin Scalia Law School in 1986 

and, who knew, that just 19 years later I would find myself back at the agency serving in the 

Senate-confirmed position of General Counsel in 2005. And now- another 10 years later 

and I have again been nominated to serve as a Member of the Agency. My career keeps 

taking me back to my roots. 

Most recently, having served as the General Counsel of the FLRA provided me more specific 

experience in managing a diverse and geographically dispersed staff. I managed the seven 

regions of the FLRA which included all aspects of management from budgeting and budget 

management, instituting performance standards and evaluating performance, leading 

change, policy development, staff and customer training, etc. 

In my current position as a judge of the Employees' Compensation Appeals Board, where 1 

have served for 12 years, I have polished the attributes necessary to render decisions on 

issues that would come before the FLRA. Those attributes include reviewing the facts 

presented, considering arguments provided by the parties, and applying the existing law to 

the particular facts of each case. Further, as a part of the management team, we managed a 

staff at that time of approximately 50 employees, which included updating performance 

standards, initiating mentor programs to assist staff in increasing the quality, quantity, and 

timeliness of the work, and developed an updated case tracking system to more readily 

track the time it takes for cases to work their way to issuance, to name a few of our 

initiatives. 1 believe this experience has prepared me well to become a Member of the FLRA. 

l believe my 29 years in the Federal government should serve me well in this agency where 

we are commissioned to provide leadership in establishing policies and guidance relating 

to matters of Federal Service Labor-Management Relations Statute and by effectively 

administering the nine specific mandates of the statute. I greatly appreciate the 

opportunity to appear before you and am willing to answer any questions. 
26 

UNITED STATES OFFICE OF 

GOVERNMENT ETHICS 

----* 

The Honorable Ron Johnson 

Chairman 

Committee on Homeland Security 

and Governmental Affairs 

United States Senate 

Washington, DC 205! 0 

Dear Mr. Chairman: 

REDACTED 

September I 0, 2017 

ln accordance with the Ethics in Govemment Act of 1978, I enclose a copy of the 

financial disclosure report filed by Colleen Kiko, who has been nominated by President Trump 

for the position of Member, Federal Labor Relations Authority. 

We have reviewed the report and have obtained advk.e ti·om the agency concerning any 

possible conllict in light of its functions and the nominee's proposed duties. Also enclosed is an 

ethics agreement outlining the actjons that the nominee will undertake to avoid conflicts of 

interest. Unless a date fOI' compliance is indicated in the ethics agreement, the nominee must 

fully comply within three months of confirmation with any action specified in the ethics 

agreement. 

Based thereon, we believe that this nominee is in compliance with applicable laws and 

regulations governing contlicts of interest. 

Sincerely, 

David J. Apol 

Enclosures REDACTED Acting Director and General Counsel 

__________ ,_,. _____ * * * * 1201 NEW YORK AVENW·SUITE SllO·WASHINGTON DC·20005 
27 

September 6, 2017 

Fred B. Jacob 

Solicitor and Designated Agency Ethics Official 

Federal Labor Relations Authority 

1400 K St., NW 

Washington, DC 20424 

Dear Mr. Jacob: 

The purpose of this letter is to describe the steps that r will take to avoid any actual or 

apparent conflict of interest in the event that I am confirmed for the position of Member, Fedeml 

Labor Relations Authority. 

As required by 18 U.S.C. § 208(a), I will not participate personally and substantially in 

auy particular maUer in which I know that I have a fmanclal interest directly and prodictably 

affected by the matter, or In Which I kilow that a person whose interests are imputed to me has a 

financial interest directly and predlc1ably affected by the matter, unless I first obtain a written 

waiver, pursuant to 18 U.S.C. § 208(b)(l}, or qualify for a regulatory exemption, pursuant to 

18 U.S.(!. § 208(bX2). I understand that the interests ofthe following persons are imputed to 

me: any spouse or minor child of mine; any gcneml partner of a partnership in which I am a 

limited or general partner; any organlzatlon in which I serve as officer, director, trustee, general 

partner or employee; and any person or organization with Which I am negotiating or have an IUT!Ulgemcnt concerning prospective employment. 

Upon confirmation, I will resign from my position with the CM Group. For a period of 

one year after my resignation, I will not participate personaUy and substantially In any particulm: 

matter involving specific parties In which I .know the CM Group is a party or represents a party, 

unless I am first authoriZed to participate, pursuant to S C.F.R. § 2635.502(d). 

Upon confirmation, I wlll resign my position as a Member/Owner of Future With Hope 

Women, LLC and It will refund my capital, if any. Fora period of one year after my resignation, 

I Will not participate pe~naUy and substantially in any particular matter involving specific 

parties in which I know Future With Hope Women, LLC is a party or representS a party, unless I 

am first authorized to participate, pursuant to 5 C.P.R. § 263S.S02(d). 

I will meet In person with you during the first week of my service In the pasltion of 

Member In order to complete the Initial ethics briefing required under S C.F.R. § 2638.305. 

Within 90 days of my confirmation, I will also document my compliance with this ethics 

agreement by notifying you In writing when I have completed the steps described in this cthlcli 

agreement. 
28 

Ifl have a managed account or otherwise use the services of an lnveS";ment professional 

during my appointment, I will ellSU!C that the account manager or investment professional 

obtains my prior approval on a ease-by-case basis for the purchase of any assets other than cash, 

cash equivalents, Investment funds that qualify for the exemption at 5 C.F.R. § 2640.201(a), or obligations of the United States. 

I understand that as an appointee I will be required ~o sign the Ethics Pledge (Exec. Order no. 13770) and that I will be bound by the requirements and restrictions therein in addition to the 

commitments I have made in thls ethlcs agreement. · 

I have been advised that 1hls ethics agreement will be posted publicly, consistent with 

S U.S.C. § 552, on the website of the U.S. Office of Government Ethics with ethics agreements 

of other PresldentlaJ nominees who ftle public fmanciaJ disclosure reports. 

Sincerely, 

ColleenKiko 
29 

REDACTED 

HSGAC BIOGRAPHICAL QUESTIONS FOR 

EXECUTIVE NOMINEES 

1. Basic Biographical Information 

Please provide the following information. 

i) From 

First Name Middle Name ~ ful.!'fi.! (Mo-;rthrY ear) 

(Check box if 

estimate 

Colleen Margaret DuffY X Est 

10/1950 

Colleen Duff)' Raap Est 8/1972 

Name Used To 

(MonthlY ear) 

(Check box if 

estimate) 

Est 

811972 

Est 

111982 
30 

Never Married 

0 

Married 

X 

Separated 

0 

2 

Annulled 

0 

Divorced 

X 

Est 

Widowed 

0 

0 

Est 

0 
31 

Sarah Kiko Leiby 

Philip George Kiko Jr. 

Michael Ryan Kiko 

2. Education 

List all post-secondary schools attended. 

Type of School Date Began Date Ended 

Name of (vocatiohal/technicalitrade school, .~ (month/year) ~ (check Date c_olleg~/univers,~ty!m!litirry ~~lleg~~: (month/year) Degree School cofrespondence/dist'PlcefexteilSion!On1iile (checKbox if box if estimate j Awarded 

(check :•prese~t'j box school) eStiin8te) if still in school) 

North State University E" Est Pr-esent B.S. 5/1972 

Dakota State 8/1968 1 5/1971 X 0 

University 

George Law School E" Est Present J.D. 511986 

Mason 8/1983 0 5/1986 X 0 

Anton in 

Scalia Law 

School Est .. , Present 

a 0 0 

., ., Pre5ent 

0 0 0 

3 
32 

3. Employment 

(A) List all of your employment activities, including unemployment and self-employment. 

If the employment activity was military duty, list separate employment activity periods to 

show each change of military duty station. Do not list employment before your 18th 

birthday unless to provide a minimum of two years of employment history. 

IYll• of,Em!.!loyrilent 

(>'.ctive Military 'Duty Station, Date 

NationaJ,.Guard/Reserve, Emnio:~:ment 

USPHS C:oinmissioned Cprps, Location 

Q!!!l Ended 

Other'Federal employment, NameofYour Most Recent Emnloyment (month/ye!U") ~tate {:}overnrrierit. (NOn~ Employer/ Position (City and Began , (check box if 

Feaeml Emplpyment), Self- Assi~:ned Du!Jl Title/Rank State (month/year) estimate) ernpiojrme~~~· Unelnplo'yment St~tioil only) (check box if (check Fedeinl Contractor, Non- estiiniltc) "present" .bo~ 

q~.v~Tnm~nt Empl?Yment if still 

(exCluding seff..employment), employed) 'Other 

Federal Employment Department of Labor, Judge Wash., ,., Est 

Employees' D.C. 312008 X Present 0 

Compensation 

Appeals BoardWashington, D.C. 

Federal Employment Federal Labor General Wash., Est Est 

Relations Authority, Counsel D.C. 10/1005 X 3/2008 X 

Office of General 

Counsel, 

Washington, D.C. 

Federal Employment Department of Labor Judge Wash., E" E" 

Employees' D.C. 212()02 X 10/2005 X 

Compensation 

Appeals BoardWashington, D.C. 

Non-Governmental Ronald M. Cohen Associate Arlington, E•t E" 

Law Firm and Associates, P .C. Attorney VA 11/1999 X 2/2002 X 

Arlington, Va 

Non-Governmental Law Offices of Sole McLean, ,., Est 

Law Firm Colleen Duffy Kiko, Practitioner VA 9/1996 ' tl/1999 X 

P.C. 

(Contmued on Attachment 1). 

(B) List any advisory, consultative, honorary or other part-time service or positions with 

federal, state, or local governments, not listed elsewhere. 

Date Service Date Service Ended 

Name of Government Name of Position Began (moritblycar) (cheek box 

Entitr (montb/year) if estimate) (check 

( che~k b~~ if "present" box if still 

estimate serving) 

NONE E" Est Present 

0 0 0 

4 
33 

4. Potential Conflict of Interest 

(A) Describe any business relationship, dealing or financial transaction which you have had 

during the last 10 years, whether for yourself, on behalf of a client, or acting as an agent, 

that could in any way constitute or result in a possible conflict of interest in the position to 

which you have been nominated. NONE 

(B) Describe any activity during the past 10 years in which you have engaged for the 

purpose of directly or indirectly influencing the passage, defeat or modification of any 

legislation or affecting the administration or execution of law or public policy, other than 

while in a federal government capacity. NONE 

5. Honors and Awards 

List all scholarships, fellowships, honorary degrees, civilian service citations, military 

medals, academic or professional honors, honorary society memberships and any other 

special recognition for outstanding service or achievement. NONE 

6. ~er:nberships 

List all memberships that you have held in professional, social, business, fraternal, 

scholarly, civic, or charitable organizations in the last 10 years. 

Unless relevant to your nomination, you do NOT need to include memberships in 

charitable organizations available to the public as a result of a tax deductible donation of 

$1,000 or less, Parent-Teacher Associations or other organizations connected to schools 

attended by your children, athletic clubs or teams, automobile support organizations (such 

as AAA), discounts clubs (such as Groupon or Sam's Club), or affinity 

memberships/consumer clubs (such as frequent flyer memberships). 

Name of Or~anization Dates of Your Mernhershiu Position(s} Held (YOu may approxima~e.) 

Virginia State Bar 1986 • Present Member 

District of Columbia Bar 1986 . Present Member 

Arlington Cursillo 1979-Present Member 

Arlington Cursillo 2008-2012 Weekend Committee Chairman 

5 
34 

Future With Hope Women, LLC 2015 - Present Partner 

The CM Group (Scrap booking 2014 - Present Scrapbook Sales Consultant 

Company) 

Federalist Society V atious years Member 

Reagan/Bush Alumni Association 1990- Present Member 

Bush/Quayle Alumni Association 1994 - Present Member 

St. Charles Borromeo Catholic 1979- Present Parishioner 

Church 

Arlington County Bar Association 1996-2002 Member 

Fairfax County Bar Association 1996-2002 Member 

7. Political Activity 

(A) Have you ever been a candidate for or been elected or appointed to a political office? 

NO 

'Naine.ofOffice 

NIA 

EJectfdtAmiointed/•• 

Oindidate Oi!ly 

Year{s) Election.· 

· Heldor 

Appointment 

Made 

.Term Of Service 

(if applicable) 

(B) List any offices held in or services rendered to a political party or election committee 

during the last ten years that you have not listed elsewhere. None 

Responsibilities 

6 
35 

(C) Itemize all individual political contributions of $200 or more that you have made in the 

past five years to any individual, campaign organization, political party, political action 

committee, or similar entity. Please list each individual contribution and not the total 

amount contributed to the person or entity during the year. 

Name of Recipient Year of Contribution 

7 
36 

8. Publications and Speeches 

(A) List the titles, publishers and dates of books, articles, reports or other published 

materials that you have written, including articles published on the Internet. Please provide 

the Committee with copies of all listed publications. In lieu of hard copies, electronic copies 

can be provided via e-mail or other digital format. 

Title Publisher Date{~) of Publication 

NONE 

8 
37 

(B) List any formal speeches you have delivered during the last five years and provide the 

Committee with copies of those speeches relevant to the position for which you have been 

nominated. Include any testimony to Congress or any other legislative or administrative 

body. These items can be provided electronically via e-mail or other digital format. 

Titletronic Place/ Audience Date(s) ofSneceb 

NONE 

9 
38 

(C) List all speeches and testimony you have delivered in the past ten years, except for 

those the text of which you are providing to the Committee. 

title Place/Audience Dlite(s} ofSJleech 

NONE 

9. Criminal History 

Since (and including) your 181

" birthday, bas any of the following happened? 

10 
39 

Have you been issued a summons, citation, or ticket to appear in court in a criminal proceeding against you? 

(Exclude citations involving traffic infractions where the fine was less tban $300 and did not include alcohol or 

drugs.) NO 

Have you been arrested by any police officer, sheriff, marshal or any other type oflaw enforcement official? 

NO 

Have you been charged, convicted, or sentenced of a crime in any court? NO 

Have you been or are you currently on probation or parole? NO 

Are you currently on trial or awaiting a trial on criminal charges? NO 

To your knowledge, have you ever been the subject or target of a federal, state or local criminal investigation? 

NO 

If the answer to any of the questions above is yes, please answer the questions below for 

each criminal event (citation, arrest, investigation, etc.). If the event was an investigation, 

where the question below asks for information about the offense, please offer information 

about the offense under investigation (if known). 

A) Date of offense: 

a. Is tbis an estimate (Yes/No): 

B) Description of the specific nature of the offense: 

C) Did the offense involve any of the following? 

I) Domestic violence or a crime of violence (such as battery or assault) against your child, dependent, 

cohabitant, spouse, former spouse, or someone with whom you share a child in common: Yes 1 No 

2) Firearms or explosives: Yes I No 

3) Alcohol or drugs: Yes I No 

D) Location where the offense occurred (city, county, state, zip code, country): 

E) Were you arrested, summoned, cited or did you receive a ticket to appear as a result of this offense by any 

police officer, sheriff, marshal or any other type of law enforcement official: Yes I No 

I) Name of the law enforcement agency that arrested/cited/summoned you: 

2) Location of the law enforcement agency (city, county, state, zip code, country): 

F) As a result of this offense were you charged, convicted, currently awaiting trial, and/or ordered to appear in 

court in a criminal proceeding against you: Yes I No 

1) lfyes, provide the name of the court and the location of the court (city, county, state, zip code, 

country): 

11 
40 

2) If yes, provide all the charges brought against you for this offense, and the outcome of each charged 

offense (such as found guilty, found not"guilty, charge dropped or "nolle pros," etc). If you were found 

guilty of or pleaded guilty to a Jesser offense, list separately both the original charge and the lesser 

offense: 

3) If no, provide explanation: 

G) Were you sentenced as a result of this offense: Yes /No 

H) Provide a description of the sentence: 

I) Were you sentenced to imprisonment for a term exceeding one year: Yes /No 

J) Were you incarcerated as a result of that sentence for not less than one year: Yes I No 

K) If the conviction resulted in imprisonment, provide the dates that you actually were incarcerated: 

L) If conviction resulted in probation or parole, provide the dates of probation or parole: 

M) Are you currently on trial, awaiting a trial, or awaiting sentencing on criminal charges for this offense: Yes I 

No 

N) Provide explanation: 

12 
41 

10. Civil Litigation and Administrative or Legislative Proceedings 

(A) Since (and including) your 18th birthday, have you been a party to any public record 

civil court action or administrative or legislative proceeding of any kind that resulted in (1) 

a finding of wrongdoing against you, or (2) a settlement agreement for you, or some other 

person or entity, to make a payment to settle allegations against you, or for you to take, or 

refrain from taking, some action. Do NOT include small claims proceedings. 

Date ClairniSuit . 

was Filed or 

Legislative 

PrOceedingS 

Began 

NONE 

Name(s}of 

· Principal Parties 

Involved iri 

Action/Proceeding 

Nature of Action/Proceeding Results of 

Action/Pr~ceeding 

(B) In addition to those listed above, have you or any business of which you were an officer, 

director or owner ever been involved as a party of interest in any administrative agency 

proceeding or civil litigation? Please identify and provide details for any proceedings or 

civil litigation that involve actions taken or omitted by you, or alleged to have been taken or 

omitted by you, while serving in your official capacity. 

Name(s\ of 

QlJ!!! Princi~lll Parties Nature of Action/Proceeding Date Claim/Suit ~ Involved iri Results of 

Was Filed Act'ion/PrOceedinJ: Action/Pro£e~Qin~:; 

2/8/1980 Alexandria, Loren D. Raap Uncontested Divorce Divorce 

VA Circuit 

Court Colleen Duffy 

Raap 

13 
42 

(C) For responses to the previous question, please identify and provide details for any 

proceedings or civil litigation that involve actions taken or omitted by you, or alleged to 

have been taken or omitted by you, while serving in your official capacity. 

11. Breach of Professional Ethics 

(A) Have you ever been disciplined or cited for a breach of ethics or unprofessional conduct 

by, or been the subject of a complaint to, any court, administrative agency, professional 

association, disciplinary committee, or other professional group? Exclude cases and 

proceedings already listed. NO 

Name of ~ Describe Citation/Disciplinary Agency/Association/ Citation/Disciplinary Results of Disciplinary Action/Complaint Conimittee/Groull Action/Complaint Action/Complaint 

Issued/Initiated 

(B) Have you ever been fired from a job, quit a job after being told you would be fired, left 

a job by mutual agreement following charges or allegations of misconduct, left a job by 

mutual agreement following notice of unsatisfactory performance, or received a written 

warning, been officially reprimanded, suspended, or disciplined for misconduct in the 

workplace, such as violation of a security policy? NO 

12. Tax Compliance 

(This information will not be published in the record of the hearing on your nomination, 

but it will be retained in the Committee's files and will be available for public inspection.) 

REDACTED 
43 

REDACTED 

13. Lobbying 

In the past ten years, have you registered as a lobbyist? If so, please indicate the state, 

federal, or local bodies with which you have registered (e.g., House, Senate, California 

Secretary of State). NO 

14. Outside Positions 

X See OGE Form 278. (If, for your nomination, you have completed an OGE Form 278 

Executive Branch Personnel Public Financial Disclosure Report, you may check the box here to 

complete this section and then proceed to the next section.) 

For the preceding ten calendar years and the current calendar year, report any positions 

held, whether compensated or not. Positions include but are not limited to those of an 

officer, director, trustee, general partner, proprietor, representative, employee, or 

consultant of any corporation, firm, partnership, or other business enterprise or any nonprofit organization or educational institution. Exclude positions with religious, social, 

fraternal, or political entities and those solely of an honorary nature. 

I:l:.ruLQf 

Ore;nnization 

(corporation, finn, 

~ Position Held Position Address of partnership. Other 

business enterpris~ Position Held From Held To Organization Organization other non~profit (month/year) (month/year) 

organization, 

educational 

institution) ~· 

16 
44 

15. Agreements or Arrangements 

X See QGE Form 278. (If, for your nomination, you have completed an OGE Form 278 

Executive Branch Personnel Public Financial Disclosure Report, you may check the box here to 

complete this section and then proceed to the next section.) 

As of the date of filing your OGE Form 278, report your agreements or arrangements for: 

(1) continuing participation in an employee benefit plan (e.g. pension, 40lk, deferred 

compensation); (2) continuation of payment by a former employer (including severance 

payments); (3) leaves of absence; and (4) future employment. 

Provide information regarding any agreements or arrangements you have concerning (1) 

future employment; (2) a leave of absence during your period of Government service; (3) 

continuation of payments by a former employer other than the United States Government; 

and ( 4) continuing participation in an employee welfare or benefit plan maintained by a 

former employer other than United States Government retirement benefits. 

Status a nil Terms of Any 

Agreemen't or Arranl!ement 

16. Additional Financial Data 

17 

!!l!.!£ 

(monthlyear) 
45 

All information requested under this beading must be provided for yourself, your spouse, 

and your dependents. (This information will not be published in the record of the hearing 

on your nomination, but it will be retained in the Committee's files and will be available for 

public inspection.) 

REDACTED 
46 

REDACTED 

SIGNATURE AND DATE 

I hereby state that I have read the foregoing Statement on Biographical and Financial Information and that the information 

provided therein is, to the best of my knowledge, current, accurate, and complete. · 

Thi• ){;+( day of 5ept, ZO I::(-

25 
47 

Attachment 1 
48 

Attachment 1 

Colleen Duffy Kiko 

HSGAC Biographical Questions for Executive Nominees 

Type of Employment Name of Most Recent Location 

Employer /Duty Position/Title 

Station 

Non-Governmental St. Charles Finance Officer Arlington, 

Catholic School, (part time) VA 

Arlington, VA 

Not working Stay at Home Arlington, 

Morn VA 

FederaVCongressional Committee on Minority Counsel Wash., 

the Judiciary, D.C. 

Civil and 

Constitutional 

Rights 

Subcommittee 

Federal Employment Department of Special Assistant Alexandria, 

Justice, U.S. United States VA 

Attorney's Attorney 

Office, (This position 

Alexandria, VA was a detail from 

my position in 

the Department 

of Justice) 

Federal Employment Department of Attorney/Advisor Wash., 

Justice, Civil D.C. 

Rights Division, 

Washington, 

D.C. 

State Government Fairfax County Law Clerk Fairfax, 

Attorney's (part time) VA 

Office, Fairfax, 

VA 

Not working Attended Law Arlington, 

School/Had VA 

another child 

Federal Employment Federal Labor Supervisory Wash., 

Relations Labor Relations D.C. 

Authority, Office Specialist 

of Executive 

Director, 

Washington, 

D.C. 

Federal Employment Federal Labor Labor Relations Wash., 

Relations Specialist D.C. 

Authority, Office 

of Chief 

Counsel, 

Washington, 

D.C. 

Federal Employment Federal Labor Labor Relations Wash., 

Relations Specialist D.C. 

Authority, 

Washington 

Regional Office, 

Washington, DC 

Date Date 

Employment Employment 

Be11:an ended 

8/1991- est. 212002- est 

11/1989- est 8/1991 -est 

3/1989-est 11/1989 • est 

9/1988- est 3/1989 ·est 

12/1986- est 3/1989 ·est 

11/1985- est 2/1986-est 

8/1983 -est 12/1986 - est 

4/1981- est 8/1983 -est 

1211979 -est. 4/1981- est. 

1/1979 12/1979-est 
49 

2 I Continued- Colleen Duffy Kiko 

Federal Employment Department of Compliance Wash., 8/1976 est. 1/1979 

Labor, Labor Officer D.C. 

Mgmt Services 

Administration, 

Washington Area 

Office, Wash., 

D.C. 

Federal Employment Department of Employee Wash., 8/1975 est 8/1976- est 

Treasury, U.S. Relations D.C. 

Customs Service, Specialist 

Office of 

Personnel, 

Wash., D.C. 

Federal Employment Department of Labor and Wash., 12/1974 - est 8/1975- est 

Treasury, U.S. Employee D.C. 

Customs Service, Relations 

Office of Specialist 

Personnel, 

Washington, DC 

Federal Employment Department of Employee Wash., 1211973 -est 12/1974- est. 

Treasury, U.S. Relations D.C. 

Customs Service, Specialist 

Office of 

Personnel 

Federal Employment Department of Clerk Wash., 311973-est 1211973 - est 

Treasury, Office D.C. 

of the Secretary, 

Washington, 

D.C. 

Not working Moved from 2/1973- est 3/1973 ·est 

North Dakota to 

Washington, DC 

Non-Federal Souris River Teacher Wawanesa, 8/l972~st 211973- est 

Employment School District, Manitoba, 

Wawanesa, Canada 

Manitoba, 

Canada 

Non-Federal Dawson Hail Policy Examiner Fargo, ND 5/1972-est 8/1972 ·est 

Employment Insurance, Fargo, (summer job) 

N.D. 

Non-Federal North Dakota Resident Fargo, NO 8/1969-est 5/1970-est 

Employment State University Assistant 8/1971- est 5/1972- est 

(Working on 

campus during 

school year) 

Non-Federal Westhope Lifeguard Westhope, 5/1971- est 8/!97!- est 

Employment Swimming Pool, (summer job) ND 

Westhope, ND 

Non-Federal Hall Allen Shoe Salesperson Moorhead, 511969-est 8/1969- est 

Employment Shoes, (summer job) MN 

Moorhead, MN 
50 

U.S. Senate Committee on Homeland Security and Governmental Affairs 

Pre-Hearing Questionnaire 

For the Nomination of Colleen Duffy Kiko to be a Member of the 

Federal Labor Relations Authority 

I. Nomination Process and Conflicts of Interest 

1. Did the President give you specific reasons why he nominated you to be a member of the 

Federal Labor Relations Authority (FLRA)? No. 

2. Were any conditions, expressed or implied, attached to your nomination? If so, please 

explain. No. 

3. Have you made any commitments with respect to the policies and principles you will 

attempt to implement as a member ofthe FLRA? lf so, what are they, and to whom were 

the commitments made? No. 

4. Are you aware of any business relationship, dealing, or financial transaction that could 

result in a possible conflict of interest for you or the appearance of a conflict of interest? 

If so, please explain what procedures you will use to recuse yourself or otherwise address 

the conflict. And if you will recuse yourself, explain how you will ensure your 

responsibilities are not affected by your recusal. 

In connection with the nomination process, I consulted with the Office of Government Ethics and 

the FLRA 's designated agency ethics official to identifY potential coriflicts of interest. Any 

potential conflicts of interest will be resolved in accordance with the terms of the ethics 

agreement I signed with FLRA 's designated agency ethics official and that has been provided to 

this Committee. Jam unaware of any other potential conflicts of interest at this time. 

II. Bacl•ground of the Nominee 

5. What specific background, experience, and attributes qualify you to be a member of the 

FLRA? 

The specific background and experience of my prior positions in the FLRA are most significant 

in qualifYing me to become a Member oft he FLRA. I understand and have worked in the 

organization; I understand and have worked on effectuating the mission of the agency; and I 

have studied and understand the various issues that come b~fore the FLRA. Most recently, 

having served as the General Counsel of the FLRA provided me more specific experience in 

managing a diverse and geographically dispersed stajj' My current position as a Judge of the 

Employees ' Compensation Appeals Board, where I have served for 12 years, has polished the 

attributes necessary to render decisions on issues that would come before the FLRA. Those 

attributes include reviewing the facts presented, considering arguments provided by the parties, 

Senate Homeland Security and Governmental Affairs Committee Page 1 
51 

and applying the existing law to the particular facts of each case. In addition, my prior service 

as a Special Assistant United States Attorney, as a practicing attorney, and as a counsel for the 

Subcommittee on Civil and Constitutional Rights in the U.S. House of Representatives provided 

me hands-on experience as a practitioner before various tribunals. I believe this specific 

background, this experience, and these attributes have prepared me well to become a member of 

the FLRA. 

6. Please describe: 

a. Your leadership and management style. 

My leadership and management style is one of open communication, adherence to established 

policies, and engagement with staff. I like to see the big picture and find ways to energize and 

motivate people to lend their best selves to the mission. I like to recognize people for their 

successes, hold them accountable for shortcomings or failures while offering suggestions for 

improvement, and reconfigure when shortcomings or failures become a pattern. 

b. Your experience managing personnel. 

While serving as General Counsel of the FLRA, I managed approximately 60-70 employees in 

seven regions geographically dispersed all over the country. This included all aspects of 

management from budgeting and budget management, instituting performance standards and 

evaluating pelformance, leading change, policy development, staff and customer training, etc. I 

further have experience in managing personnel while serving for many years with the prior 

Chairman of the Employees' Compensation Appeals Board. As a part of the management team, 

we managed a staff at the time of approximately 50 employees. The primary focus was to deliver 

a quality legal decision within a reasonable and efficient time fi·ame, which included updating 

Board-wide performance standards, initiating mentor programs to assist staff in increasing the 

quality, quantity, and timeliness of the work, and developing a state-of-the-art case tracking 

system to more readily track the time it takes for cases to work their way to issuance, to name a 

few of our initiatives. But my most important personnel management role was raising four 

children successfully to adulthood 

c. What is the largest number of people that have worked under you? 

In my role as General Counsel of the FLRA I supervised approximately 60 to 70 employees. 

7. Please Jist any positions where you served as a political appointee (i.e. any federal 

employment position where you were appointed by the President, the Vice President, or 

agency head) including a position description and the appointing official. 

I was previously appointed by President George W Bush and confirmed by the Senate to serve 

as General Counsel of the FLRA. The duties of that position are outlined in the Federal Labor 

Management Relations Statute, 5 U.S. C. §7014(/)(1), (2), and (3). 

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I was appointed by Secretary Elaine L. Chao to serve in the Department of Labor as a Judge of 

the Employees' Compensation Appeals Board. A position description is attached 

III. Role of Member, FLRA 

8. Please describe your view of the agency's core mission and a member's role in 

achieving that mission. 

The core mission of the FLRA is to "provide leadership in establishing policies and guidance 

relating to matters under [the rederal Service Labor-Management Relations Statute (the 

Statute)], and, except as otherwise provided, [to] be responsible for carrying out the purposes of 

[the Statute]." 5 U.S. C.§ 7105(a)(l). "It is the purpose of[the Statute] to prescribe certain 

rights and obligations oft he employees of the Federal Government and to establish procedures 

which are designed to meet the special requirements and needs of the Government. The 

provisions of [the Statute] should be interpreted in a manner consistent with the requirement of 

an effective and efficient Government." Id. § 7101(b). 

The FLRA shall: (1) determine the appropriateness of units for labor organization 

representation under section 7112 oft he Statute; (2) supervise or conduct elections to determine 

whether a labor organization has been selected as an exclusive representative by a mqjority of 

the employees in an appropriate unit and otherwise administer the provisions of section 7111 of 

the Statute relating to the according of exclusive recognition to labor organizations; (3) 

prescribe criteria and resolve issues relating to the granting of national consultation rights 

under section 7113 of the Statute; (4) prescribe criteria and resolve issues relating to 

determining compelling need for agency rules or regulations under section 7117 (b) of the 

Statute; (5) resolve issues relating to the duty to bargain in good faith under section 7117(c) of 

the Statute; (6) prescribe criteria relating to the granting of consultation rights with respect to 

conditions of employment under section 7117 (d) of the Statute; (7) conduct hearings and resolve 

complaints of unfair labor practices under section 7118 of the Statute; (8) resolve exceptions to 

arbitrators' awards under section 7122 of the Statute; and (9) take such other actions as are 

necessary and appropriate to effectively administer the provisions of the Statute. See id § 

71 02(a)(2). 

A Member of the FLRA must render decisions and take actions consistent with the statutory and 

regulatory requirements of the FLRA. 

9. Please describe how you anticipate, if confirmed, working with other FLRA members to 

promote the agency's core mission. 

I am looking forward to working with the other FLRA Members to efficiently and expeditiously 

rule on matters that come before the Authority. Justice delayed is justice denied I intend to 

work collegially with the other two Members in an effort to most effectively fit(fill the mission of 

the agency. 

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a. Please describe prior work experience that demonstrates your capacity to work with 

FLRA members of a different pa1ty affiliation. 

My current position as a Judge of the Employees' Compensation Appeals Board has provided me 

significant experience demonstrating my capacity to work with individuals of a different party 

affiliation. Secretaries of Labor under George W: Bush and Barack H Obama have variously 

appointed current Judges/Alternate Judges to the Board. My demonstrated ability to work with 

all of these appointees is reflected in the fact that, in panels of three, I have rendered over 

10,000 decisions and orders. It is imperative to me to respect others' opinions, carefully weigh 

the facts of the case against the law, and work together on a resolution. I intend to bring that 

same collegial method of doing business to the FLRA. 

10. Protecting whistleblower confidentiality is of the utmost importance to this Committee. 

a. During your career, how have you addressed whistleblower complaints? 

I have not, to my recollection, been responsible for handling any type ofwhistleblower 

complaint. 

b. How do you plan to implement policies within the FLRA to encourage employees to 

bring constructive suggestions forward without the fear of reprisal? 

I think that will come from the top. Should I am confirmed and designated Chairman I would 

ensure there was an open avenue ofcommunicationfor suggestions/comments/complaints and 

that policies would continue to be published regularly regarding the prohibition of retaliation 

for whistleblowers. But if I were approached by a whistle blower, I would ensure that the matter 

were investigated thoroughly in accordance with law and regulation, that the confidentiality of 

the complainant would be of paramount importance, and that there would be no retaliation 

against the complainant. 

c. Do you commit without reservation to work to ensure that any whistleblower within 

FLRA does not face retaliation? Yes 

d. Do you commit without reservation to take all appropriate action if notified about 

potential whistleblower retaliation? Yes 

11. What are the most significant challenges facing FLRA as an institution? If confirmed, 

what steps will you take to address these challenges? 

It is difficult to answer this question as I have not been associated with the agency for a few 

years. However, agencies in general will be facing budgetary restraints while still being 

expected to handle cases expeditiously. If confirmed and designated Chairman, I would 

challenge the agency leadership and agency staff to look for wtzys to reengineer our business 

model to create efficiencies at all levels. In my early days of working in the Federal government, 

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the Suggestion Program was well known and ·well used and some of the best ideas came from 

that program. I believe this type of program currently exists in the FLRA and I would endeavor 

to expand that program to encourage recommendations from the leadership and staff to find 

novel, innovative ways to continue to meet our mission deliverables while conserving resources 

and working more efficiently. It is my belief that employees are eager to be part of the solution 

and are often not heard. 

IV. Policy Questions 

12. What is your assessment of the cw-rent state offederallahor-management relations? If 

you believe that improvements can be made, in what areas should there be improvement 

and how can this be accomplished? 

1 believe labor-management relations in the ftderal sector are relatively stable at this time, with 

the exception of situations where new managers or newly elected employee representatives are 

unfamiliar with the rules. With a consistent offering of training for newcomers to the field and 

for experienced practitioners, FLRA is contributing to that stability by helping parties 

understand their rights and responsibilities, thereby reducing needless unfair labor practice 

charges. 

13. Given your previous experience as FLRA counsel, do you believe that improvements 

should be made to the Federal Service Labor-Management Relations statute? If so, what 

improvements can and should be made? 

I have been away from this field for nine years. As such 1 would defer any specjfic 

recommendations on how the current statute is working. However, I respect the legislative 

process and would be happy to discuss with Congress any ideas or suggestions they may hm;e to 

amend the statute. As a statute that is nearing its 40'" anniversary, it would be prudent to review 

language to determine if it is consistent with how the federal government does business in the 

21" century. 

14. The FLRA's 2017 Congressional Budget Justification states that the FLRA "had to 

overcome significant obstacles in meeting its mission requirements." The Justification 

notes that in addition to increased case filings in eet1ain agency components, the FLRA 

experienced a wave of key employee retirements and departures starting in FY 2013 and 

continuing into FY 2015. 

a. Given your past experience as a counsel to the PLRA, what do you believe is driving 

the increased case filings at certain components? 

Without having been at the FLRAfor the last nine years, 1 can only rely on statistics provided to 

me by the FLRA. 

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I have reviewed numbers of case intake for the last 5 years and, although the intake grew slightly 

in 2015 on the Authority side and grew slightly in 20/6 in the OGC side, the intake has gone 

steadily down in all components of the FLRA. From 2013 to 2017: 

intake for the Authority has gone downfi'om 192 to 179 cases; 

- intake for the OALJ has gone downfi·om 271 to 197 cases; 

- intake for the OGC (ULP cases) has gone downfi'om 4659 to 3655 cases; 

- intake for the OGC (Rep cases) has gone down.from 240 to 208 cases, and 

- intake for the FS1P has gone down from 194 to 98 cases. 

The numbers as stated do not seem to reflect an increase in case filings in any component. This 

is a good problem to have when eva! uating the state of labor-management relations in the 

federal workforce; but it will have to be realistically evaluated in terms of future staffing needs. 

As for staffing, 

In September of2013, the onboard staff was 115 employees. 

- As of September of 2017, the onboard staff is 119 employees 

There has been a fluctuation of onboard stafffi'om the highest of 132 in December of2014 to the 

lowest of 1 I 5 in 20I 3 but the staffing increases do not seem to correlate with the steady decline 

of case intake. 

b. What issues and factors do you believe most frequently give rise to unfair labor 

practice complaints? 

I believe that new supervisors/managers or new employee representatives, changes in the 

methodology of work practices, shift changes, lack of adequate communication, etc., are some 

factors that can give rise to labor-management issues. But I believe major factors that can 

elevate those issues to unfair labor practice charges or complaints are misunderstandings, 

tempers, challenging personalities, insensitivities, lack of communication, and hard feelings. A 

key component for resolving these issues is training, not only on labor-management issues, but 

on managing, communicating, and interacting with others, as well. 

c. As unfair labor practices are considered at the Office of General Counsel (OGC) 

level, do you believe agencies are afforded sufficient infotmation concerning the 

complaint? Are agencies provided a sufficient oppmiunity to weigh-in with OGC 

concerning a given complaint? 

I believe both sides should have an opportunity to understand the charge and be provided an 

opportunity to respond. Only after a charge is found to be meritorious and the GC is willing to 

file a complaint, should settlement negotiations begin. 

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d. Are there other obstacles besides increased caseloads and staff departures that hamper 

the FLRA's ability to fulfill its mission? If so, what are they, and what do you 

believe should be done to address them? 

Please see my answer to Question # 14a regw·ding increased case loads and staff departures. 

I know that with only two Members of the three-member Authority, there is a growing number of 

cases awaiting action. That is a real obstacle and damaging to the parties. Once the full 

Authority's membership has been co11:firmed, these obstacles will be alleviated. As to what other 

current obstacles may exist which could hamper FLRA 's ability to fiilfill its mission, if confirmed 

and designated Chairman, I would hope to assess the agency and, together with the other 

Members, leadership, and staff, identifY whether and what obstacles might exist and find 

collaborative methods to overcome them. 

15. Are there improvements to the FLRA 's internal review process that you believe can be 

improved upon to ensure fewer cases ultimately are overturned by the courts, and that all 

evidence is properly considered in a given case? 

It will be important to carefully review the higher level court decisions over the last 10-15 years 

to see what trends are appearing. If the courts are overturning a significant number of cases, we 

will need to consider whether FLRA 's approach has been the appropriate one. The courts 

generally defer to an agency's interpretation of its own regulations; so if we are being 

overturned we need to consider whether FLRA is overreaching or whether the facts and law are 

not being adequately conveyed That is certainly something that I will evaluate should I be 

col?:firmed and designated Chairman. 

16. In the 2016 Best Places to Work rankings complied by the Partnership for Public 

Service, and based on the data collected in the Federal Human Capital Survey, the FLRA 

ranked 5'11 out of29 small federal agencies that submitted data. This is a significant 

improvement over 2009 when it ranked last. The FLRA's 2016 Index Score is down 

five points compared to 2015, however. 

a. What steps will you take, if confirmed, to maintain progress made by the FLRA in 

recent years, and to further improve upon employee morale? 

It is good to note that FLRA is still quite high in 2017. Having been an employee at almost all 

the levels of the FLRA, I have experienced disappointment and frustration when changes would 

be made without adequate explanation as to why the changes were taking place. I will do all in 

my power to maintain and hopefully improve the progress made by the FLRA in maintaining 

employee morale. All ofFLRA leadership stqtf needs to find methods to engage employees and 

connect on a person-to-person basis to best cany out the mission of the agency. As previously 

stated, I believe employees are eager to make a difference! 

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V. Relations with Congress 

17. Do you agree without reservation to comply with any request or summons to appear and 

testify before any duly constituted committee of Congress if you are confirmed? Yes 

18. Do you agree without reservation to make any subordinate official or employee available 

to appear and testify before, or provide information to, any duly constituted committee of 

Congress if you are confirmed? Yes 

Do you agree without reservation to comply fully, completely, and promptly to any 

request for documents, communications, or any other agency material or information 

from any duly constituted committee of the Congress if you are confirmed? Yes 

VI. Assistance 

19. Are these answers your own? Have you consulted with the FLRA or any other interested 

parties? If so, please indicate which entities. 

Each answer is my own; however, I have consulted with FLRA staff to obtain helpful background 

information. 

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U.S. Senate Committee on Homeland Security and Governmental Affairs 

Pre-Hearing Questionnaire 

For the Nomination of Colleen Duffy Kil'o to be a Member of the 

Federal Labor Relations Authority 

Minority 

I. Nomination Process and Conflicts of Interest 

1. Has the President or his staff asked you to sign a confidentiality or non-disclosure 

agreement? No 

2. Has the President of his staff asked you to pledge loyalty to the President or the 

Administration? No 

3. During your tenure have you asked any federal employee or potential hire to pledge loyalty 

to the President, Administration or any other goverlll'llent official? No 

II. Bacl;:ground of Nominee 

4. Do you seek out dissenting views and how do you encourage constructive critical dialogue 

with subordinates? Yes- see a. below. 

a. Please give examples of times in your career when a subordinate disagreed with you 

and aggressively advocated their position. 

This happens on a fairly regular basis in my current position As a Judge of the Employees' 

Compensation Appeals Board, we receive draft decisions from a staff attorney. After reviewing 

the case, I may disagree with the findings of the draft. if all of the three Judges (each decision is 

assigned to a three-Judge panel) determine that the draft needs work, we either send a rewrite 

memo to the Supervismy Attorney and the staff attorney to advise of our decision, and/or allow 

the staff attorney to request a conference where we can more fully discuss the case. Through this 

process, we may learn that the factual presentation was somewhat misleading and, when 

clarified, agree with the original.finding in the draft. Other times, despite input from the staff 

attorney, we may still determine the draft should be revised to reflect the panel's direction. At 

all times, the staff attorney is treated respectfully, is provided the opportunity to make his or her 

argument, and the matter is handled strictly on a legal- not personal - basis. This is a healthy 

exchange of ideas and legal theories that can only ensure a more thoughtful and well-reasoned 

decision. 

5. Please give examples oftimes in your career when you disagreed with your superiors and 

aggressively advocated your position. Were you ever successful? 

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I have a fairly strong personality and it would not be unusual for me to forcefully advocate my 

position on matters about which I felt strongly. No specific instances come immediately to mind 

6. Please list and describe examples of when you made politically difficult choices that you 

thought were in the best interest of the country. 

Spending most of my career as a federal civil servant, I have not .found myself faced with having 

to make politically difficult choices. In my current position and in my previous position as FLRA 

General Counsel, my decisions were focused solely on the law and its interpretation compared to 

the facts presented. 

7. What would you consider your greatest successes as a leader? 

I am very proud of the pe1jormance metrics that were created at the Employees' Compensations 

Appeals Board to evaluate the quality, quantity, and timeliness of legal decisions. They were 

very .fair, easily understood and, if utilized properly, provided the staff attorney with immediate 

foedback on each and every decision submitted. 

I am also very proud of the institution of the Office oft he General Counsel training programs. 

These were devised to conserve resources and ensure predictability. Prior to these offerings, 

training was ad hoc and provided to agencies and labor unions as requested. It demanded a lot 

of time, preparation, and travel for our staff: The new courses on the Federal Service LaborManagement Relations Statute (beginner and advanced) were provided by OGC staff onsite at 

the FLRA regional offices or nearby agency space and were offered at each of the seven regional 

locations at various times throughout the year. We thought: "J.f we build it- they will come. " 

And it has been well received for nearly a decade now. The training was current, managed 

without additional travel, and at no cost to attendees. I notice that those programs are still front 

and center on the FLRA website and 1 take great pride in that program. 

And finally, I consider one of my greatest successes as a leader is to have successfUlly raised 

four wonderfitl children to adulthood. 

8. What would you consider your greatest failme as a leader? What lessons did you take away 

from that experience? 

Very early in my career when !first became a supervisor, I occasionally made decisions by 

relying on the advice of others without doing my own personal research to verifY the accuracy of 

the advice. In one instance, !found out that the advice (which was attributed to me) was 

inaccurate. I was terribly embarrassed to have been responsible for providing an incorrect 

answer. Whether that was my greatest failure, I am not sure. But since then I have always been 

cautious about taking advice without doing my own research first. Trust but verifY. Along that 

same line, it also caused me to dig deeper to .find out reasons for things before rendering a 

judgment and to more fully recognize the implications and ramijlcations of decisions. Things 

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are not always as they seem. This has made me more thoughtful in assessing all circumstances 

and facts before rendering a judgment. 

III. Policy Questions 

9. During your tenure as FLRA General Counsel, you removed from the agency website all of 

the guides that that your predecessor created (case Law, 7114 requests, ULPs etc.) that were 

designed to help agencies and unions understand their respective rights and obligations under 

the Federal Service Labor Management Relations Statute. Why were these records 

removed? 

a. If these items were removed, was that decision consistent with federal records 

retention laws and other authorities? Please explain. 

These records were removed from the website because they were outdated, were not consistent 

with the policies of the Office of the General Counsel at the time, and were not necessarily 

consistent with FLRA case law at the time. It was misleading to our constituency and I believed 

the customers should have been steered to our published FLRA decisions for current law and 

guidance. 

b. If these items were not removed, please indicate where they can be found on FLRA's 

public website. 

These items were removedfi·om the website. To the best of my understanding, all of these 

documents should still be retained in the Office of the General Counsel's historical records. It is 

also my understanding that these documents have since been updated and now appear on the 

agency website. 

c. If confinned, what do you plan to do to enslU'e that the FLRA provides helpful 

guidance to its customers? 

The training courses were implemented to ensure that agencies and unions alike would have 

access to up-to-date training on current case law. If confirmed and designated as Chairman, I 

would ensure that these programs are maintained. The best guidance the FLRA can offer to its 

customers, however, is well reasoned, clear, understandable decisions. This ·will be my highest 

priority. 

1 0. During your tenure as the FLRA General Counsel, the FLRA was rated at or near the bottom 

in employee satisfaction and best places to work, based on the Federal Employee Viewpoint 

Survey (FEVS) and the Partnership for Public Service rankings. Now, the FLRA is rated as 

one of the top places to work among the small agencies. If confirmed, how do you plan to 

continue the excellent work done over the past decade to improve and preserve the FLRA as 

a leader in good personnel management? 

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Open communication is one of the best methods of helping employees feel/ike they are part of 

the agency and as if they have a voice. If confirmed and designated Chairman, I will strive to 

maintain that posture and will work toward continuing the progress in maintaining FLRA as a 

great place to work. 

11. In October 2017, FLRA summarized what they consider to be the most serious management 

and performance challenges facing the FLRA in FY 2018. These management challenges 

include: (1) Information Technology Security; and (2) Proper Handling of Records. 

a. If confirmed, how will you ensure that FLRA is vigilant in establishing an 

environment to monitor potential Information Technology (IT) risks, threats, and 

vulnerabilities? 

This is a critical, top priority concern. If I am confirmed and designated Chairman, I would 

immediately assess potential IT risks, threats, and vulnerabilities and, if found, devise and 

implement mitigation strategies. In FLRA documents I teviewed in response to this question, I 

noted that just recently the FLRA closed recommendations dating back to 2009, 201 I, and 2014 

relating to IT and privacy. I am concerned that it has taken so long to close out these 

recommendations made by the /G. I am aware there are old recommendations that are still 

pending. 

b. If confirmed, how will you promote and ensure proper handling of records (hard copy 

and electronic) by stan: and verify that various authorities and capabilities are 

properly assigned, documented, managed and monitored? 

Agency documents indicate that there are open recommendations from the Inspector General on 

the proper handling of and access to agency records. FTRA has a multi-year plan for 

compliance with OMB requirements that is to be completed in 2019. If confirmed and 

designated as Chairman, I will review and assess agency efforts to determine whether this 

compliance can be expedited. I would ensure that FLRA maintains and manages all records in 

accordance with Federal law and regulations. 

I 2. Former FLRA member Pizzella, in his dissents and concuiTences, frequently criticized union 

patiies to a dispute for pursuing positions or remedies that he viewed as wasting government 

resources, costing too much, being ill-motivated, or at odds with common sense-factors not 

grounded in the law. 

a. What is your view on deciding cases based on the facts as established in the record, 

and the law (the statute and precedent)-as opposed to independent views of right 

and wrong, how the government ought to work, and/or the role of unions? 

In my review of each case before me, I will do as 1 always have done - consider the facts, apply 

the law, and render a decision consistent with the statut01y and regulatory provisions for which I 

am held responsible. The Federal Service Labor-Management Relations Statute does provide, 

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however, that: "The provisions of [the Statute] should be interpreted in a manner consistent with 

the requirement of an effective and efficient government." 5 U.S. C.§ 7101(b). 

b. If government efficiency and effectiveness are legitimate considerations in assessing 

the merits of a dispute, what role do you believe conduct plays in an agency's 

collective bargaining, grievance procedure, and efficiency? 

As I have said previously, l believe many disputes begin with conduct- hurt feelings, insensitive 

comments, lack of communication, etc., and can be the genesis of larger issues between the 

parties (labor and management). 

13. The Collaboration and Alternative Dispute Resolution Office (CARDO) at FLRA provides 

intervention a11d dispute resolution services, which frequently helps parties resolve disputes 

short of a formal decisio11, thereby saving the parties' and FLRA's resources (government 

resources) that would otherwise be devoted to litigating and deciding the dispute. Do you 

plan to continue supporting CADRO and offering the parties assistance in establishing/ 

maintaining constructive relationships? 

1 believe dispute resolution services have been an integral component of the work of the 

Authority, and I support it. However, if I am confirmed and designated Chairman, I will be in a 

better position to understand how the program works at FLRA and assess the advantages and 

disadvantages how the services are offered. 

14. Please describe what impact proposed federal budget cuts, if implemented, will have to 

FLRA's ability to provide training to federal agencies and unions in understanding their 

rights and responsibilities under the Civil Service Reform Act and other relevant authorities? 

As I mentioned earlier, I was very proud of the free training courses that I instituted in the Office 

of the General Counsel forftderal agencies and unions to better understand their rights and 

responsibilities under the Statute. I am pleased to see they are still very active. {f confirmed as 

a Member and designated Chairman I would work to ensure that online training courses, both in 

the OGC and in the FLRA headquarters, be maintained, regularly updated, and retained online 

to reduce travel costs and any other costs associated with providing this training live, while still 

making them equally available to both unions and federal agencies. 1 would also look for ways 

to leverage video-teleconftrencing capabilities in order to convey training to a wider audience 

with less expense to the Government. 

15. Please describe what impact proposed budget federal budget cuts, if implemented, will have 

to federal agencies' ability to train managers and employees regarding their rights and 

responsibilities under the Civil Service Reform Act and other relevant authorities? 

I would refer you to answer #14 above. Our courses, if available online, should be equally 

accessible to unions and federal agencies for training managers and employees of their rights 

and responsibilities under the Statute and other relevant authorities. 

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16. Please describe any previous experience-in the public or private sectm~with handling 

whistkblower complaints, and what steps you took to ensure those individuals did not face 

retaliation and that their claims were thoroughly investigated? 

I do not recall any circumstances where I had to handle any type ofwhistleblower complaint. I 

would ensure that the matter would be investigated thoroughly, in accordance with law and 

regulation, that the confidentiality of the complainant would be of paramount importance, and 

that there would be no retaliation for the complainant. 

17.lf confirmed, how will you ensure that whistleblower complaints are properly investigated? 

See my answer to #16 above. 

IV. Accountability 

18. During your career as a federal employee, have you ever used a personal email account or 

device to conduct official government business? No. 

a. If so, please describe your general practice for doing so, and what specific steps you 

have taken to ensure that federal records created using personal devices and accounts 

were preserved. 

19. During your career, has your conduct as a federal employee ever been subject to an 

Investigation or Audit by an Inspector General? lf so, please describe. 

1 am quite sure that I have never been the subject ofan investigation or audit by an Inspector 

General focused on my conduct as a Federal employee. However, during my short tenure 

as General Counsel oft he FLRA, there were Inspector General matters not related to my 

conduct that would come to my attention. I always treated the matters with priority and 

responded specifically to each and every one. 

20. During your career, has your conduct as a federal employee ever been subject to an 

investigation by the Office of Special Counsel? If so, please describe. No. 

21. During your career as a federal employee, have you ever declined to implement 

recommendations made by the Office of Inspector General, the Office of Government Ethics, 

the Office of Special Counsel or the Government AccOlmtability Office? If so, please 

describe. 

I always took any recommendations seriously and, to the best of my knowledge, implemented any 

recommendations. 

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22. If confirmed, do you pledge to implement recommendations made by the Office of Inspector 

General, the Office of Government Ethics, the Office of Special Counsel and the 

Government Accountability Office? 

Yes, I will take seriously and make every effort to implement every such recommendation 

provided they are within the purview of my authority, within the budgetary authority of the 

agency, and are not inconsistent with statutory, regulatory or other agency policy which would 

warrant otherwise. 

V. Relations with Congress and the Public 

23. If confirmed, how will you make certain that you will respond in a timely manner to Member 

requests for information? 

I will make it my priority. 

24. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from the Ranking Member of any duly constituted committee of the Congress? 

Yes 

25. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from members of Congress? Yes 

26. If confirmed, do you commit to take all reasonable steps to ensure that you and your agency 

comply with deadlines established for requested information? Yes 

27. If confirmed, do you commit to protect subordinate officials or employees from reprisal or 

retaliation for any testimony, briefings or communications with members of Congress? Yes 

28. If confirmed, will you ensure that your staff will fully and promptly provide information and 

access to appropriate documents and officials in response to requests made by the Office of 

Inspector General, Office of Government Ethics, the Office of Special Counsel, the 

Government Accountability Office (GAO) and the Congressional Research Service? Yes 

29. If confirmed, will you agree to work with representatives from this Committee and the GAO 

to promptly implement recommendations for improving [agency's] operations and 

effectiveness? Yes 

30. If confirmed, will you direct your staff to fully and promptly respond to Freedom of 

Information Act requests submitted by the American people? 

Yes, in accordance with the parameters of the Freedom of Information Act. 

31. If confirmed, will you ensure that political appointees are not inappropriately involved in the 

review and release of Freedom oflnformation Act requests? 

Senate Homeland Security and Governmental Affairs Committee Page 15 
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Yes, J will ensure the agency follows the parameters of the Freedom of Information Act. 

VI. Assistance 

32. Are these answers your own? Have you consulted with GSA or any other interested patties? 

If so, please indicate whieh entities. 

Each answer is my own; however, I have consulted with FLRA staff to obtain helpful background 

information. 

I, Ccllun ""D~<I'fil Kr l<.c , hereby state that I have read the foregoing Pre-Hearing 

Questionnaire and Supplemental Questionnaires and that the information provided therein is, to 

the best of my knowledge, current, accurate, and complete. 

Senate Homeland Security and Governmental Affairs Committee Page 16 
66 

:\1ember 

Employees' Compensation Appeals Board 

L "'laturc and Purpose of Work 

A Introduction: 

Incumbent serves as t1 Member of the Employees' Board (the 

Board). The Board was created to decide appeals from final decisions ot'the Director. 

Office of Workers' Compensation Programs (the Ollie.:) in cases under the 

lcderal Employees· Compensation Act. The Chairman and the two 1\lembcrs urc 

appointed by the Secretary of l.abor, pursuant to Scction 8149 of the Federal Employ~cs · 

Compensation Act. which provides that rules and shall lor an 

Employees· Compensation Appeals Board of three individuals designated tlr 

by the Secretary with authority to hear and. subject to applicable law and the rules and 

regulation;; of the Sccrt.:tary, make f1nal decisions on appeals taken from determinations 

and awards with respect to claims of employees.'' This /\ct coYCrs all Federal 

and certain other categories of employees. such as local hm enl(m.:emem Officers who 

arc injured or killed while enforcing Federal law. Appeals may be taken to the Board on 

all questions of law and fact and on the exercise or failure to exercise discretion. 

The Board pcrtonllS a quasi-judicial !'unction in deciding auu~:cm:u 

the Board arc contained in decisions and orders or the action of the 

Oftlce, remanding ca;;es for further dc\clopmcnt or reversing the Office action. The 

Board does not receive or reviel'\ new evidence. but decides the case on the basis of the 

record as it existed when the Onicc rendered its decision. Decisions of the Board arc l1nal 

and not subject to either administrative or court review Jn this respccL the Board is 

unique among all j urisdietions in the t.:nited States. 

B. Duties: 

As a Member of the Board, incumbent scrl'cS as Assistant to the Chairman in all matters 

of the Board as assigned. including policy decisions. and 

disciplinary matters. union matters and all other management duties of the Chairman. 

Incumbent participates in rendering decisions of the Board. Each decision of the Board i~ 

set forth in a written opinion which sets forth the basis for the decision. l he appeals are 

assigned by the Chairman to a thrce-\1cmber of no less than one 

\lember (who scn·es as Chairman of the Panel) and up to two Alternate Members. 

The Board is assisted by legal starr 1n e\'ery case assigned the Chairman. the 

incumbent reviews the case record, the of the and the draft decision and 

order submitted by the incumbent and evaluates the 

and ta~;tual aspects of each case and conducts or has conducted necessary research. 

Research includes c;;,amination of the law. and Board 

decisions and workers' cas~Cs decided under other or 

statutory or common law 
67 

Incumbent participates with the Chairman. \kmb,~rs and ,\!tcrnate \<!embers at oral 

argument presented by counsel for the Oftice and or their authorized 

represcntatiYes. The Chairman designates \\hich Board Member '"ill 

oral argument. Incumbent may those Jppearing t(lr the purpose 

aspects of the case which need further explanation. 

Incumbent participates with the Chairman, \!kmbers and Alternate :\"!embers in reaching 

a decision on cases before the Board. Fach opinion sets forth salient issues. facts. 

jurisdiction. legal precedent and analysis. 

Board decisions arc comprchcnsiYe and constitute: exclusive precedent to guide the Oftlcc 

in adjudication of claims and serve as reference to injured \lorkers· representatives. 

workers· compensation specialists. and cHher indi,iduals. Opinions arc published in 

volume form. Volume sets are maintained by the \Vorkers· Compensation Commission 

of each State. by university and l;w; libraries. by various go\'ernment agencies, b:-

cmplt,yec organizations and by attorneys and other interested in workers· compensation 

interpretations. 

Any petitions for reconsideration are returned to the original panel t(;r review and 

determination as to whether the original decision should be reopened. 

All fc<!s for legal services performed in connection with the appeals require approval of 

the Board. The Chairman and the Board \kmbt.:rs approve such fees based upon v\-bat is 

regarded as fair and reasonable under the (ircumstanc~s. Incumbent joins \Vith the 

Chairman and the other Board \1cmher in ruling on all procedural motions. such as 

motions to dismiss appeals due to lack ofjurisdiction. motions to remand f(!r further 

development by the OtTicc. 

Incumbent is instrumental in working with the Chairman and the other :v!cmber ofthc 

Board in establishing policies to he bv the Board. Incumbent aclvises the 

Chairman on administrative or procedural rules and method;:. 

l L Scope and Effect of Work 

The jurisdiction of the Board includes all civilian employees of the Federal Government. 

Federal Corporations. such as the T cnncssce and the Federal 

Insurance Corporation. t7.S. Postal Service as wdl a' local lavv enforcement officers 

injured or killed in the enforcement of Federal law Board dc:cisions represent th<: 

ofthc Panel. 

The work of the Board is crm:ial because of the number co\ ere d. tbe 

amount or compensation irnolv-ecl and the complexity and of the issues 

invol\'cd. Bnard decisions. which an: final and not subject to revi(;'w either 

administratively have t(reat upon a program whieh invoh esC\ cry 
68 

federal agenc:. millions ofemplo;ees and S<:\cral billions of dollars in benefits. They 

serve us precedent setting decisions in th.; field of Federal Employee:;' Compensation just 

as decisions of the Courts serve as legal precedents under State workers' 

programs. Because of the numbers of cmplo~ecs covered by tlw Federal Go1ernmcnt. 

decisions of the Board have an precedent effect upon the administration of 

State workers' compensation Jaws. 

!JL Supervision and Guidance Received: 

As a member of a quasi-judicial body, incumbent Bt1ard :v!ember exercises completely 

indepcndem judgment in discharging duties and responsibilities. subject to the <tpplicablc 

law and the rules and regulations of the Secretary of Labor. indctding any dissenting 

opinion (l<.;cmcd necessary or desirable. The Chairman of the Bc,ard is the admini$lrativc 

supervisor for all other matters. such as leave time and attendance. 

of work. payroll and all other management issueo. 

JV. Mental Demands 

The position requires ability to appraise. evaluate. and adjudge diflicult 

issues presented f<Jr judgment, ability to grasp the fundamentals of complex technical 

subject matter, and to exercise good judgment. judicial temperament. and humane 

approach. Demonstrated and experience in the Jidd oC\wrkcrs· 

and in-depth background arc 

V. Personal \Vork Contacts 

It is essential, at Board oral arguments and in at decisions vYith the Chairman. 

Board \!embers and other i\lternate Board :vbnbers. that the high<:~l standards of 

juJiciousncss. and equanimity be exercised. 
69 

Senator Heidi Heitkamp 

Post-Hearing Questions for the Record 

Submitted to Hon. Colleen D. Kiko 

Nominations of lion. Ernest W. DuBester, Hon. Colleen D. Kiko, and James T. Abbott to 

be Members, Federal Labor Relations Authority 

Tuesday, November 7, 2017 

1. In your questionnaire. you seemed to focus on communication challenges as one of the 

chief challenges that cause unfair labor practice complaints. 

• What role can the FLRA play in improving communication between labor and 

management? 

1 believe that the best role the FLRA can play in improving communication between the parties 

is to speak directly tl·om our decisions and present clear. consistent legal precedent. 

We can also play a significant role in improving communication between the parties by otiering 

parties up-to-date. current training presenting the precedent in the FLRA decisions. 

• Also, improving communication is a tricky goal since every person has a different 

definition of what improved communication means. What do you think helps 

improve communication the most'' 

I believe that communication can best be improved through respecting each other, appreciating 

and understanding each other's opinions, and listening to different viewpoints. 

2. There is an enormous backlog of cases at FLRA. Please explain what steps you will take 

to address this and what will you do to foster collaboration among all components of the 

agency? 

Personally, I am unaware of any enormous backlog at the FLRA. FLRA stafi has recently 

advised me that the Authority has a backlog of less than 50 cases. I am also unaware of any 

backlog pending with the General Counsel. However, when I arrive at the FLRA, I will assess 

that situation, review current case processing procedures and, together with the other Members 

and the General Counsel, as appropriate, collaborate on the best practices necessary to move 

cases and eliminate any backlog. In my current agency, we instituted performance standards that 

measured quality, quantity, and timeliness of output. That is a difficult feat with legal decisions, 

but we were successful in improving all three parts of that equation. l will make it a priority to 

raise the issue of performance standards and metrics for all agency positions with both 

management and employees to elicit their comments on how to deal with any case backlogs 

and/or to increase general el1iciencies. 

• \Vhat do you consider the role of the FLRA CG Regions to be in the process') 

The Office of the General Counsel is a separate entity l!·om the Authority, with 

respect to case processing. However, any backlog that exists at the GC level could 
70 

ultimately affeet the Authority component- as many of their actions continue through 

the pipeline to the Authority for decision. I would include the General Counsel in the 

performance/efficiency discussions, to determine the best method to ensure that 

quality, quantity, and timeliness were aspects of the performance plans. 

• How important is it to use these of1ices to interact with the public? 

I will presume that the term ''these offices" refers to the Regional Offices of the GC. 

In that regard, I believe that the staff members in the Regional Offices represent the 

face of the GC. They have more interaction with our constituents than the Authority 

and I would consider the interaction of these offices as crucial in interfacing with the 

public. 

• Is it your opinion that the number of regional offices should increase or decrease? 

Please feel free to explain your answer. 

I have been away from the General Counsel's office for nine years, so it would be 

presumptive of me to have an opinion on whether the number of regional offices 

should increase or decrease. As the Chairman of the agency, however, it would be 

my responsibility to manage the funds appropriated to the agency. With that in mind, 

the General Counsel would be the point person to provide the information necessary 

to determine \vhether the number of regional ofl1ces was right-sized based on the 

workload and staffing patterns and the costs of maintaining seven regional oftlces. 

These discussions arc on my priority list. 

3. Would you seek appropriate funding for the FLRA to perform its duties as required under 

the law and to vigorously enforce federal labor law? 

Yes, as Chairman of the agency, I will vigilantly monitor the funding levels of the FLRA in 

conjunction with the mission that we have been provided in an effort to ensure that the FLRA 

can vigorously enforce the Federal Labor-"v1anagement Relations Statute. 

4. Will you please describe the situation that lead to your prior departure from the FLRA in 

March 2008? 

I was offered an opportunity to return to the Employees' Compensation Appeals Board. 

• Was there a succession plan created prior to your departure') 

Yes. I discussed my employment opportunity with the White House and, shortly after we set 

my departure date of March 2008, on April 2, 2008 President George W. Bush nominated 

Brandon Chad Bungard for the FLRA General Counsel position. 

5. What are your views are on transparency and communication with the public'> 
71 

l believe that my role as Chairman of the FLRA is to ensure that the FLRA follows the 

mandates of the Statute. Our decisions speak for themselves in precedent and legal policy. 

That is the best way to be transparent and to communicate with the interested public, the 

parties, and the shareholders (taxpayers). Also, through training courses otlered to the 

parties, we should be helping the parties best understand the guidance that is provided 

through our decisions. 
72 

OPENING STATEMENT OF HON. ERNIE DUBESTER OF VIRGINIA TO BE A MEMBER 

OF THE FEDERAL LABOR RELATIONS AUTHORITY 

BEFORE THE COMMITIEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

NOVEMBER 7, 2017 

Mr. Chairman and Members of the Committee: 

I greatly appreciate the opportunity to come before this Committee again for its consideration 

of my nomination to be a Member of the Federal Labor Relations Authority (FLRA). I also would like to 

thank the Committee's staff for their work and assistance in reviewing my nomination and scheduling 

this hearing. 

Before making a brief opening statement, I would like to introduce my wife, Karen Kremer. In a 

few months, we will celebrate our 30'" Anniversary. When I first met Karen, she was working for 

Senator Howell Heflin on the Senate Judiciary Committee. So this Body will always hold a special, 

personal meaning in my life. 

I also want to recognize the presence here this morning of my colleagues from the FLRA, 

including those of my personal staff. These dedicated public servants, as well as many FLRA staff who 

are not present, are the key to the FLRA's many successes in recent years. 

I am also pleased to appear with Colleen and James who, hopefully, should the Senate confirm 

us, will soon be my new colleagues. 

Mr. Chairman, this is the fifth time I have had the privilege to come before the Senate after 

being nominated by a President for a position of public trust. During the nineties, I was nominated 

twice to serve as Chairman, and Member, of another independent agency, the National Mediation 

Board. And, this is the third time that I have had the honor to come before this Committee after being 

re-nominated by President Trump to continue serving as a Member of the FLRA. 

I have served as a Member for over eight years. And I served as Chairman for most of 2013. 

The last eight years reflect many accomplishments at the FLRA. Exercising our statutory 

responsibility to provide leadership in labor-management relations, we have engaged in numerous 

outreach, facilitation and training activities which include the delivery of a variety of training sessions to 

tens of thousands of labor and management representatives in the Federal Sector community. During 

this period, we have also made timely issuance of decisions a major priority. 
73 

In addition, with an agency focus on human capital initiatives, such as training and development, 

performance management, and work-life balance, employee morale has improved dramatically. For the 

last two years, we have ranked in the top 5 overall in the Partnership for Public Service ran kings for 

"Best Places to Work in the Federal Government." And in 2015 and 2016, we received #1 rankings in the 

specific categories of teamwork and effective leadership. 

Mr. Chairman, with over 40 years of experience in labor-management relations, working as a 

public servant, advocate, mediator, arbitrator, and academic, over 25 of those years are in the Federal 

sector. I remain strongly committed to the FLRA's mission and to the importance of stable, constructive 

labor-management relations in the Federal sector. And, if confirmed, I will continue to work tirelessly so 

that the FLRA is recognized by the Federal sector's labor-management community as one of the most 

effective and efficient agencies in the Federal government. 

Again, I appreciate the opportunity to appear before you and I would be pleased to answer any 

questions that you have. 

2 
74 

UNITED STATES OFFICE OF 

GOVERNMENT ETHICS 

REDACTED 

* ------------------------------------------

The Honorable Ron Johnson 

Chainnan 

Committee on Homeland Security 

and Governmental Affairs 

United States Senate 

Washington, DC 20510 

Dear Mr. Chainnan: 

October !2, 2017 

In accordance with the Ethics in Government Act of 1978, I enclose a copy of the 

financial disclosure report filed by Ernest W. DuBester, who has been nominated by 

President Trump for the position of Member, Federal Labor Relations Authority. 

We have reviewed the report and have obtained advice from the agency concerning any 

possible conflict in light of its functions and the nominee's proposed duties. Also enclosed is an 

ethics agreement outlining the actions that the nominee will undertake to avoid conflicts of 

interest. Unless a date for compliance is indicated in the ethics agreement, the nominee must 

fully comply within three months of confirmation with any action specified in the ethics 

agreement. 

Based thereon. we believe that this nominee ls in compliance with applicable laws and 

regulations governing conflicts of interest. 

Sincerely, 

David J. A pol 

Acting Director and Genera! Counsel 

Enclosures REDACTED 

1201 NEW YORK AVE NW·SUI'I'E SOO·WASHfNGTON DC·20005 
75 

Fred B. Jacob 

Solicitor and Designated Agency Ethics Official 

Federal Labor Relations Authority 

1400KSt., NW 

Washington, DC 20424 

Dear Mr. Jacob: 

October 4, 2017 

The purpose of this letter is to describe the steps that I will take to avoid any actual or 

apparent conflict of interest in the event that I am confirmed for the position of Member, Federal 

Labor Relations Authority. 

As required by 18 U.S.C. § 208(a), I will not participate personally and substantially in 

any particular matter in which I know that I have a financial interest directly and predictably 

affected by the matter, or in which I know that a person whose interests are imputed to me has a 

financial interest directly and predictably affected by the matter, unless I first obtain a written 

waiver, pursuant to-18 U.S.C. § 208(b)(l), or qualify for a regulatory exemption, pursuant to 

18 U.S. C.§ 208(b)(2). I understand that the interests of the following persons are imputed to 

me:· any spouse or minor child of mine; any general partner of a partnership in which I am a 

limited or general partner; any organization in which I serve as officer, director, trustee; general 

partner or employee; and any person or organization with which I am negotiating or have an 

arrangement concerning prospective employment. 

I will meet in person with you during the first week of my service in the position of 

Member in order to complete the initial ethics briefing required under 5 C.F.R. § 2638.305. 

Within 90 days of my confirmation, I will document my compliance with this ethics agreement 

by notifying you in writing when I have completed the steps described in this ethics agreement. 

If I have a managed account or otherwise use the services of an investment professional 

during my appointment, I will ensure that the account manager or investment professional 

obtains my prior approval on a case-by-case basis for the purchase of any assets other than cash, 

cash equivalents, investltlent funds that quality for the exemption at 5 C.F.R. § 2640.20l(a), or 

obligations of the United States. 

I understand that as an appointee I will be required to sign the Ethics Pledge (Exec. Order 

no. 13770) and that I will be bound by the requirements and restrictions therein in addition to the 

commitments I have made in this ethics agreement. 
76 

I have been advised that this ethics agreement will be posted publicly, consistent with 

5 U.S.C. § 552, on the website of the U.S. Office of Government Ethics with ethics agreements 

of other Presidential nominees who file public financial disclosure-reports. 

Sincerely, 

Ernest W. DuBester 
77 

REDACTED 

HSGAC BIOGRAPHICAL QUESTIONS FOR 

EXECUTIVE NOMINEES 

1. Basic Biographical Information 

Please provide the following information. 

0 
78 

Married 

X 

Separated 

0 

2 

0 0 
79 

2. Education 

List all post-secondary schools attended. 

Columbus 

School of 

Law, 

Catholic 

Univ. of 

America 

Georgetown 

Univ. Law 

Center 

·, Type of School' · ... · 

(vocational/technical/trade school, 

collcgc/university/milihlry Coli~~~ 

cor:respondence/distance/ex:tension/onliile 

school) 

College 

University 

University 

·. (monttiiyear) (c!le~k oo!'.ifesti!iJa,l<:l' 

'( check"present''. bo~ 

ir still in school > 

E$t Est 

Augustfl%8 o Mny/1972 

Est E>t I' resent 

Aug.ust/1972 0 Mny/1975 0 

Est Est Present Sept,/!978 May 1980 

---Est Est Present 

0 

3 

J.D. May 

1975 

LL.M. May 

(Labor 1980 

Law) 
80 

3. Employment 

(A) List all of your employment activities, including unemployment and self-employment. 

If the employment activity was military duty, list separate employment activity periods to 

show each change of military duty station. Do not list employment before your 18th 

birthday unless to provide a minimum of two years of employment history. 

·:Type of Employment 

: \f;ciiv~ 1)1ilitary Duty.Station, :, -·~ati~n!jl Guard/Reserve, 

. US~~S Cornmissiimcd Corps, 

,:.:.Ot!led':ederal etnploymcnt, 

' · Stti\e•(lpvemment (Non· 

;:!l,~?r~:~~p!oyment), Self· 

•t<(mp.l,9Y.merit;Unemploy1''ent, 

,. :·.'federarcontractor, Non· 

•',: ·Gi>v~mirieht Employment 

(excluding self-employment), ·.· . Other 

Name ofYoui-· · 

Employer/ 

Assigned Duty 

Station 

MdstRecent 

. Po'sition: 

Title/Rank 

Other federal employment Federal Labor Member DC Est 1-~t 

Relations Authority August 2G09 o Present 

~~77~--~--~i·~(~FL~RA~)------~~~~--~~---4~==·= J Other federal employment FLRA Chairman DC Januory zot~7--J.~J,-,-",-"·-,-o~t7---

1 Other federal employment FLRA 

Other federal employment National Mediation 

Board(NMB) 

Non-Government 

Employment 

George Mason 

University School of 

Law(GMUSL) 

(now Anton in Scalia 

Law School) 

Chairman 

Mediator 

Distinguished 

Professor of 

Law(and 

Chair of 

Dispute 

Resolution 

DC Est Est Jau. 2013 Nov. 2013 

July 2005 

Est Est 

August 2009 o DC 

Est 

August 2001 July 2(105 Ari.,VA Est 

Program) hs:ieJ"'r-=em=pl;:o:::y=,n=e,~,t~---1-;,W;ch~il;::-e-:a::-t G;:;-;:M·;;u"s"'L--!-7A'-;rb:l;itr=-'a:'Ot~or-&;;---t"'A,..r-;-I.,"'V;-;-;-A-t----=Es(+---.,.E.,.,t-J Mediator Aug. 2001 July zoos 

Other Federal 

employment 

Non-Federal 

employment 

Non-Federal 

employment 

National Mediation 

Board 

Catholic Univ. 

School of Law 

AFL-ClO 

Chairman (and 

Member) 

I 

Wash. 

DC 

faculty C 

counsel C 

Nov. 199J Aug. 2001 

1997 2001 

1984 1993 

Adjunct ~~ ash. 

J 

Legislative ash. 

-------- ------- -----"-·------]__ __ _ 4 
81 

Non-Federal Law fi•·m ofHighsaw Associate Wash. 198! 1984 

employment & Mahoney DC 

National Labor Counsel to Wash. 1975 [981 

Other Federal Relations Board Chairman (and DC 

employment Member) 

Field attorney Los 1978 1978 

Angeles 

Regional 

I 

Office 

Legal 

Assistant to Wash. Summor<f !914 & I Spring of 

Board Member DC ~;;~~time Fall of 1975 

(B) List any advisory, consultative, honorary or other part-time service or positions with 

federal, state, or local governments, not listed elsewhere. 

Date serviCe : ' Date Service::Bnded. 

'·Name of Government Name of Position · Begim · · (J!lontlilye\lrJ:Ich~ek.box' · · .. • (rriontliiy~ar) if,estiinate)'(check · · 

;;' / Entity (c~:~~t'e;i~~:- ''pre:~_Zi~ r.;T""a""iw-a-n""M-cc.-in-cis_tr_y_o_f~-+Hco-ea-d""o-f""A.,-m-e-,ri:-c-an--;o;Dc.e""le-g""at io-n-(.,.a'"lo-n-g-w""'i"'th-f-'--==='-"'' E" r'~'"' 

Labor & Taipei 8 State Labor Commissioners) NovemberZOl4 November20I 4 0 

Economic & Cultural 

Representatives Office 

in U.S. 

International Labor Org. Chairman, Tripartite Conference on 

"Consequences for Mgmt. & Personnel of 

Restructuring of Railways" 

April 1994 

4. Potential Conflict ofinterest 

Est Est Present 

April 1994 

F..st Est Present 

(A) Describe any business relationship, dealing or financial transaction which yon have had 

during the last 10 years, whether for yourself, on behalf of a client, or acting as an agent, 

5 
82 

that could in any way constitute or result in a possible conflict of interest in the position to 

which you have been nominated. 

In connection with the nomination process, I consulted with the Office of Government Ethics 

and the Federal Labor Relations Authority's designated agency ethics officer to identify potential 

conflicts of interest. Any potential conflicts of interest will be resolved in accordance with the 

terms of an ethics agreement that I entered into with the FLRA's designated agency ethics officer 

and that has been provided lo this Committee. I am not aware of any other potential conflicts of 

interest. 

(B) Describe any activity during the past 10 years in which you have engaged for the 

purpose of directly or indirectly influencing the passage, defeat or modification of any 

legislation or affecting the administration or execution of law or public policy, other than 

while in a federal government capacity. 

I have engaged in no such activity. 

5. Honors and Awards 

List all scholarships, fellowships, honorary degrees, civilian service citations, military 

medals, academic or professional honors, honorary society memberships and any other 

special recognition for outstanding service or achievement. 

While at the NLRB, I received Distinguished Service and Sustained Superior Performance Awards in 

1978, 1979, & 1980. 

6. Memberships 

List all memberships that you have held in professional, social, business, fraternal, 

scholarly, civic, or charitable organizations in the last 10 years. 

Unless relevant to your nomination, you do NOT need to include memberships in 

c!Jaritable organizations available to the public as a result of a tax deductible donation of 

$1,000 or less, Parent-Teacher Associations or other organizations connected to schools 

attended by your children, athletic clubs or teams, automobile support organizations (such 

as AAA), discounts clubs (such as Groupon or Sam's Club), or affinity 

memberships/consumer clubs (such as frequent flyer memberships). 

U.S. Sup•·eme Court 8/!/80- Present Attorney & Counsellor (Member) 

r---------------------~--------------------~--------------·------~ 

District of Columbia Bar Ass'n Since 1980 Member 

6 
83 

--

New Jersey State Bar Ass'n Since 1976 Member (now inactive) 

--

Florida State Bar Ass'n Since 1976 Member (now inactive) 

Northern Virginia Mediation 2003-2008 Board of Directors 

I Services 

Labor & Employment Relations On & Off Since 1994 Currently, Member of Executive 

Ass'n (D.C. Chapter) Advisory Board 

American Bar Ass'n On & Off since 1976 Member 

(currently not a member) 

Ass 'n of Conflict Resolution 2002-2009 Member 

Society of Federal Labor & 2003-Present Member 

Employee Relations Professionals 

Boston College Alumni Club of Since 1976 Member (and President 1984-92) 

Metropolitan Washington, DC 

Virginia Supreme Court, Richmond, 2002-0ct. 2008 Certified Mediator 

VA 

7. Political Activity 

(A) Have you ever been a candidate for or been elected or appointed to a political office? 

NO 

Name of Office I Eh!etedtA\i~oi~teo/ 1 Candtdatc ·only 

7 
84 

(B) List any offices held in or services rendered to a political party or election committee 

during the last ten years that you have not listed elsewhere. 

'1\i~;n~·~fParty/Eiection 

<.Committee 

Presidential Campaign of 

Barack Obama 

Office/Services Rendered 

Worked as a volunteer in 

Virginia. Services rendered 

included phone banks, 

canvassing, & literature 

distribution. 

. Responsibilities· 

2008 

1--------+---------+---------+---···--

(C) Itemize all individual political contributions of $200 or more that you have made in the 

past five years to any individual, campaign organization, political party, political action 

committee, or similar entity. Please list each individual contribution and not the total 

amount contributed to the person or entity during the year. 

Name of Recipient 

Presidential Campaign of Barack Obama $600 ($300 2012 

twice) 

8 
85 

8. Publications and Speeches 

(A) List the titles, publishers and dates of booi!.S, articles, reports or other published 

materials that you have written, including articles published on the Internet. Please provide 

the Committee with copies of all listed publications. In lieu of hard copies, electronic copies 

can be provided via e-mail or other digital format. 

Title Publisher Date(s.fMPubiH!~tion · 

In the magazine HPerspectives on Labor & Employment Relations Summer 20 11/Winter 2012 issue 

Work", published article entitled: Ass'n 

"Collective Bargaining: A Critical 

Value of a Democracy." 

(article attached) 

9 
86 

(B) List any formal speeches you have delivered during the last five years and provide the 

Committee with copies of those speeches relevant to the position for which you have been 

nominated. Include any testimony to Congress or any other legislative or administrative 

body. These items cnn be provided electronically via e-mail or other digital format . 

TitleffoJliC Place/Audierice . :,(· .·.· .. ,,· .; Dal~ts)<ir S!le~cll~<· 

Town Hall Meeting with ·---'-- the Federal Annual Federal Dispute Resolution August9,2017 

Labor Relations Authority (FLRA) (FDR) Training Conference, San 

Francisco, CA 

Town Hall Meeting with the Federal Annual FDR Conference, New August 3, 2016 

Labor Relations Authority (FLRA) Orleans, LA 

Keynote address-Reprised theme Arlington, VA, to 401 Annual April 18, 2013 

fi·om article cited in my response to Symposium of the Society of 

8(A) Federal Labor & Employment 

Relations Professionals 

10 
87 

I 

---

(C) List all speeches and testimony you have delivered in the past ten years, except for 

those the text of which you are providing to the Committee. 

--

,: Title Phice/Audience "" 

Date{~) o'f.SQee~h ":'< 

People-Relationships-Effective Office of Personnel Management, 5/21/13 

Communication. Consistent with Washington, DC. Employee 

Conference's Theme "Back to the Relations Policy Series, 

Basics", Fundamental 

Considerations Can Help Make You 

a Better Practitioner in all Aspects of 

Labor-Management relations 

FLRA Update American Bar Ass'n, Washington 4/10/13 

DC. Federal Sector Committee of 

Labor & Employment Law Section 

Why Use of Alternative Dispute DC Chapter ofLabor & l/22113 

Resolution Is So Effective at the Employment Relations Ass'n 

FLRA 

Use ofiTEV (Internet, Telephonic& NYU School of Law, Technology in 4/25/l2 

Electronic Voting) in Representaion Practice & Workplace Committee of 

Matters Labor & Employment Law Sec. of 

ABA 

11 
88 

FLRA Update Federal Sector Committee, ABA 1!14/10 

Labor & Employment Law Sec., 

Chicago, Ill. 

FLRA Update Federal Sector Committee, ABA 

Labor & Employment Law Sec., 

4115/l 0 

Washington, DC 

I 

I 

9. Criminal History 

Since (and including) your 18ui birthday, has any of the following happened? 

Have you been issued a summons, citation, or ticket to appear in court in a criminal proceeding against you? 

(Exclude citations involving traffic infractions where the fine was less than $300 and did not include alcohol or 

drugs.) 

No 

Have you been arrested by any police officer, sheriff, marshal or any other type oflaw enforcement official? 

No 

Have you been charged, convicted, or sentenced of a crime in any court? 

No 

Have you been or are you cutTently on probation or parole? 

No 

Are you currently on trial or awaiting a trial on criminal charges? 

No 

To your knowledge, have you ever been the subject or target of a federal, state or local criminal investigation? 

No 

If the answer to any of the questions above is yes, please answer the questions below for 

each criminal event (citation, arrest, investigation, etc.). If the event was an investigation, 

12 
89 

where the question below asks for information about the offense, please offer information 

about the offense under investigation (if known). 

A) Date of offense: 

a. ls this an estimate (Yes/No): 

B) Description of the specific natureofthe offense: 

C) Did the offense involve any of the following? 

I) Domestic violence or a crime of violence (such as battery or assault) against your child, dependent, 

cohabitant, spouse, former spouse, or someone with whom you share a child in common: Yes I No 

2) Firearms or explosives: Yes I No 

3) Alcohol or dmgs: Y cs I No 

D) Location where the offense occurred (city, county, state, zip code, country): 

E) Were you arrested, summoned, cited or did you receive a ticket to appear as a result of this offense by any 

police officer, sheriff\ marshal or any other type of law enforcement official: Yes I No 

1) Name of the law enforcement agency that arrested/cited/summoned you: 

2) Location of the law enforcement agency (city, county, state, zip code, country): 

F) As a result of this offense were you charged, convicted, currently awaiting trial, and/or ordered to appear in 

court in a criminal proceeding against you: Yes I No 

1) If yes, provide the name of the court and the location of the court (city, county, state, zip code, 

country): 

2) If yes, provide all the charges brought against you for this offense, and the outcome of each charged 

offense (such as found guilty, found not-guilty, charge dropped or "nolle pros," etc). If you were found 

guilty of or pleaded guilty to a lesser offense, list separately both the original charge and the lesser 

offense: 

3) If no, provide explanation: 

G) Were you sentenced as a result of this offense: Yes I No 

H) Provide a description of the sentence: 

l) Were you sentenced to imprisonment for a term exceeding one year: Yes I No 

J) Were you incarcerated as a result of that sentence for not less than one year: Yes I No 

K) Ifthe conviction resulted in imprisonment, provide the dates that you actually were incarcerated: 

13 
90 

L) If conviction resulted in probation or parole, provide the dates of probation or parole: 

M) Are you currently on trial, awaiting a trial, or awaiting sentencing on criminal charges for this offense: Yes I 

No 

N) Provide explanation: 

14 
91 

10. Civil Litigation and Administrative or Legislative Proceedings 

(A) Since (and including) your 18th birthday, have you been a party to any public record 

civil court action or administrative or legislative proceeding of any kind that resulted in (1) 

a finding of wrongdoing against you, or (2) a settlement agreement for you, or some other 

person or entity, to mal<e a payment to settle allegations against you, or for you to take, or 

refrain from taking, some action. Do NOT include small claims proceedings. 

N/A 

,Date Claim/Suit 

···'Was Filed or 

•·. ··Le~islative 

-Proceedings 

·' ·Began 

.. : : 

Name(s}of 

Principal Parties 

'' 

Nature ~r Actio~/~r~ceedlng .-·-.. • R:esuifior _·. ', ·. A(;tionll'rocecdirti( 

: ·.·' 

(B) In addition to those listed above, have you or any business of which you were an officer, 

director or owner ever been involved as a party of interest in any administrative agency 

proceeding or civil litigation? Please identify and provide details for any proceedings or 

civil litigation that involve actions taken or omitted by you, or alleged to have been taken or 

omitted by yon, while serving in your official capacity • 

. D:iteClnim/Suit 

Was Filed 

Sept. 2004 Arlington 

County 

Circuit 

and Nicole Arshan 

(Defendant). My 

Court {VA) attorney was 

Patrick Regan, 

with the firm 

Regan Zambri & 

15 

involved in a serious 

automobile accident. I sued 

the person responsible for 

causing the accident to 

compensate for injuries 

sustained and related 

Matter was settled 

pre- trial in Feb. of 

2005, 
92 

-- Long, 1919 M St., consequences. 

NW,Ste. 350, 

Wash., DC 20036; 

202-463-3030, 

Ext. 222. 

5/3/13 EEOC, Robin Davis and Appeal to EEOC of Final Matter settled 

Wash. DC Ernie DuBester, Agency Action. (closed by EEOC 

Chairman, Federal 8/13) 

Labor Relations I am named only in my 

Agency {FLRA) and capacity as Chairman of the 

FLRA FLRA. 

--

(C) For responses to the previous question, please identify and provide details for any 

proceedings o1· civil litigation that involve actions taken or omitted by you, or alleged to 

have been taken or mnitted by you, while serving in your official capacity. 

None 

11. Breach of Professional Ethics 

(A) Have you ever been disciplined or cited for a breach of ethics or unprofessional conduct 

by, or been the subject of a complaint to, any court, administrative agency, professional 

association, disciplinary committee, or other professional group? Exclude cases and 

proceedings already listed. 

No 

,,.>>:,'.'Name of 

';'Agencv/ Assoda tion/ 

•;::commiftee/Groi•p 

National Mediation 

Board (NMB) 

Dale 

Citation/Diseiplinarx. 

Action/Comglaint · 

Issued/Initiated 

November 200 1 

DescribeCitati~nfDis~ipllnarY'"; ·· 

, ·,: ActioniConipiaint~~; 

::·~: '~~·'',/: •/ .. 

In May of2001, when I left the 

NMB and was hired by George 

Mason University (GMU) Law 

School, there was an 

interdisciplinary Academic Center 

for Dispute Resolution between 

the Law School & GMU's 

Institute for Conflict Analysis & 

Resolution (!CAR). Apparently, 

uestions were raised about the 

16 

I was found not to have 

been involved and, as to 

me, the matter was dropped 

(not referred). I continued 

to teach at GMU for the 

next four years. And, in 

2005, I was rehired by the 

NMB, the investigative 

entity, where I worked until 

Au ust2009. 
93 

solicitation of funding for the 

Center which led to an ethics 

inquiry. 

(B) Have you ever been fired from a job, quit a job after being told you would be fired, left 

a job by mutual agreement following charges or allegations of misconduct, left a job by 

mutual agreement following notice of unsatisfactory performance, or received a written 

warning, been officially reprimanded, suspended, or disciplined for misconduct in the 

workplace, such as violation of a security policy? 

No 

12. Tax Compliance 

(This information will not be published in the record ofthe hearing on your nomination, 

but it will be retained in the Committee's files and will be available for public inspection.) 

REO~ClEO 
94 

REDACTED 

13. Lobbying 

In the past ten years, have you registered as a lobbyi~t? If so, please indicate the state, 

federal, or local bodies with which you have registered (e.g., House, Senate, California 

Secretary of State). No 

14. Outside Positions 

-../See OGE Form 278. (If, for your nomination, you have completed an OGE Form 278 

Executive Branch Personnel Public Financial Disclosure Report, you may check the box here to 

complete this section and then proceed to the next section.) 

For the preceding ten calendar years and the current calendar year, report any positions 

held, whether compensated or not. Positions include but are not limited to those of an 

officer, director, trustee, general partner, proprietor, representative, employee, or 

consultant of any corporation, firm, partnership, or other business enterprise or any nonprofit organization or educational institution. Exclude positions with religious; social, 

fraternal, or political entities and those solely of an honorary na!ure • 

Address of 

:_organization 

Washington, DC 

Virginia Richmond, VA Non-profit 

Mediation 

Network 

Northern Virginia Fairfax, VA Non-profit 

Mediation 

Services 

19 

Executive 

Advisory 

Committee 

Board of 

Directors 

Board of 

Directors 

. :Position :Held· , 

' Hn~~~~~{l · 

Present 

2005 2008 

2003 2008 
95 

15. Agreements or Arrangements 

;/See OGE Fonn 278. (If, for your nomination, you have completed an OGE Form 278 

Executive Branch Personnel Public Financial Disclosure Report, you may check the box here to 

complete this section and then proceed to the next section.) 

As of the date of filing your OGE Form 278, report your agreements or arrangements for: 

(1) continuing participation in an employee benefit plan (e.g. pension, 401k, deferred 

compensation); (2) continuation of payment by a former employet· (including severance 

payments); (3) leaves of absence; and (4) future employment. 

Not applicable 

Provide information regarding any agreements or arrangements you have concerning (1) 

future employment; (2) a leave of absence during your period of Government service; (3) 

continuation of payments by a former employer other than the United States Government; 

and (4) continuing participation in an employee welfat·e or benefit plan maintained by a 

former employer other than United States Government retirement benefits. 

Not applicable 

,Status and, Terms of Any 

,A:greCment or Arrangement 

,', 

16. Additional Financial Data 

All information requested unde1· this heading must be provided for yourself, your spouse, 

and yo'ur dependents. (This information will not be published in the record of the hearing 

20 
96 

on your nomination, but it will be retained in the Committee's files and will be available for 

public inspection.) 

REDACTED 
97 

SIGNATURE AND DATE 

I hereby state that I have read the foregoing Statement on Biographical and Financial Information and that the information 

provided therein is, to the best of my knowledge, current, accUrate, and complete. 

This l 2 "~"' day of Oct, 20 II 
98 
99 

Perspectives ott Work is u. biannual 

publication of the LabQr and Employment Rdatlons Association 

and is publishe<l by the University 

of Illin~lt Pr~n In Champaign, lL. 

Comrilentt1 letters, or suggestions 

for e.rtlclcs msy be sent to S11san y. Cass,editor,atseass@mit.edu. 

Bditorl 

Susan C. Cau 

Managlog editon 

PiulaWel!s 

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IL. Printed in the United States n! 

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ISSN 1534·9276 

Cover illustration e Fotosenrch 

Fmm the Editor 

Susan C. Cass .............................. , ... ; ................................................................................ 2 

POliCY fORUM: 1Ht fUTURe Of PUBliC StnOR UNIOflS Public Sector Labor Relations: A System Strug'gling to AdjuSt to the Financial Crisis 

. Robert McKersie ........... : ..... : ......................... , ............. ,, .. ,_ ... , ........................... : ............... 3 

Fiscal Crisis and the Future of Public Unions 

Barry Bluestone ......... : ...................................................................................................... 6 

. Not Just about Pensions 

Dave Low.,. ...................................... , .............................................................................. 9 

Collective Bargaining: A Critical Value of a Democracy 

Ernest DuBester ................................................................................................... :: ........ 12 

POLICY fORUM.: SUSTAINABiliTY AND CORPORAH 

S 0 CIA l RlS P 0 N S I BIll TY 

Labor Management Partnershlps: Working Toward a ~u.stai6able Economy 

Nikki Dat·uwala ............................................................................. ; ............................... 15 

Business Social Sustainabilitr. Joint G.ains- for Employers AND Employees 

Tom Strong1 Mark Popo~ich 1 and Barbara Dyer ............................................ ~ ................ 19 

THE CHANGING NATURE Of WORK: INHRNATIONAl 

tMPlOYMfNT 

Ensuring Core Labor Standards through International Framework Agreements? 

Michael Fichter, Markus Helfen, and JOrg Sydow .................................. ~ ............... ., ...... 23 

Privatization of Public Services and Inlpact~ on Employment and Working ConditionsEuropean Experiences 

Christoph I-fcrmann and Jofg FlccKer ........ ; ............................................................ , ...... 26 

The Institutions of Inclusion? The Dynamics of Low~ Wage Work in We<<hy Countries 

Jer6tne Gauti6 ........ , .... : ......................................... : ........................................................ 29 

The Globalization of Service Work: Comparative Institutional Perspectives on Call Centers 

Rosemary Batt ................................................................................................................ 32 

Coercion without Convergence: Eur~Pean Models or' Capitalism on thC Eve of the Crisis 

Steffen Lehndorff ........................................................................................................... 35 

ffAfUHtS 

Prote-cting Workers in Fissured Workplaces 

Davtd We.ti. . . .. . ....... ., .. _ .., ............... _ .. ,_. . ... 38 
100 

COLLECTIVE BARGAINING: 

A Critical Value of a Democracy 

I

, have .thirty-six yeilrs of,.~?'perience 

in labor-management reladon.s. AU 

invo!ve1 in some way) the institu~ 

don of collective bargaining. As a 

practitioner)' I negotiated collective <1g1~ee~ 

ments and took grievances to arbttration. 

Working as a mediator, 1 resolved hun· 

dreds of coUeccive basgaining disputes.· 

And, as an arbitrator, I resolved dozens 

of grievances and a few interest dis~ 

Putes. Based on my ·experience~· I am an 

advocate for the institution o{ collective 

bargaining. 

. Public service now constitUtes more 

than one-hall of my professional life. r have wOI."ked for nll ·three federal gov~ 

emment agencies that administer our 

federal collective bargaining laws. Out 

of law school~ J worked for the N.atlonal 

Labor Relations. Board, probably ~he 

be::t known of the three) with jurisdiction 

over the private sector, During Pre!>i~ 

dent. Clinton\s admi.nh>tration, I served :as 

Chnirman (and Member) of the National 

Mediation Board) the oldest of the three, 

which oversees labor relations in the . 

airlhic n.nd railroad industries, NOw, dur· · 

ing President Obama~s· administration, 1 

serve as a Mernber of the Federal Labot 

Relacions Authority (FLRA). Esmblishcd 

in 1978 and ·thC newrist of the three, the 

}t'LRA oversees labor relation.s in.the fed~ 

.!tal sector1 with jurisdiction over neady 

wo million employees nationwide, 

The Federal Service. Labor~M::mage.~ 

0 mnm Hll/Wiim 1012 

mcnt Relations Statute js modeled on 

the National Labor Relations Act. Its' 

As I iecnll, Arendt opined that the r:wo 

institutions that are most reflective of u 

"F'mdings and. pm:pose 11 'section states democratic society aie n free press and 

"Collective 

in pertinent piut that Can~ 

grcss finds that "e;perience 

in both private and public 

e"mploymenr indicates that 

, • , labor org::mizations and 

coilective barg~intng in dte 

cWil service arC to the public 

free trade unions. 

illustrative of this prin~ 

ciple is the situation that 

bargaining" evokes el<isted in pose-World Wax 

thoughts about the 

workplace and the 

interest. 11 l ·relationship mnong 

"Collective bargainingn 

evokes thoughts about the 

workplaCe and the rela~ 

. workers, unions 

. and employers. 

tionship among workers} · But collective 

unions, and employers. But 

collective bargaining · has 

another aspect, namely~ its 

broader and crit.i~al role as 

a reflection of values Junda .. 

!nental ·to dem'o.c~:atic sod~ 

etics. 

-Bal-bara Pick) 'AssoCi» 

ate ProfcssOl' at Notre 

Dame Law Sch~ol, writes 

that trade unions are the 

"quintessenti-"1,1 civil society 

bargaining has 

another ·aspect~ 

namely, its broader 

and criti.cal role 

as a reflection o.f 

values.fundamental 

to democratic 

societies. 

ll Japan, (',enml Douglas 

MacArthur was i~ charge 

of ;eforming Japan's gov~ 

ernment an<;! its constitu· 

tion. Around t'hat' time! 

many of the most con~ 

setvative elements in our 

country were encouraging 

him to seek the Republican 

presidential . nomina.tion. 

tn Japan, MacArthqr was 

inteqt on ensuring that Ja~ 

pan wOuld .not remhin an 

autocratic form of govern· 

ment and on fending off 

communis~n. Toward th.ose 

objeCtives, he encOuraged 

the·Unionh>.ation of workers 

nnd sweeping constitutional 

.reforms that included pro· 

. o~·ganization. 11 ln this role, Fick sl!ates, 

trade union influence extends beyond 

the confines· of the workplace and affects 

societY as a whole, maklng a major con~ 

u:l~utii:m to creating, maimaining) and 

rebuilding democratic sodeties,2 Hannah 

Arendt, author of the daSsic Origins of 

Totalitarianism, had a ~imilnr thought. 

vision of coltl!ctive bargaining rights, He 

succeeded. 3 

But were those different times, a di{~ 

ferettt era? 

Following World War II~ our country 

became embroiled in the Cold ·war. In 

1960, John F. Kennedy called Labo< the 

ukey to the· Nation's struggle against 
101 

Commf.!nism." Ke11nedy st.a~cd further 

that "those who crippk collective bar· 

gaining <H' ·prev~nt ·organization of the 

'unorganized- do a dis.<:ervice to rbe cause 

of democracy, 1

'-4 

But were &!-JOse also dif{ere11.t time:;, a 

different eraf 

Flash forward about ~ent)' years to 

P.residem: Reo.gan's administration. In 

some drdcs) Re.1gan is best known for 

tw6 reasons . .One i~ his firing of air traffic 

.controllers dUring the PATCO sttike. The 

other-is his Comment that government is 

the problem. 

Less known1 in 1.982, P.rcsidenl Rea~ 

gan addressed a joint session Of the Brit· 

ish Padiarricnt at .Wesr:minster Palace. He 

predicted the demise of communism1 well 

before the .collapse of the Berlin \X7aH1 nnd 

he described a "democratic revolution 1

' 

gathering force around the globe.· Going 

forward1• Reagan said, the Unit-ed States 

would seek to prQmote an "inftaso:ucmre 

of democracy," including n free press, in~ 

dependent Unions, representative pOlitical 

parties, and un.lversities~ whiCh wallows a 

people to choose their own way) develop 

t!~eir own cultures, and reconcile differ~ 

ences thro"l.lgh peaceful means: " 5 

A year later, President ReaganJs words 

were a catalyst for Congressional pas~ 

sage of ~he 'Notional Endowinenc for 

Democracy (NED), which 

is dedicated to fosterlng 

the growth of a wide 

range of democratic 

institution"s· abroad, 

including trade 

uilions, The website 

for NED states tbnr 

"from its beginning 

NED has 1·emained 

steadfqst!y bipartisan. Created jointly 

by Republicans and 

Democrats, NED , . , erijoys 

Congressional Sl1pport «C!OS$ 

the political spectrum .. "(· 

To acknowledge the cen· 

tennial celebration of Presi~ 

dent. Reagan's"birthday earlier thi$ year) 

two of NED's. 13<Jard of Directors) fot:mer 

Democra~ic Congressman Martin Prost 

{Texas) and former Republican Con~ 

gressma.n.Vih Webei.·. {Minnesota) 1 wrote 

nn nrricle in Politico.acknowledging Reagants role in NED's (..""teat:ton. T)leit letter. 

s:uggesced futther that1 ·at a time when we 

need a bridge across the divide between 

thr. two pa·r.ties and between the. la-bor~ 

management community, NED can serve 

as n "model" to find common ·ground 

regarding values so important w our 

d\!mocracy. 7 

But djd. NED:S. creation duting the 

Reaga:tt adrninistt•ation reflect df,fferent 

times. 1 a 4ifferent era? 

Flash fonvard again tO events of re .. 

cent month5 both here and abroad. 

In Egypt, tens of thousands of Egyptian workers joined student protesters in 

tbe streets a1id jointly brought down an 

auth?ritadan regime. This echoes similar 

event5 that have occurred elsewhere~ 

such as l)oland, East Germany, and the 

· Philippines. · . 

Throughout the 1930s in Poland, 

worker protests and &trikes led by the 

Polish trade union So!idarity1 defying 

s:"tate-conrrolled ·unions1 cul\ninated in 

free~ democtacic eJections and helped 

preCipitate· the· downfall of Soviet Com· 

munism. 

ln Egypt, worker protests beginning 

in late 2006 led to tbe creation of .two 

independent unions, defying the officially 

recognized state~union, and have now 

culminated in the toppling of its regime. 

The American Chamber of. Commer9-e 

in Egypt publishes a Business Monthly. 

Its. February 2011 Cover story entitled 1

'Worb;rs' Discontent" provides- an in~ 

teresting account of the last Sour years. 

That atticie .also states: "While !:be in~ 

srinctive reaction of -govenunent. and 

employers is to view such de,relopmentS 

as a 'threat, labor leaders might repres:ent 

nn opportunity for diaiogut at a time of 

increased fruso:ation among both work~ 

ers arid the uri.employed. ••t 

Many Americans-acrosS the pO· 

llticai and ideolOgical. spectrum-have 

expressed admiration and support for 

foreigp workers' bravery in protesting 

and ·undermining Egypes authoritarian· 

regime, Recall that, in Na:vember 19891 

during the administration of· President 

George B. W. Bush1 · Lecb Walesa 1 the 

le~der ·of Solidarity !n the 1980s1 became· 

only the third foreign dig· 

nitary in history (after 

Marqujs de Lafayette 

and ·winston Churchill) 

to address a joint ses~ 

si~n of the ·us C~n~ 

gress. 

Meanwhile, here 

at home, workers 1 

collective bargajn· 

ing rights s.re under 

att$:ck on several 

fronts 1 most notablY 

Ohio and Wiscons.in. 

It is i!pnic that our 

government has received 

,many oommuniqu6s 

from Egyplian groupsand from Soiidarity in 

Poland-cxpressi~g: 

nmmms ou wm G 
102 

support' for American wOrkers in their 

fight for democracy, As Gerald BeYer 

{Associat~ Professor of Christian Socia! 

'&hies at St. Joseph's: University in PhU"~ 

delphia), wdting i1j Politics Dm'ly <trgues, 

there are parallels bc:tween the Solidarity 

Movement in Communis~ Poiand and the 

efforts of public Workers in Wisconsin 

and oth.er states to resist efforts·to curtail 

their collective bargaining rights,, 

So, what is going on? 

Well, there are certainly s~rious bud~ · 

get crises in most states, Howevcr1 it 

must also be mentioned that many states 

that ·do not have col~ective bargaining 

rights also face budget crises. 

And, it is cermUtly approprinr'c to chal~ 

lenge responsible union l~adcrs to help 

sol'('e the serto.us problems created by 

peJ!Sion and health care obligations. This1 

apparently1 has occurred in Wisconsin. 

. B1.n, aS many observers have recog~ 

·ni.ied, in Wisconsh\ the real struggle is 

over power. 

ThiS is regrettable, 

Underscandably1 tabor and manage~ 

ment will often differ at the workplace 

<md Over certain policy issues. However1 

as th~ prior discussion Ulusmucs, free~. 

dam of association and otber democratic 

values that underlie the institution of c~t~ 

1cctive bargaining1 need not be partisan .. 

But) do we. have. a double standard 

as to the democr.atic values that we 

promote abroad as opposed to here at. 

home? 

Professor· Fick observes; 1'Advocates 

for· democracY hc:ve cause for concern in 

the absence of a vibrant) and indepen~ 

dent, domestic trade union movement. " 10 

So1 f hope.that oi1r struggles over'budget deficits, both in rhe states and within 

~he federal g-ovem~nent1 won 1t destroy, 

the conditions neces&-ary· to ·support the. 

in.stit\ttion of collective b~rg.aining. ln the 

long tenn, that would· greatly hann our 

democratic vilucs. 

Based~ e~senti:~Hy. on the Fkst .Amend~ 

mem: right ro f~eedom of association, the 

·institution of collective bargaining has 

.~et'ved as pan of our legal framework 

for nendy a centu!'y, ·It affords workers 

the opportunity fof engagement. and n 

meaningful voice to addtess work-:related 

concerns. lt has provided an impetus 

toward development of n true middle 

da~s at a time, when the disparity .between rich.er and poorer Americans .is 

becoming even more pronounced. And~ 

for the most pare, through the processes 

of negotiatio11 and arbitration1 it has 

enabled workcrs1 unions, und employers, 

nlih-.<'ls President ·Reagan suggested 

nearly thirty yeal.'s ago--tO "reconcile 

differences th1:ough peaceful means. 1

' In 

this sense1 on ·balance, lt redounds to the 

b.enefit of sodety as a whole. 

Given these corisiderations, ··do we 

really want to eliminate, or eVen curtail) 

collective bargalning at: this time? And~ if 

so, what does that say about the kiDd of 

·Coqntry thnt we are willing tQ become? 

What am we do? 

WeH1 people who share my concel'nS 

need to speak out. It is p!J.l:ticulady imw · 

portanNo address our yow1g citizens. 

· Young people need to learn of. the 

role of coUectj\re bargain~g in creating a 

system of. 'justice for the woi:kplace. 

But, perhaps even more imporrant, 

young: people need to appreciate the 

institution of cotlective bargaining .as a 

. reflection of freedom and democratic ideals, nor only for democracies abro?.d, but 

nlso for om·s here at home, 

This llt'tide is adapted from a speech given 

in Dullas on· Marcb 4, 20111 to the National 

Academy of Al:bitrc..tors; SW Region. 

1. 5 U.S.C. S 7101(a)'(2006). 

2-. B. J, Fick., "Not JuSt· Coll~ctive Bar~ 

gaining: The Role qf Trade Unions in 

Creating and Maintaining \l. Democrati~ Society," WorkiHgUSA: .The Jo~mt(!i 

of Labor '.'lnd Sodety 12, no, l Uune 

2009), 2~9. 

3. A good account of MacAtthur'llc role iu 

pon-Worl'd War II japan ls contninpd 

in William Manchester's boClk Amerium Caesar (New York: De!\1 1978), 

4. J~ F. Kennedy, q'llOted in P. Kihss, 

"Lab(,w Called Key to Nation's Race 

with Communism/' New York Time,s, 

September 5, t960, pp. A·1, A·6. · 

5. R. Rea.ga1'i 1 "Address to M~mber.~ of 

the British Parliamem1 June 81 t9R2, 

http:l/www.reaganshedtage.org/html/ 

cengnn06_08_&2.shtmt (accessed Fehiunry l31 2011). · · 

6. http:J/www.ned .. org/ABOUT · {necl!$sed . · F,b, 23, 20U). . 

7: M. ·Frost and V. Weber, "Reagan's 

Crucial Democratic Legacy," Politic.o 1 

·February 7, 20111 http://www.poU!ico 

.. com/n ~:ws/stnrie.s/0211/489 46.htm1 

{ac_cessed Peb:ual'y 28, 2011}. 

8. A. T. Meuse, ''Workers' Discontent/' i\meric:m C1Jatnbcr of Com- merce in Egypt: .Business Mortthly, 

February 20li, http:/Jwww.ru.ncha-m 

. o rg. eg/ resources _p ltb lie at ions/ 

P'+blico.tions/business_inonthly/issue 

.e.sp?sec:5i';lim::2&iy:::1011&su.bsec::: 

{llccessed February 24, 2011.}, 

9. G. J3:eyec, "PQland .ln 1980 and W\scon· 

sin in 2011: History Rbymes1

11 Politics Daily, Fcbru>1ry 28, 2011, httpdfwww 

.poUticsdui!y.com/20.11/02/14/Potand 

·iil·1930-and·wisconsinw201 f·h \story 

·rhymes/ (accessed February 28, 20ll), 

10. Fidt, !

1

Not Just CoUective Bargaining)" 

249. 

EmastOuBastor 

Etn<JSI Dli!J!l~/8(/Wt servocl as a M~mbw or !he f11Ca1al 

tsborReiBfiC/l:Ai.ldr¢ritysit!CSAitOVti2Mil.!lfiel00ing 

llominllted bY Pr~sld;;nt Otmna 9lld (HI91lfll1Nrl~ tOll· 

!ilm&d by ~he US Senattt ffa 11/;so setwl 3$ Chl1fm$n 

feM MDmOOrJ of 1/uJ Narianal Media tiM fJMrd dwi>·~ 

PmidaniC/in:on~Atfrnfnlsrrat/a(l. 
103 

U.S. Senate Committee on Homeland Security and Governmental Affairs 

Pre-Hearing Questionnaire 

For the Nomination of Ernest DuBester to be a Member of the 

Federal Labor Relations Authority 

I. Nomination Process and Conflicts of Interest 

1. Did the President give you specific reasons why he nominated you to be a member of the 

Federal Labor Relations Authority (FLRA)? 

No. 

2. Were any conditions, expressed or implied, attached to your nomination? If so, please 

explain. 

No. 

3. Have you made any commitments with respect to the policies and principles you will 

attempt to implement as a member of the FLRA? If so, what are they, and to whom were 

the commitments made? 

No. 

4. Are you aware of any business relationship, dealing. or financial transaction that could 

result in a possible conflict of interest for you or the appearance of a conflict of interest? 

If so. please explain what proccdnres you will use to recuse yourself or otherwise address 

the conflict. And if you will recuse yourself, explain how you will ensure your 

responsibilities m·e not affected by your recusal. 

No. 

II. Background ofthc Nominee 

5. What specific background. experience, and attributes qualify you to be a member of the 

FLRA? 

Since August 2009, I have served as a FLRA Member. This includes service as 

Chairman for most of 2013, a challenging year in which sequestration was in effect. 

During these last eight years, consistent with Section 7105(a)(J) of the Federal Service 

Labor-Management Relations Statute (Federal Statute), I have helped to "provide 

leadership in establishing policies and guidance" that would promote an etTective and 

efficient labor-management relations program. And, consistent with Section 

7105(a)(2) of the Federal Statute, I have participated in the issuance of over 1500 

decisions. Including this service at the FLRA, I now have over 40 years of experience in 

labor-management relations. working as a public servant, advocate, mediator, arbitrator. 

Senate Homeland Security and Governmental Affairs Committee Page 1 
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and academic. Moreover, I have experience with all of the basic federal labor laws, 

including several years with the National Labor Relations Board (NLRB), and several 

years working with the Railway Labor Act, including almost eight years as Chairman 

(and Member) of the National Mediation Board (NMB). l have also earned a Masters of 

Law in Labor Law from Georgetown University Law Center. 

For over 25 years, I have worked for the federal government. From 1993-2001, J 

managed another independent federal agency when 1 served as Chairman (and Member) 

of the NMB. During that time, I was responsible for implementing a goal shared by the 

Federal Statute, namely, to promote the "efficient accomplishment of the operations of 

the government." 

The FLRA, as the Committee knows, adjudicates disputes arising under the 

Federal Statute, deciding cases regarding the negotiability of collective-bargaining 

agreement proposals, appeals concerning unfair labor practices and representation 

petitions, and exceptions to grievance-arbitration awards. And, even before my FLRA 

experience, l had experience in each of these areas. 

I began my career at the NLRR. There, one of my responsibilities was to draft 

unfair labor practice decisions that applied and interpreted the National Labor Relations 

Act- the law on which the Federal Statute is modeled. During both my time at the 

NLRB. as well as during my tenure at the NMB, l drafted and issued representation 

decisions, similar to the responsibilities of the FLRA. 

Regarding negotiability and impasses, I have 20 years of direct collectivebargaining experience working as a mediator and advocate. In addition, I have taught 

collective-bargaining and negotiation for many years at two area law schools. 

With respect to arbitration awards, I worked for several years as an arbitrator. 

Moreover, I taught arbitration for several years at a law school. 

Finally, I have worked with the Leadership, Committee Chairs, and Memberson a bipartisan basis of both bodies of Congress. While Chair (and Member) of the 

NMI3, moreover, I worked closely with the White House as well as working collcgially 

with certain Cabinet-level agencies. 

6. Please describe: 

a. Your leadership and management style. 

In my view, successful leadership and successful management require effective 

communication, collaboration, transparency, and, ultimately, accountability. 

When serving in a leadership position, it is important to me that managers and 

employees alike know that their voices and input are valued. The sharing of information, 

and at the earliest possible time, is important. In my experience, this kind of work 

Senate Homeland Security and Governmental Affairs Committee Page 2 
105 

environment translates into high morale which, in turn, translates into high performance. 

This is one of the best ways to achieve the Federal Statute's objectives of an effective 

and efficient government. 

It is noteworthy, moreover, that when I served as Chairman in 2013, and when l 

served as NMB Chairman in the nineties, I dealt with my colleagues who were part of 

the leadership team in a similar way, striving always to make decisions based on 

consensus. 

Ultimately, though, whether from a leadership or manager's perspective, I am 

always prepared to take responsibility, and be held accountable, for all of my decisions. 

b. Your experience managing personneL 

I have had the rewarding privilege of serving in a leadership capacity at two 

independent agencies tor over 16 years. At both the NMB, and now the FLRA, my 

responsibilities have included budget development and implementation, infonnation 

technology, strategic planning, case management, and human resources matters. 

In managing the personnel at these agencies, I have always f(lcused on improving 

and maximizing performance by sustaining high levels of employee engagement and 

job satisfaction. One way to achieve this objective is by providing personnel with 

opportunities for professional development and skills enhancement. For example, at 

the FLRA, we have provided a variety of training opportunities, including legal 

writing and conflict resolution classes. We provide employees with regular case-law 

updates. We have provided cross-office and cross-component details to develop 

research, writing. and ADR skills. And, we have conducted regular meetings of the 

staffs of the respective Members (decision-makers within the Authority component) to 

discuss case processing innovations and other matters relating to job satisfaction. 

For the managers, we have made available several training opportunities to improve 

performance management responsibilities and to improve strategic thinking. This is 

critical for preparation of future agency leaders and to address the important challenge 

of succession planning. 

c. What is the largest number of people that have worked under you? 

About 140. 

III. Role of Member, FLRA 

7. Please describe your view of the agency's core mission and a member's role in 

achieving that mission. 

Senate Homeland Security and Committee Page 3 
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1\s suggested by the Federal Statute's first section (Section 7101), titled "Findings 

and purpose," the FLRA's mission is to promote stable, constructive labor-management 

relations by harmonizing collective-bargaining rights with ·'the requirement of an 

effective and efficient Government." How the FLRA best achieves this mission is 

informed by Section 7105 of the Federal Statute, titled, "Powers and duties of the 

Authority." 

Section 71 05(a)(l) 

Section 71 OS's first paragraph requires that the FLRA "provide leadership in 

establishing policies and guidance" for the administration of the federal govemmcnfs 

labor-management relations program. This section serves notice of the importance that 

all federal agency stakeholders have confidence that the FLRA is performing its mission 

effectively. 

Through its casework, as discussed below, the FLRA has developed expertise in the 

Federal Statute and those processes that best resolve labor-management disputes. For 

the last eight years, the FLRA's shared policies and guidance have mostly been in the 

form of various outreach, facilitation, and training activities, including the extensive 

offering of Altcmativc Dispute-Resolution (1\DR) services. 

(a) Training and Education 

Over the last eight years, the FLRA has provided various trainings, including 

web-based training, to tens of thousands of agency representatives, union 

representatives, and neutrals, in the Federal Sector labor-management community. 

This includes training on basic statutory rights and responsibilities. 

In recent years, moreover, the FLRA launched initiatives to review the processing 

of both arbitration and negotiability cases. As part of this initiative, arbitration and 

negotiability training programs were developed. When offered, these training 

programs are always filled. And, the Authority also developed a Guide to 

Arbitration under the Statute and a Guide to Negotiability under the Statute, both of 

which are posted on the FLRA website. 

Over the last eight years, the FLRA has also presented several training sessions at 

events such as the annual Society for Labor and Employment Relations 

Professionals (SFLERP) symposium and the Federal Dispute Resolution (FDR) 

training conference. Both are always well-attended by representatives of the Federal 

Sector's labor-management relations community, 

(b) ADR 

In recent years, the FLRA has increasingly recognized the many benefits 

associated with using !\DR to resolve workplace disputes. Accordingly, ADR 

techniques have become integrated into virtually all aspects of case processing. 

Senate Homeland Security and Governmental Affairs Committee Page4 
107 

Senate 

The FLRA's Collaboration and Alternative Dispute Resolution Office (CADRO) 

is a primary deliverer of ADR services. Not only has CADRO helped to resolve or 

narrow disputes in many cases pending before the Authority, but CADRO has also 

offered "prevention" services which teach the parties techniques for effectively 

resolving labor-management issues on their own. 

It is noteworthy that successful, voluntary ADR efforts can result in 

significant savings of staff and budgetary resources tor the parties using such 

services. In this sense, the question is not just about the FLRA from an 

operational standpoint. Rather, the FLRA's provision of effective ADR services can 

have a beneficial rippling effect throughout the federal government. 

Partly in recognition of this, when the FLRA developed its Strategic Plan for 

2015-2018, it reaffirmed ADR's important role in its mission performance. ln 

developing the plan, FLRA unde1iook a comprehensive process that involved 

internal input from leaders, managers, and employees. And, in addition, the FLRA 

sought and received significant feedback from cxtemal stakeholders. Among other 

things, twelve federal agencies and seven federal employee unions participated in a 

series of focus groups which provided input on FLRA services and performance. A 

consistent message was that ADR helped the parties to develop constructive 

workplace relationships that promote better mission perf()rmance and quality of work 

life. 

Consistent with this message, the FLRA identified "three strategic goals, which 

support the agency's ability to fulfill its mission." Goal 2 states: "We will promote 

stability in the federal labor-management community by providing leadership and 

guidance through [ADRJ and education." 

In recent weeks, however, questions have arisen as to whether the FI.RA will 

maintain this view going torward. Changes have already occurred in the extent to 

which, and, the way in which, CADRO will offer ADR services. 

This is regrettable in my view. Based on my experience, including many years of 

experience before my FLRA tenure, support for ADR is, and should be, a 

nonpartisan, indeed, bipartisan notion. 

Section 7105's second paragraph essentially sets forth the Authority's duty to 

adjudicate four kinds of disputes: cases regarding the negotiability of collectivebargaining agreement proposals, appeals concerning unfair labor practices, appeals 

concerning representation matters, and exceptions to grievance-arbitration awards. 

And, it is the FLR.A's mission, not only to decide these cases, but to do so in a timely, 

impartial manner. The FLRA 's primary case-adjudication responsibilities, along with 

Security and Governmental Affairs Committee Page 5 
108 

its responsibility to "provide leadership in establishing policies and guidance" related to 

the federal sector labor-management relations program, constitute the FLRA's core 

mission. 

Member's Role 

Each Member of the three-member Authority has the adjudicative responsibility 

discussed above. During my eight-year tenure as a FLRA Member (and Chair), I have 

participated in the issuance of over 1500 decisions. 

In addition, while the Chairman serves as "chief executive and administrative oflicer 

of the Authority" (5 U.S.C. Section 7104 (b)), each member of the Authority shares 

responsibility for appointment of an Executive Director, regional directors, and 

administrative law judges (ALl's) as deemed necessary (5 U.S.C. Section 7105 (d)). 

While a Member of the FLRA, I have coUcgially participated in the selection of several 

executive directors, regional directors, and ALJ's. 

Consistent with our statutory directive to "provide leadership ... and guidance," while 

a Member, I have collaborated with my colleagues in supporting the outreach. 

facilitation, and training activities discussed above. This includes collaborating with 

my colleagues on the leadership team, as well as with FLRA career employees, in 

developing our most recent Strategic Plan. 

I have spoken many times while a Member to various conferences attended by 

representatives of the federal sector labor-management community. Particularly at the 

arbitration and negotiability trainings, I often speak and afford the attendees the 

opportunity to ask questions. And, given my background and strong interest in our 

arbitration initiative, as well as my strong relationships with the arbitral community. l 

have appeared three times at annual meetings of the National Academy of Arbitrators, 

to actually train those experienced arbitrators on what I characterize as the "unique 

attributes of federal sector labor-management arbitration." 

8. Please describe how you anticipate, if confirmed, working with other FLRA members to 

promote the agency's core mission. 

For the last eight years. all Members and all Presidentials (including General Counsel 

and FSIP Chair) have had regular meetings. The regular Presidentials meetings are 

good opportunities to discuss matters that fall within the agency's responsibility to 

"provide leadership and guidance:· as discussed in my response to question 7. The 

Members· meetings are a good opportunity to discuss matters that are the Members' 

responsibility relative to case handling and processing. also as discussed briefly in my 

response to question 7. Hopefully, those meetings will continue. 

It is my instinct and style to work collaboratively with all my colleagues. If given the 

opportunity to do so, which means being given prior notice of intentions, being asked 

Senate Homeland Security and Governmental Affairs Committee Page6 
109 

Senate 

for my opinion and then afforded the opportunity for discussion, then I will always act 

collaboratively. 

a. Please describe prior work experience that demonstrates your capacity to work with 

FLRA members of a ditTerent party aftiliation. 

My eight-year tenure with the FLRA, and also my prior eight-year tenure as 

Chairman (and Member) of the NMB, demonstrate my capacity to work with members 

of a different party affiliation. 

During my FLRA tenure, I have served with two Republican Members. Throughout 

that entire period, we have always held the Presidentials and Members meetings 

mentioned above. I had a friendly, collegial relationship with my prior Republican 

colleague, who previously had served as FLRA Chair. On a couple significant 

decisions, our offices worked together to achieve similar positions, on which my 

Democratic colleague had a dissenting view. Also, during the initial days of the 

Arbitration Initiative, discussed in my response to question 7, my Republican colleague 

and I attended a meeting together at the National Academy of Arbitrators to seek their 

input and to discuss our intentions. When he left the FLRA. we were friendly and 

remain friendly. 

My current Republican colleague is serving as Acting Chair. And, the President has 

nominated him to be Deputy Secretary of Labor. As a gesture of collegial support, ! 

attended his confirmation hearing. While we have disagreements, we, too, are friendly. 

In recent weeks, moreover, we collaboratively hired a new Executive Director and a 

new Chief Administrative Law Judge, per my response regarding Member's Role in 

question 7. 

Also noteworthy is my NMB experience. Per statute, the Chair rotates every year. 

So all Members, Republican and Democratic alike, serve as Chair every third year. As 

intended, this facilitates a collaborative and collegial working environment. In addition, 

many of the matters that we handled involved high-profile disputes in the transportation 

sector with the potential tor a large impact on the public. While each Member usually 

assumed responsibility for a particular case, we always discussed the case with our 

colleagues before making important decisions. During my NMB tenure, ! served with 

two Republican colleagues. When our respective tenures ended, we were friendly and 

remain friendly. 

Finally, also worth mentioning is my trip to Taiwan in November 2014. 1 was the 

only federal official and the head of the delegation. The delegation consisted of eight 

Labor Secretaries from various states. Four, from the states of Oklahoma, Texas, New 

Jersey and Utah, were appointed by Republican Governors. While we may have had 

certain political differences, and some differing policy views, during our trip, which 

included meetings with many high-ranking officials, we were collegial and friendly. 

Security and Governmental Affairs Committee Page7 
110 

Both during and after the trip, I had friendly conversations with the entire delegation, 

Republicans and Democrats alike. 

9. Protecting whistleblower confidentiality is of the utmost importance to this Committee. 

a. During your career, how have you addressed whistleblower complaints? 

It is my personal view to encourage employees to bring constructive suggestions 

forward without fear of reprisal, even aside from the legal "Whistleblower 

Retaliation" prohibitions contained in 5.U.S.C. Section 2302 (b)(8). However, 

during my career, I have never personally had to address any whistleblower 

complaints. 

b. How do you plan to implement policies within the FLRA to encourage employees to 

bring constructive suggestions forward without the fear of reprisal? 

On all public bulletin boards within the Agency, we have "Whistleblower 

Retaliation" notices posted which, among other things, advise employees how to 

disclose concerns or allegations confidentially to the Office of Special Counsel. ln 

addition, on the PLRA's "intemal" website, we have a place for employees to post 

anonymous comments- The Comments/Questions Message Board. This Board is 

monitored only by the agency's EEO officer. 

c. Do you commit without reservation to work to ensure that any whistleblower within 

FLRA does not face retaliation? 

Yes. 

d. Do you commit without reservation to take all appropriate action if notified about 

potential whistleblower retaliation? 

Yes. 

10. What are the most signi.ficanl challenges facing FLRA as an institution? If confirmed, 

what steps will you take to address these challenges? 

In my view, the most significant challenges facing FLRA as an institution have both 

an "internal" and "external" dimension. 

Internally, discussed in question 15 below, in recent years the FLRA has scored very 

well in Best Places to Work rankings. The FLRA has ranked in the Top 5 or higher 

overall and has even ranked # l in several categories including employee engagement 

Senate Homeland Security and Governmental Affairs Committee Page 8 
111 

and leadership. Going forward, a most significant challenge is how to keep employee 

morale, employee engagement, and employee performance, on this positive arc. 

How best to address this challenge requires adhering to certain policies, many of 

which are suggested in my responses to Questions 5, 6. and 7. First, employees should 

feel that their work is important and appreciated and that FLRA leadership is committed 

to the agency's mission. Second, employees should feel that they have a "voice" and 

meaningful opportunity to weigh in on matters affecting the FLRA workplace. Third, 

FLRA's leadership team (and managers) should continue to show concern for 

employees' professional development by, among other things, providing meaningful 

training opportunities. And, FLRA's leadership team should also continue to ensure 

that managers are equipped to handle their supervisory responsibilities, particularly 

regarding the performance-management system. This includes training in the skill of 

artfully giving and receiving feedback. 

The "external" dimension concerns FLRA stakeholders, particularly representatives 

from the Federal Sector labor-management community. How best to address this 

dimension is also fairly basic and also largely addressed in my response to questions 5 

and 7. Stakeholders should know that the FLRA continues to suppo1i its mission of 

facilitating stable, constructive labor-management relations which, in tum, enables other 

agencies to more effectively deal with their own mission-related needs. First, FLRA's 

leadership team should continue outreach activities, such as appearing at conferences. 

With such appearances, the "state" of the FLRA, including new directions or policies, 

can be discussed. Second, the FLRA should continue to post on its website information 

and resources that help practitioners perform their jobs better. Third, the FLRA should 

continue to offer training, which can both help stakeholders to perform their jobs better 

and to improve the quality oflahor-management relations within their agencies. And, 

the FLRA should continue to offer meaningful ADR services, and, in a meaningful way. 

AfTording labor and management representatives the opportunity to resolve more of 

their disputes voluntarily is one of the best ways to improve the quality of labormanagement relations. 

lV. Policy Questions 

1 L What is your assessment of the current state of federal labor-management relations? lf 

you believe that improvements can be made, in what areas should there be improvement 

and how can this be accomplished? 

At any moment in time, 1 am quite sure that the relationships among various 

agencies and federal sector unions vary. Even the state oflabor-managemcnt relations 

within an agency may not be uniform. 

Based on my experience, what I know more certainly is that, when discussing labormanagement relations, the key, often overlooked, word is relations. J am a strong 

Senate Homeland Security and Governmental Affairs Committee Pilgc9 
112 

advocate for any mechanisms that place an emphasis on the importance of the 

relationship, particularly through more effective communication and dialogue. 

My extensive experience as a mediator informs and supports this view. Working as 

a mediator, I have helped to resolve hundreds of collective-bargaining disputes. It was 

not unusual that, at my initial meeting with the parties, the employer's negotiating 

committee would tell me something like: "the Union does not care what we have to say. 

They never listen. So, we don't talk." And, then I would meet with the Union's 

committee and, what would they tell me? Essentially, the same thing. So, my mediatory 

role would certainly entail the facilitation of effective communication. 

My FLRA experience provides similar lessons. This is reflected by the Best Places 

to Work Rankings and, particularly by agencies, like the FLRA, that were previously 

ranked very low and then became ranked very high. It is also reflected by the ''best 

practices" stories that came from the National Cotjncil on Labor-Management Relations 

over the last eight years. Agency and union representatives would come together to tell 

the story of dramatically improved performance. Almost always, the simple message 

was: "We didn't talk. And now we do." 

For the FLRA, one of the best ways to promote effective communication and 

dialogue is through the provision of its ADR services. 

12. Given your experience as a counsel at the FLRA, do you believe that improvements 

should be made to the Federal Service Labor-Management Relations statute? If so, what 

improvements can and should be made'' 

As a Member (and former Chair). I have always worked to the best of my ability 

within the existing statutory framework. In my view, it is within the purview of 

Congress and the Administration to detem1ine what changes, if any, should be made to 

the Federal Statute. [f asked by Congress for my view regarding a possible reform, l 

would be responsive. 

13. The FLRA 's 2017 Congressional Budget Justification states that the FLRA "had to 

overcome significant obstacles in meeting its mission requirements." The Justification 

notes that in addition to increased case filings in certain agency components, the FLRA 

experienced a wave of key employee retirements and departures starting in FY 2013 and 

continuing into FY 2015. 

a. Given your experience as a counsel to the FLRA, what do you believe is driving the 

increased case filings at certain components? 

In the last couple ofFY's, I believe that case filings have slightly declined or 

leveled off As l recall, the reference to FY 2015 reflected the agency's targeted 

efforts to reduce a backlog within the Office of the Administrative Law Judges 

through details and other temporary statrassignmcnts. This was reflected by an 

Senate Homeland Security and Governmental Affairs Committee Page 10 
113 

increase in ULP cases decided by the Authority. But again, this was driven by 

resolving an OALJ backlog and not by a dramatic change in ULP filings by the 

parties. 

b. What issues and factors do you believe most li·equently give rise to unfair labor 

practice complaints? 

Of course, various issues and factors give rise to ULI's. Certainly, allegations of 

"failing to bargain" is a frequent subject ofULP complaints. And, where this occurs, 

often it can be explained by a poor labor-management relationship. As discussed in 

prior responses, including question 11, effective communication and dialogue is the 

best antidote. 

c. As unfair labor practices are considered at the Offiee of General Counsel (OGC) 

level, do you believe agencies are afforded sufficient information concerning the 

complaint? Are agencies provided a sufficient opportunity to weigh-in with OGC 

concerning a given complaint? 

Given that the OGC's investigative and prosecutorial roles arc distinct from the 

Authority's quasi-judicial role, there is a necessary operational wall between the two 

components. This question is a matter for the OGC and hetter asked of the General 

Counsel. 

d. Are there other obstacles besides increased case loads and stati departures that hamper 

the FLRA's ability to fulfil its mission? If so, please identify them and explain what 

you believe should be done to address them. 

There may be various obstacles at a particular moment in time. Even in an 

environment of "doing more with less," having adequate resources through the 

budget and appropriations process is always a concern. !like to say that, while we 

are a small agency, we have a large mission. Our work can have positive, rippling 

effects throughout the federal government. 

14. Are there improvements to the FLRA's internal review process that you believe can he 

improved upon to ensure fewer cases ultimately are overturned by the courts, and that all 

evidence is properly considered in a given case? 

For context, over time the FLRA is upheld by the courts in about three-fourths of 

cases that are appealed. Given the FLRA 's keen interest in being upheld, a thorough 

internal review is always performed. In an attempt to improve this percentage, perhaps 

a more fiJrmalized internal review, to ensure that all applicable court precedent is 

considered, may be in order 

15. ln the 2016 Best Places to Work rankings complied by the Partnership for Public 

Service, and based on the data collected in the Federal Human Capital Survey, the FLRA 

Senate Homeland Security and Governmental Affairs Committee Page 11 
114 

ranked S'h out of 29 small federal agencies that submitted data. This is a significant 

improvement over 2009 when it ranked last. The FLRA's 2016 Index Score is down 

five points compared to 2015. however. 

a. What steps will you take, if confirmed, to maintain progress made by the FLRA in 

recent years, and to fmiher improve upon employee morale? 

As the question suggests, in my first full-year at the FLRA. we went from last to 

most improved in the Best Places to Work Rankings m1d have experienced continued 

success since then. For the last three years. (20 14-20 16), the FLRA has ranked in the 

top 5 overall, and the top 3 in the categories of effective leadership and teamwork, 

ranking #1 in Leadership and Teamwork in 2015 and 2016. 

This success story began in 2009 when a new leadership team committed to 

focusing on employee morale. The leadership team recognized that meeting human 

capital objectives has a direct relationship to organizational perfom1ance. As many of 

my prior responses suggest, addressing employee needs involves fairly basic 

activities, such as investing in our employees through training, including leadership 

training, and collaborating with our employees in developing new initiatives that 

improve our performance and better serve our customers. And, it requires a 

commitment of leadership to manage the agency with transparency, accountability. 

and employee engagement as core values. 

In my view, if our new leadership team is to maintain progress and continue to 

improve employee morale, then it will need to embrace these values. 

V. Relations with Congress 

16. Do you agree without reservation to comply with any request or summons to appear and 

testify before any duly constituted committee of Congress if you are confirmed? 

Yes. 

17. Do you agree without reservation to make any subordinate official or employee available 

to appear and testify before, or provide information to, any duly constituted committee of 

Congress if you are confirmed? 

Yes, assuming such subordinate official or employee are under my supervision. 

18. Do you agree without reservation to comply fully, completely, and promptly to any 

request for documents, communications, or any other agency material or information 

from any duly constituted committee of the Congress if you arc confirmed? 

Yes. 

Senate Homeland Security and Governmental Affairs Committee Page 12 
115 

VI. Assistance 

!9. Are these answers your own? Have you consulted with the FLRA or any other interested 

parties? If so, please indicate which entities. 

Yes. These answers are my own. 

U.S. Senate Committee on Homeland Security and Governmental Affairs 

Pre-Hearing Questionnaire 

For the Nomination of Ernest Dubcstcr to be a Member of the 

Federal Labor Relations Authority 

Minority 

I. Nomination Process and Conflicts of Interest 

1. Has the President or his staff asked you to sign a confidentiality or non-disclosure 

agreement? 

No. 

2. Has the President of his statf asked you to pledge loyalty to the President or the 

Administration? 

No. 

3. During your tenure have you asked any federal employee or potential hire to pledge loyalty 

to the !'resident, Administration or any other government official? 

No. 

II. Background of Nominee 

4. Do you seek out dissenting views and how do you encourage constructive critical dialogue 

with subordinates? 

Yes. Throughout my entire career l have always encouraged and actively sought 

to create an environment in whieh subordinates could freely express their views. 

A simple but effective way to encourage constructive dialogue with subordinates is to 

practice the art of ''active listening." If you want subordinates to listen to you, and even 

follow you, then listen to them lirst. Ask subordinates, or even peers, what do you think'? 

People really appreciate it when they arc asked their views. And, it is regrettable that 

leaders, or managers, do not seek the input of subordinates more frequently. 

Senate Homeland Security and Governmental Affairs Committee Page 13 
116 

a. Please give examples of times in your career when a subordinate disagreed with you 

and aggressively advocated their position. 

In my current position as a FLRA Member, I have personal stali which includes a 

Chief Counsel and a Deputy Chief Counsel (my staffs management team). Both of 

them frequently offer advice on cases and, occasionally on policy-related matters. 

Sometimes their advice is contrary to my inclinations and they may disagree between 

themselves. And, sometimes they change my mind. ln any event, they are both 

comfortable in knowing that they can freely express their opinions at least until the 

point 1 make it clear that I have reached a final decision. 

Another example comes from my prior experience as NMB Chairman (and 

Member). I often intervened and took responsibility for particular collectivebargaining disputes. It was customary that a stafT mediator, a subordinate, would 

work with me. StaiT mediators from time to time expressed views disagreeing with 

my thoughts on how best to proceed. The mediators understood that I welcomed 

their input and often accepted their advice. But, once I decided on a course of action, 

it was understood that their role was to assist me in effectuating the plan. 

5. Please give examples of times in your career when you disagreed with yom superiors and 

aggressively advocated your position. Were you ever successful? 

There are certainly times in my career when I disagreed with my supervisors. Perhaps 

the best examples again come from my experiences as NMB Chairman (and Member). 

During my NMB tenure, I was involved in many high profile collective-bargaining disputes. 

Some had a potential national impact, or at least the potential to affect a significant portion of 

the country. Under the federal labor law that applies to the airline and railroad industries, the 

NMB has statutory discretion to control when, if ever, the parties can resort to economic 

weapons (strike, lockout, unilateral implementation). Moreover, if certain conditions are 

met, the NMB can request that the President create an Emergency Board (PEB) to investigate 

and make recommendations. During the existence of a PEB. the status quo remains in effect 

During these disputes, I was in regular contact with the White House. Such contacts 

included my report and recommendations as to how best to proceed. The White House often 

followed my advice; but, not always. 

6. Please list and describe examples of when you made politically difficult choices that you 

thought were in the best interest of the country. 

I have made many diflicult choices during my career. And, that would certainly apply to 

the 16-plus years in which I have held leadership positions. But, l would not characterize 

those difficult choices as "political:' Perhaps the situations described in response to question 

5 would apply. 

Senate Homeland Security and Governmental Affairs Committee Page 14 
117 

7. What would you consider your greatest successes as a leader? 

I would like to think that I have had many successes as a leader. When serving in a 

leadership capacity, my highest priority is to engage and motivate employees. Considering 

the question in that context, I would have to say that being part of a FLRA leadership team 

that was ranked #1 in Leadership in 2015 and 2016 in the Best Places to Work rankings is 

certainly one of the most gratifying successes. 

8. What would you consider your greatest failure as a leader? What lessons did you take away 

from that experience0 

Given your authority as a leader, there arc often occasions when you feel it necessary to act 

quickly. During my years serving in a leadership capacity, I know there were a few 

occasions in which !made decisions to implement new policies or standards without seeking 

the prior input of employees. Almost always, the lesson learned from that experience is that 

it is usually worth taking the extra time to seek employee input. First, investing employees in 

a decision. even if you do not follow their input or advice, is good for morale, which 

translates into better performance and productivity. Second, involving employees in a 

collaborative decision-making process enhances the likelihood that the new decision will be 

accepted and enduring, without much push back or conflict. 

Ill. Policy Questions 

9. In October 2017, FLRA summarized what they consider to the most serious management and 

performance challenges facing the fLRA in FY 2018. These management challenges 

include: (I) Information Technology Security; and (2) Proper Handling of Records. 

a. If confirmed, how will you ensure that FLRA is vigilant in establishing an 

environment to monitor potential Information Technology (IT) risks, threats, 

and vulnerabilities? 

Over the past three years, our IT staff has taken huge strides in 

implementing our monitoring program and has become much more pro-active 

regarding IT security. If confirmed, I will advocate that adequate budgetary 

resources be committed to the IT department to deal with this important 

concern. 

b. If confirmed, how will you promote and ensure proper handling of records 

(hard copy and electronic) by staff, and verify that various authorities and 

capabilities are properly assigned, documented, managed and monitored? 

Senate Homeland Security and Governmental Affairs Committee Page 15 
118 

Our records need to be fully electronic by 2019. We are in the process of 

updating our records management policy which, regrettably, was last updated 

in 1986. As part of that update, we are reviewing our records schedule (how 

long to keep various records). And, we are reviewing our records by groups, 

rather than individually. This is likely to improve accuracy and efficiency. 

10. Former FLRA member Pizzella, in his dissents and concurrences, frequently criticized union 

parties to a dispute for pursuing positions or remedies that he viewed as wasting government 

resources, costing too much, being ill-motivated, or at odds with common sense-factors not 

grounded in the law. 

a. What is your view on deciding cases based on the facts as established in the record, 

and the law (the statute and precedent)-as opposed to independent views of right 

and wrong, how the government ought to work, and/or the role of unions? 

During my eight-year tenure at the FLRA, I have participated in over 1500 

decisions. In making these decisions, I apply pertinent principles of law to the 

pmticular facts of each case. 

h. If government efticiency and effectiveness are legitimate considerations in assessing 

the merits of a dispute, what role do you believe conduct plays in an agency's 

collective-bargaining, grievance procedure. and efficiency? 

To the extent that conduct implicates particular principles oflaw. then it should be 

considered. 

11. Please describe what impact proposed federal budget cuts, if implemented, will have to 

FLRA's ability to provide training to federal agencies and unions in understanding their 

rights and responsibilities under the Civil Service Reform Act and other relevant authorities? 

Budgetary matters, and certainly budget cuts, involve priorities and choices. In my 

view, outreach and training is a very important way in which the FLRA promotes and 

maintains stakeholder confidence in mission performance. When I was Chairman in 2013, 

the first year of sequestration, the possibility of having to cut training was certainly on the 

table. At the time, the FLRA had several unfilled vacancies. In collaboration with our 

leadership team, l decided that training was so important that we would not make cuts. We 

were able to avoid such cuts by delaying, and then staggering, the schedule for filling those 

vacancies. 

12. Please describe what impact proposed budget federal budget cuts, if implemented, will have 

to federal agencies' ability to train managers and employees regarding their rights and 

responsibilities under the Civil Service Reform Act and other relevant authorities? 

Senate Committee Page 16 
119 

It is noteworthy that the FLRA's various training programs (basic statutory rights, 

arbitration training, negotiability training, and training in problem solving techniques) are 

free for federal government employees. So, this is a good example of the FLRA being a 

small agency with a large mission and impact. If budget cuts force the FLRA to cut back on 

external trainings, there will be adverse rippling effects throughout the federal government 

The quality of other agencies' labor-management relations will be impaired. 

13. Please describe any previous experience-in the public or private sector-with handling 

whistleblower complaints, and what steps you took to ensure those individuals did not face 

retaliation and that their claims were thoroughly investigated? 

Please see my response to the Majority's question 9 above. 

14. If confirmed, how will you ensure that whistlcblower complaints are properly investigated? 

Please see my response to the Majority's question 9 above. 

IV. Accountability 

15. During your career as a federal employee, have you ever used a personal email account or 

device to conduct official government business? 

No. 

a. If so, please describe your general practice fi>r doing so, and what specific steps you 

have taken to ensure that federal records created using personal devices and accounts 

were preserved. 

16. During your career, has your conduct as a federal employee ever been subject to an 

Investigation or Audit by an Inspector General? If so, please describe. 

No. 

17. During your career, has your conduct as a federal employee ever been subject to an 

investigation by the Office of Special Counsel? If so, please describe. 

No. 

18. During your career as a federal employee, have you ever declined to implement 

recommendations made by the Office of Inspector General, the Office of Government Ethics, 

the Office of Special Counsel or the Government Accountability Office? If so, please 

describe. 

No. 

Senate Homeland Security and Governmental Affairs Committee Page 17 
120 

19. If confirmed, do you pledge to implement recommendations made by the Office of Inspector 

General, the Office of Government Ethics, the Office of Special Counsel and the 

Government Accountability Office? 

Yes. 

V. Relations with Congress and the Public 

20. If confirmed, how will you make certain that you wilt respond in a timely manner to Member 

requests for information? 

By responding immediately. 

21. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from the Ranking Member of any duly constituted committee of the Congress? 

Yes. 

22. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from members of Congress? 

Yes. 

23. If confirmed, do you commit to tnke all reasonable steps to ensure that you and your agency 

comply with deadlines established for requested information? 

Yes. 

24. If confirmed, do you commit to protect subordinate officials or employees from reprisal or 

retaliation for any testimony, briefings or communications with members of Congress? 

Yes. 

25. If confitmed, will you ensure that your staff will fully and promptly provide information and 

access to appropriate documents and officials in response to requests made by the Office of 

Inspector General, Office ofGovemment Ethics, the Office ofSpccial Counsel, the 

Government Accountability Office (GAO) and the Congressional Research Service') 

Yes. 

Senate Homeland Security and Governmental Affairs Committee Page 18 
121 

26. If confirmed, will you agree to work with representatives from this Committee and the GAO 

to promptly implement recommendations for improving [agency's] operations and 

effectiveness? 

If confim1ed, I agree to work with representatives from this committee and the GAO 

to promptly evaluate, and then implement, recommendations that would improve 

operations and effectiveness. 

27. If confirmed. will you direct your statT to fully and promptly respond to Freedom of 

Information Act requests submitted by the American people? 

Yes. 

28. If confirmed, will you ensure that political appointees are not inappropriately involved in the 

review and release of Freedom of Information Act requests? 

Yes. 

VI. Assistance 

29. Are these answers your own? Have you consulted with GSA or any other interested patiies? 

If so, please indicate which entities. 

These answers arc my own. 

Senate Homeland Security and Governmental Affairs Committee Page 19 
122 

I, Ernest DuBester , hereby state that l have read the foregoing Pre-Hearing Questionnaire and 

Supplemental Questionnaires and that the information provided therein is, to the best of my 

knowledge, cuiTent, accurate, and complete, 

This_a_rrday of October , 2017 

Senate Homeland Affairs Committee Page 
123 

Senator Heidi Heitkamp 

Post-Hearing Questions for the Record 

Submitted to Hon. Ernest W. OuBester 

Nominations of Hon. Ernest W. DuBestcr, Hon. Colleen n. Kiko, and .James T. Abbott to 

be Members, Federal Labor Relations Authority 

Tuesday, November 7, 2017 

1. There is an enormous backlog of cases at FLRA. Please explain what steps you will take 

to address this and what will you do to foster collaboration among all components of the 

agency? 

• What do you consider the role of the FLRA CG Regions to be in the process? 

At the hearing, there appeared to be confusion n:garding the nature and extent of the 

current backlog of cases at the FLRA. There also appeared to be a misunderstanding 

about the ditierenee between a backlog of cases pending before the three-member 

decisional component, called the Authority, and a backlog of pending charges that arise 

within the Otlice of General Counsel. These charges are filed v,;ith our various Regional 

Offices. And, the General Counsel's role is to decide whether a charge warrants the 

issuance of a complaint. 

I do not think it is accurate to say that the current backlog of cases is ''enormous.'' 

Within the Authority component, there are currently about 45 cases awaiting decision. 

Because the Authority currently lacks the full complement of three Members, when there 

is a split between the two sitting Members, those cases go into abeyance. In all of these 

pending cases. recommendations have been drafted. So, as soon as there is a full 

complement of Members, deliberation can begin immediately. 1 am confident that this 

rather small backlog can be eliminated within a few months. 

Within the OGC, there is currently no backlog. We have had an Acting General 

Counsel who is disposing of all charges filed. It is noteworthy, however, that the Acting 

GCs statutory authority ends on November 16, absent a GC nominee. So, hopefully, 

there wilt be a GC nominee soon. 

The current situation stands in stark contrast to that which existed in August of 

2009. when 1 began my tenure as a Member. and, on the same day, as a new GC. At that 

time. there was an "enormous·· backlog of over 400 cases. With the implementation of a 

multi-year corrective action plan, that backlog was eliminated by the end ofFY 2012. It 

is noteworthy, moreover, that at the end of FY 2012, not only had we eliminated the huge 

backlog of old cases. we also did not have any overage cases among the "new" cases 

tiled after August 2009. The GC had also eliminated the backlog of a comparable 

number of pending charges even before the end ofFY 2012. 
124 

At the beginning of 20B, the Authority again lost its quomm. My Republican 

colleague left the FLRA. And, my Democratic colleague's term expired. As Chairman, 

but sole Member, I was unable to issue decisions and a backlog of about !50 cases 

developed by the end ofFY 2013. This backlog was eliminated by the end ofFY 2015. 

2. Throughout your interviews you have made mention of the importance of training and 

education. You have also made mention of Alternative Dispute Resolution (ADR) and its 

use in the labor relations context. 

• Do you feel that alternative methods of resolution should become required actions 

attempted prior to bringing a claim before FLRA? Please explain in your answer 

how the efficiency of the Authority will be affected. 

At yesterday's hearing, at the prior Staff interview, and in responses to my 

questionnaire, I have stressed the importance of offering, and using where appropriate, 

ADR services to help the Federal Sector's labor-management community improve their 

labor relations programs. As mentioned. this is consistent with the FLRA's responsibility 

under Section 71 05( a)( 1 ). to "provide leadership and guidance." And, as also mentioned, 

in the FLRA 's most recent Strategic Plan, which is supposed to be in effect from 2015-

2018, the FLRA reaffirmed the importance of ADR to the FLRA's mission by stating in 

Strategic Goal Two (of only three goals): '"We will promote stability in the Federal labormanagement community by providing leadership and guidance through [ADR] and 

education." 

As I mentioned in my response to Question 7 (of the Committee's questionnaire), 

"success fiJI, voluntary ADR efforts can result in significant savings of staff and 

budgetary resources" for those in the labor-management community who use such 

services. That is one reason why "FLRA 's provision of clTective ADR services can have 

a beneficial rippling effect throughout the Federal government." And, this includes 

training in matters such as effective use of problem-solving techniques, building 

teamwork, and best practices for improving relationships. Not only do these subjects 

have a bearing on the FLRA's mission, they are central to its responsibility of helping the 

labor-management community to improve its labor-management relations program 

(emphasis added). 

That is why it is regrettable, in my view, that in recent months, the work of our 

Collaboration and ADR Office (CADRO) has been cut back. Outreach and training have 

almost been eliminated. And. the nature and extent to which CADRO is allowed to 

intervene in existing disputes, has been significantly curtailed. Based on my prior 

experience, l would find it hard to believe that a majority of this Committee, both 

Republicans and Democrats alike, would approve of these cutbacks. 

Notwithstanding the foregoing, I would tend to oppose that ADR becomes "required" 

before allmving matters to be brought before the FLRA. Such a requirement undem1ines 

the important "volitional" nature of ADR in the labor relations context. With collective 

bargaining, for example, I think it is important that the representatives from the labor-
125 

management community truly feel that they are the "decision-makers" even with the 

assistance of an intervening mediator. If agreements reached are to be enduring, it is 

important that the parties with the collective-bargaining relationship feel truly invested in 

the outcome and not feel that they were "compelled" to reach such an outcome. 

By the same token. that is why the FLRA's outreach and training is so important. For 

those in the labor-management community who do not have experience with ADR, the 

natural. if not automatic. inclination is to "dispute'' through litigation and adjudication. 

Before l conclude, I think it is worthwhile to share that there are examples in the 

labor relations context where ADR-type activity is required before the exercise of certain 

rights. 

For example, under the Railway Labor Act, the oldest of our three Federal labormanagement relations laws with jurisdiction over the airline and railroad industries, the 

parties are required to engage in ''mandatory mediation," often protracted in nature, 

before an impasse is declared. And, even under Section 71!9 of our Federal Statute, 

'·agencies and exclusive representatives" are required to use the services of the Federal 

Mediation and Conciliation Service before bringing a collective bargaining dispute to the 

FLRA's Federal Services Impasses Panel (FSlP). And, even then, the FSIP may use a 

ADR process, such as the FSIP from 2009-2016 which used exclusively the ADR '·medarb" process, to resolve collective bargaining disputes in the Federal sector. In this sense, 

Section 7!19 allows for a "double dose'' of ADR before disputes are resolved. 
126 

OPENING STATEMENT OF JAMES T. ABBOTI OF VIRGINIA 

TO BE A MEMBER OF THE FEDERAL LABOR RELATIONS AUTHORITY 

BEFORE THE COMMITIEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

NOVEMBER 7, 2017 

Good morning. Mr. Chairman, Members of the Committee, Senator Lankford and Senator Heitkamp. 

want to thank you for conducting this hearing at a time when so many other pressing issues are 

competing for your time and attention. I would also like to thank your Committee staff for the 

outstanding support which they provided to me as I prepared for this hearing. I appreciate your warm 

reception. 

1 am honored and humbled to have been nominated by President Trump to become a Member of the 

Federal Labor Relations Authority. If confirmed, it will be, for me, the highest privilege of my 

professional life. 

With me today are my husband of 21 years, Daniel Gri, and our sons, Caleb and Alfred who are the 

pride of my life. That Daniel is able to join me today is nothing short of a miracle. Just four months 

ago, he was on life support following a serious automobile accident. This is his first public outing since 

that accident and is testament to his indomitable spirit. I rely upon that spirit every day. My sister and 

brother-in-law, Linda and Don Walde, and my niece, Heather Legore, are here as well. 

My professional career has spanned 34 years, 33 devoted to public service. I learned about service and 

hard work from my parents and grandparents. Grandfather Whipple worked as a farmhand in Kansas 

in the 1910s, until he saved enough money to buy his own land. His farm survived the Great 

Depression through hard work and determination. He continued to farm well into his 80s. 

Grandfather Abbott singlehandedly operated a grist mill. He hired helpers only when, in his words, "I 

could pay a fair wage for a fair day of work." My mother, a nurse, and my father, a minister, served as 

missionaries in Congo where they built churches, to serve not just as centers of worship but to also 

serve as local medical clinics and schools. But, for me, the ultimate example of public service was my 

brother, Denis Abbott, who gave his life in service to his country in Pleiku, Vietnam. 

My 18 years as a labor and employment attorney with Department of Defense activities throughout 

the country, my four years as Deputy General Counsel for the Office of Compliance, and my ten years 

as Chief Counsel to three Members (and Chairmen) of the FLRA have prepared me to immediately 

assume all of the responsibilities of this important position. 

Before joining the FLRA as Chief Counsel, I sat at dozens of bargaining tables negotiating local and 

nationwide collective-bargaining agreements. Through those experiences, I learned firsthand how 

differences can be constructively resolved but also how they can end up in dispute. I have represented 

agencies before each regional office of the FLRA' s Office of General Counsel, and I have litigated cases 

before the Merit Systems Protection Board, the Equal Employment Opportunity Commission, and 

Federal Court. I have witnessed the dynamics of labor relations at work between first-line supervisors 
127 

and hard-working union stewards in a variety of settings, such as work floors where artillery equipment 

and attack helicopters are serviced and repaired. I have met with employees and union stewards at 

sites where the working conditions were difficult, even dangerous. I have had to tell first-line 

supervisors and generals that they were wrong and what they must do to comply with the Statute. 

Therefore, I understand why the protections of our Statute are so important to Federal employees. 

I believe that we can all agree that the Federal workforce in 20171ooks very different than it did in 

1978 when our Statute was enacted. For example, advances in technology have dramatically changed 

how Federal agencies carry out their day-to-day business. In 1978, computers were rare; email did not 

exist; and enemies of the United States did not have the means to instantaneously compromise entire 

swaths of records. In this changed environment, the Authority must clearly define what matters 

"affect working conditions" and those which constitute negotiable "conditions of employment." 

The Statute mandates that the Authority provide leadership to the labor-management relations 

community. But the Authority has been reluctant to address these important questions. In the past 

two years, the Authority's majority has dismissed part or all of the arguments raised by parties in 52% 

of its published decisions and those dismissals have impacted the outcome in one-fourth of those 

cases. It is difficult for the Authority to remain relevant and to provide leadership when it goes out of 

its way to avoid addressing difficult questions. 

In other areas, though, the Authority has gone too far. Five times since 2010, the Court of Appeals for 

the District of Columbia Circuit has reversed the Authority for going beyond the parameters of our 

Statute to interpret other statutes that do not fall within our area of expertise or power. In one 

notable example, the Court scolded the majority when it took upon itself to determine how much 

discretion Title 10 of the United States Code gave to the Secretary of the Air Force, a statute that 

concerns military preparedness. To remain relevant, the Authority must heed the cautions of Federal 

Courts. 

To that end, I pledge that, if I am confirmed, I will adjudicate all matters fairly and impartially, enforce 

the Statute as it is written, and respect judicial precedent. !look forward to working with my 

colleagues to ensure that the FLRA remains relevant and to drafting decisions that can be understood 

by laypersons as well as attorneys. 

It is my privilege to appear before you today. I am happy to answer any questions. Thank you. 
128 

UI~ITED STATES OFFICE OF 

GOVERNMENT ETHICS 

REDACTED 

---- * -------·--·----·----·-----------·-· 

The Honorable Ron Johnson 

Chairman 

Committee on Homeland Security 

and Governmental Affairs 

United States Senate 

Washington, DC 20510 

Dear Mr. Chairman: 

September 8, 2017 

In accordance with the Ethics in Government Act of! 978, I enclose a copy of the 

financial disclosure by James T. Abbott) who has been nominated by 

President Trump for position of Member, Federal Labor Relations Authority. 

We have reviewed the report and have obtained advice from the agency concerning any 

possible conflict in functions and the nominee's proposed duties. Also enclosed is an 

ethics the actions that the nominee will undertake to avoid conflicts of 

interest. a date for con1pliancc is indicated in the ethics 

fully comply within three months of confinnation w!th any action 

agreement. 

the nominee must 

in the ethics 

Based thereon, we believe that this nominee is in compliance with applicable laws and 

regulations governing conflicts of interest 

Sincerely, 

David J. Apol 

Enclosures R\E~#\CJE[') 

Acting Director and General Counsel 

-.---------·--------·-------~--- * '>'f: * ,!,; 120! NEW YORK AVENW·SUITE 500•WASHINGTON DC•20005 
129 

September 6, 2017 

Fred B. Jacob 

Solicitor and Designated Agency Ethics Official 

Federal Labor Relations Authority 

1400 K St., NW 

Washington, DC 20424 

Dear Mr. Jacob: 

The purpose of this letter is to describe the steps that I will take to avoid any actual or 

apparent conflict of interest in the event that I am confrrmed for the position of Member, Federal 

Labor Relations Authority. 

As required by 18 U.S.C. § 408(a), I will not participate personally and substantially in 

any particular matter in which I know that I have a fmancial interest directly and predictably 

affected by tlie matter, or in which I know that a person whose interests are imputed to me has a 

flnancial interest directly and predictably affected by the matter, unless I frrst obtain a written 

waiver, pursuant to 18 U .S.C. § 208(b )(1 ), or quaiify for a regulatory exemption, pursuant to 

18 U.S. C. § 208(b)(2). I understand that the interests of the following persons are imputed to 

me: any spouse or minor child of mine; any general partoer of a partoership in which I am a 

limited or general partner; any organization in which I serve as officer, director, trustee, general 

partner or employee; and any person or organization with which I am negotiating or have an 

arrangement concerning prospective employment. 

I will meet in person with you during the first week of my service in the position of 

Member in order to complete the initial ethics briefing required under 5 C.F.R. § 2638.305. 

Within 90 days of my confirmation, I will also document my compliance with this ethics 

agreement by notifying you in writing when I have completed the steps described in this ethics 

agreement. 

If I have a managed account or otherwise use the services of an investment professional 

during my appointment, I will ensure that the account manager or investment professional 

obtains my prior approval on a case-by-case basis for the purchase of any assets other than cash, 

cash equivalents, investment funds that qualify for the exemption at 5 C.F.R. § 2640.20l(a), or 

obligations of the United States. 

I understand that as an appointee' I wili be required to sign the Ethics Pledge (Exec. Order 

no. 13770) and that I will be bound by the requirements and restrictions therein in addition to the 

commitments I have made in this ethics agreement. 
130 

I have been advised that this ethics agreement will be posted publicly, consistent with 

5 U.S.C. § 552, on the website of the U.S. Office of Government Ethics with ethics agreements 

of other Presidential nominees who flle public fmancial disclosure reports. 

Sincerely, 

()?'14.~\...J.~ 

?:?ames T. Abbott 
131 

REDACTED 

HSGAC BIOGRAPHICAL QUESTIONS FOR 

EXECUTIVE NOMINEES 

1. Basic Biographical Information 

Please provide the following information. 

Position to WJticlt Yotj Jlave Been Jyominate£1. · 

Member, -~-----__ ]= ------Date of Nomination 

Federal Labor Relations Authority 

Qtlter Jl{mnes Used 

! Name Used 

I Middle Name ~j From 

First Name Last Name Wfu. (Month/Year) 

(Check box if 

estimate) 

l'11A --t---- Est 

fJ 

Est 

0 

1 

--~-

Name Used To 

(MonthlY ear) 

(Check box if 

estimate) 

Est 

I n 

Est 

0 
132 

Spt>lise's OtlterNames tlseil 

(curtentspouse only) 

II Name Used Name Used To From 

First Name Middle Name Last Name Suffix (Month/Year) (MonthiYear) 

(Check box if (Check box if 

estimate) estimate) ~-·---·--·-~ 

N/A "" Est 

0 0 

- Est Est 0 0 

2 
133 

.....••. · •.>···) ... > ·•···· ... ···•···•·· 

• fc't;;,'J',;;,.., : 18) . . . . . '.:'_.,< ... '-'.'_.~·::~~?~70~'(~''! /····.· ... ·. ·"· ,_, · .. · ............ · .. ·· 

First Name Middle Name Last Name Suffix 

Caleb Nathanl'al Gri-Abbott 

' 

2. Education 

List all post-secondary schools attended. 

I Type of School Date Began Date Ended 

~ School Namcof I (vocational/technical/trade schooL School (month/year) (check Date School college/university/military college, (month/year) box if estimate) correspondence/distance/extcnsion/onllne 

school) 

(check 

estimate) 

box if (check ''present" box 

Degree ~ 

0~l ~ity School ofLaw ------······-"·-;- __if still in''~--.- m·--~ !--::-::·-·---· Kst Est Present 05/1983 08~1980 Q iJS!I983 0 0 

Beasley 

Schoo! of 

Law 

Malone College/University Est g,, l'res:ent BA 0511980 

College 09/1976 0 05/1980 0 0 

(now 

University) 

E<l Est Pr('se11t 

0 0 0 ' I 

r-· E<l t<:st Present j Q 0 

L.--. 

3 
134 

3. Employment 

(A) List all of your employment activities, including unemployment and self-employment. 

If the employment activity was military duty, list separate employment activity periods to 

show each change of military duty station. Do not list employment before your 18th 

birthday unless to provide a minimum of two years of employment history. 

Ty[lc of Emu!oyment 

(Active Military Duty Station, .!2lili Natio11al Guard/Reserve, Emuloyment 

USPHS Commissioned Corps, .!2lili Ended 

Other Federal employment, Name of Your Most Recent ~ Em[!lo~·ment (month/year) State Government (Non~ Employer/ Position (City and Began (check box if 

Federal Employment), Self- Assigned Duty State (month/year) estimate) 

employment, Unemployment, Station ~ only) (check box if (check Federal Contractor, Non- e.."'timate) "present'' box 

Government Employment if still 

(excluding sclt'cmployment), employed) 

Other --- Other Federal lpederal Labor Chief Counsel Washing! 9/2007 Ptcsent 

~ Relations Authority to the on, DC 

Chairman 

Other Federal Congressional Office J Deputy Washing! !0104 9107 

of Compliance General on, DC 

Counsel 

Other Federal Defense Contract Senior Carson, 8196 10/04 

Management Agency Associate CA 

District 

Counsel, 

Personnel and 

Ethics 

Other Federal Corpus Christi Anny Chief Counsel Corpus 1190 81% 

Depot Christi, 

TX 

Other Federal U.S. Army Depot Labor and Chamber 8196 1/90 

Systems Command Ethics Counsel sburg, 

PA 

Non-Govt Employment Nitterhouse Staff Attorney Chamber 3185 5;~6 -- Corporation sbw·g, 

PA 

County Government 39" Judicial District Judicial Law Chamber 8183 2185 

Comt of Common Clerk to the sburg, 

Pleas President PA 

Judge 

4 
135 

(B) List any advisory, consultative, honorary or other part-time service or positions with 

federal, state, or local governments, not listed elsewhere. 

Date Service Date Service Ended 

Name of Government I Name of Position ~ (month/year) (check box 

Entity I (~~~~k" oru 

if estimate) (check 

"present" box if still 

estimate} serving) 

N/A Est Est Present 

n u 0 

Esl Est Preseut 

0 0 0 

Est Est Present 

0 0 0 

·------

4. Potential Conflict of Interest 

(A) Describe any business relationship, dealing or financial transaction which you have had 

during the last 10 years, whether for yourself, on behalf of a client, or acting as an agent, 

that could in any way constitute or result in a possible conflict of interest in the position to 

which you have been nominated. 

None. 

(B) Describe any activity during the past 10 years in which you have engaged for the 

purpose of directly or indirectly influencing the passage, defeat or modification of any 

legislation or affecting the administration or execution of law or public policy, other than 

while in a federal govemment capacity. 

None. 

5. Honors and Awards 

Ust all scholarships, fellowships, honorary degrees, civilian service citations, military 

medals, academic or professional honors, honorary society memberships and any other 

special recognition for outstanding service or achievement. 

Commander's Award for Civilian Service- Department of the Army (8/96) 

Meritorious Civilian Servke Award- U.S. Defense Contract Management Agency (8/2002) 

5 
136 

6. Memberships 

List all memberships that you have held in professional, social, business, fraternal, 

scholarly, civic, or charitable organizations in the last 10 years. 

Unless relevant to your nomination, you do NOT need to include memberships in 

charitable organizations available to the public as a result of a tax deductible donation of 

$1,000 or less, Parent-Teacller Associations or other organizations connected to schools 

attended by your children, athletic clubs or teams, automobile SIIPJ>ort organizations (such 

as AAA), discounts clubs (such as Groupon or Sam's Club), or affinity 

memberships/consumer clubs (such as ft·cquent flyer memberships). 

Name of Organization Dates of Your MembershiQ Position(s) Held (You may approximate.) 

Church of the Holy Comforter,----f-::-:::-:-.----------~--~ 

7/20 16 - Present ,_Stewardship Committee, Lay 

Vienna, Virginia Liturgist 

Senior Executives Association 8/20 I 0- Present Member; Mentor in SEA's 

mentoring program with Young 

Government Leaders Association -- M3 for Veterans 5t20l7 December 20 !7 Event Planning 

Committee 

Log Cabin Republicans, DC 2005- Present Member; Board of Directors (20 14-

16) 

I 

Log Cabin Republicans, Northern 2005 -Present Member; Board of Directors -- Virginia (@2009-10) 

LGBT Bar Associati.on of DC (@20 12 -Present) Member 

Federal GLOBE (2004-Present) Member; Board of Directors (2008-

Present) 

Foundry United Methodist Church, (2004-20 !5) Member; Governance Board 

Washington, DC (@2012-15) 

Society of Federal Labor & (2007 ·Present) Member 

Employee Professionals 

Dulle8 f,ilii1gles (2005-2015) ~ember 

D.C. Partners {@2007·11) Member 

6 
137 

7. Political Activity 

(A) Have you ever been a candidate for or been elected or appointed to a political office? 

No. 

Year(s) Election 

Name of Office Elected/ Appointed/ Held or Tenit of Service 

Candidate Onlv AQ[lointment (if applicable) 

Made 

(B) List any offices held in or services 1·endered to 11 political party or election 

committee duriug the last ten years that you have not listed elsewhere. 

None. 

Name of Party/Election Office/Services Rendered Resnonsibilities Dates of 

Committee Service f-------

I 

7 

I 

i 
138 

(C) Itemize all individual political contributions of $200 or more that you have made in the 

past five years to any individual, campaign organization, political party, political action 

committee, or similar entity. Please list each individual contribution and not the total 

amount contributed to the person or entity during the year. 

Name of Recipient Amount Year of Contribution, 

Donald Cf!:urnp $lOO:fJO __ ____, 1omil6 

Donald J.Tru;;;p- $100,00 10/2016 

Donald .L Trump $250.00 10/2016 

Donald J. Trump $250.00 912016 

Donald J. Tmmp $250.00 912016 

Barbani comstock t;;;: co!ii,:ess $100.00 912016 

Donald J. Trump $100 812016 

Donald J. Trump $150.00 8/2016 

Donald J. Trump $150.00 812016 

I 

Donald J. Trump $100.00 8/2016 

Log Cabin' $224.00 8/2016 

Donald J. Trump $250.00 8/2016 

Donald J. Trump $250.00 ·---- 8/2016 

Donald J. Trump $150.00 8/2016 

8 
139 

Log Cabin $220.00 7/2016 

Donald J. Trump $200.00 7/2016 

Trump for President $!00.00 5/20!6 

~andy Forbes tor Congress $50.00 5/2016 

Log Cabin Republicans $10.00 5/2016 

Trump for President $50.00 5/2016 

I 

Randy Forbes for Congress $50.00 4/2016 

Cruz for President $50.00 3/2016 

Trump for President $50.00 2/2106 ' 

Rubio for President $25.00 2/20!6 

Cruz tor President $25.00 l/2016 

Carly Fiorina for President $25.00 -- 1/20!6 

- Cruz tor President $25.00 12/2015 

Carly Fiorina for President $25.00 12/2015 

I Cruz for President $25.00 ll/2015 

Carly Fiorina tor President $25.00 ll/2015 

early Fiorina lor President $50.00 9/2015 

9 
140 

Cruz for President I $100.00 4/2016 

Friends of Scott Walker $100.00 1/2016 

- Friends of Scott Walker $100.00 12/2015 

Friends of Scott Walker $100.00 1 !/2015 

Friends of Scott Walker $100.00 10/2015 

Friends of Scott Walker $100.00 912015 

~--;;-;--,----- Friends of Scott Walker $100.00 8/2015 

Friends of Scott Walker $100.00 712015 

Friends of Scott Walker $100.00 6/2015 

Friends of Scott Walker $100.00 5/2015 

Friends of Scott Walker $100.00 4/2015 

Friends of Scott Walker $100.00 312015 

Fairfax County Republican Committee $85.00 2/2013 

IJserend our Nation PA_C ______ $250.00 t-u/2o1s 

'' Jeannemarie Devolites Davis for Lieutenant Governor $100.00 2/2013 

GOP Proud $100.00 112013 

Log Cabin $50.00 112013 

10 
141 

~-------------

Log Cabin Republicans $100:00 1112012 

Log Cabin $100.00 10/2012 

-Log Cabin Republicans $700.00 9/2012 

Log Cabin Republicans $100.00 8/2012 

Log Cabin Republicans $100.00 7/2012 

Log Cabin Repubiicans $100.00 6/2012 

Romney for President $2000.00 812012 

._________ 

8. Publications and Speeches 

(A) List the titles, publishe1·s and dates of books, articles, reports or other published 

materials that you have written, including articles published on the Internet. Please 

provide the Committee with copies of all listed publications. In lieu of hard copies, 

electronic copies can be provided via e-mail or other digital format. 

None. 

Datels) or Publication 1---·------------·--·----------------1 

11 

i 

! 
142 

-

I 

----

(B) List any formal speeches you have delivered during the last five years and provide 

the Committee with copies of those speeches relevant to the position fot· which you 

lmve been nominated. Include any testimony to Congress or any other legislative or 

administrative body. These items can be provided electronically via e-mail or othet· 

digital format. 

None. 

i 

Title!fopic Place/Audience Oate(s) of Speech ---------------1------=====--------+------====-___; 

12 
143 

(C) List all speeches and testimony you have delivered in the past ten years, except for 

those the text of which you are providing to the Committee. 

None. 

r----

Title Place/ Audience Date(s) of Snccch 

I 

13 
144 

-------- ------,----------------~--------------------, 

--------------1-----------i-----------j 

9. Criminal History 

Since (and including) your 181ll birthday, has any of the following happened? 

No. 

Have you been issued a summons, citation, or ticket to appear in court in a criminal proceeding against yon? 

(Exclude citations involving traffic infractions where the fine was less than $300 and did not include alcohol or drugs.) No. 

Have you been arrested by any police officer, sheriff, marshal or any other type of law enforcement official? 

No. 

Have you been charged, convicted, or sentenced of a crime in atly court? No. 

Have you been or are you currently on pt·obation or parole? No. 

Al'e you currently on trial or awaiting a trial on criminal charges? No. 

To your knowledge, have you ever been the subject or target of a federal, state or local Cl'iminal investigation? 

No. 

If the answer to any of the questions above is yes, please answer the questions below for 

each criminal event (citation, arrest, investigation, etc.). If the event was an investigation, 

where the question below asks fot· information about the offense, please offer information 

about the offense under investigation (if !mown). 

NfA. 

14 
145 

A) Date of offense: 

a. Is this an estimate (Yes/No): 

B) Description of the specific nature of the offense: 

C) Did the oftlmsc involve any of the following? 

l) Domestic violence or a crime of violence (such as battery or assault) against your child, dependent, 

cohabitallt, spouse, former spouse, or someone with whom you share a child in common: Yes I No 

2) Firearms or explosives: Yes I No 

3) Alcohol or drugs: Yes I No 

D) Location where the offense occurred (city, county, state, zip code, country): 

E) Were you atTested, summoned, cited or did you receive a ticket to appear as a result of this offense by any 

police officer, sheriff, marsha! or any other type of!aw enforcement official: Yes I No 

l) Name of the law enforcement agency that aJTested/citedlsummoned you: 

2) Location of the law enforcement agency (city, county, state, zip code, country): 

F) As a result of this offense were you charged, convicted, cun·ently awaiting trial, and/or ordered to appear in 

comt in a criminal proceeding against you: Yes I No 

I) If yes, provide the name of the court and the location of the court (city, county, state, zip code, 

country): 

2) If yes, provide all the charges brought against you for this offense, and the outcome of each charged 

offense (such as fuund guilty, found not-guilty, charge dropped or "nolle pros," etc). Ifyou were found 

guilty of or pleaded guilty to a lesser offense, list separately both the original charge and the lesser 

offense: 

3) Lfno, provide explanation: 

G) Were you sentenced as a result ofthis offense: Yes I No 

H) Provide a description of the sentence: 

I) Were you sentenced to imprisonment for a term exceeding one year: Yes I No 

J) Were you incarcerated as a result of that sentence for not less than one year: Yes I No 

K) lfthe conviction resulted in imprisonment, provide the dates that you actually were incarcerated: 

L) If conviction resulted in pmbation or parole, provide the dates of probation or parole: 

15 
146 

M) Are you currently on trial, awaiting a trial, or awaiting sentencing on criminal charges for this offense: Yes I 

No 

N) Provide explanation: 

16 
147 

10. Civil Litigation and Administrative or Legislative Proceedings 

I 

(A)Since (and including) your 18th birthday, have you been a party to any public record 

civil court action or administrative or legislative proceeding of any kind that resulted in (1) 

a finding of wrongdoing against you, or (2) a settlement agreement for you, or some other 

person or entity, to make a payment to settle allegations against you, or for you to tltl{e, or 

refrain from taking, some action. Do NOT include small claims proceedings. 

Date Claiwl§yit Namc(s) of Was Filed or 

Legislative Court Princil!al Parties Nature of Action/Proceedini! Results of Name Involved in Proceedin2,s Action/Proceeding Action/Proceeding Began 

'®7-8/98 ____ MSPB Sheila To the best of my recollection Settlement 

Gray/ Anthony (on or around July- August Agreement 

Carr/Defense 1998), a fanner direct report 

Contract made various assertions about 

Management me when she challenged her 

Agency removal fi'Om the Federal 

service for poor performance 

before the Merit Systems 

Protection Board (Sheila Gray 

v. DOD, #SP-0432-98-0614-1· 

l ). As l recall, the deciding 

official in the removal action 

was my supervisor (Anthony 

Carr, General Counsel). I was 

the proposing official after 

Gray failed to improve her 

performance during a 

perfonnance improvement 

period (PIP). As 1 recall, she 

alleged in her appeal to the 

MSPB that Carr's removal 

action was in retaliation tOr an 

earlier (l believe Office of 

Special Counsel) complaint 

she had previously filed 

against Can·. As I mentioned 

above, 1 believe she made 

some various assertions that 

Carr permitted other Agency 

officials, including a military 

JAG officer and me, to 

"harass" he1·. To the best of 

my knowledge, the case was 

never adjudicated. As I recall, 

the agency negotiated a 

nuisance lump-sum settlement 

in exchange for Gmy's 

resignation and an agreement 

that she would never apply for 

fururc Federal employment. 

17 
148 

(B) In addition to those listed above, have you or any business ofwhielt you were an officer, 

director or owner ever been involved as a party of interest in any administrative agency 

proceeding or civil litigation? Please identify and provide details for any proceedings or 

civil litigation that involve actions taken or omitted by you, or alleged to have been talien or 

omitted by you, while serving in your official capacity. 

None. 

-------r--

Name(s) of ~ ~ Princinat Parties 

Date Claim/Suit Name I 1 d . Nature of Action/Proceeding nvo ve m Results of 

~ Action/Proceeding Action/Proceeding 

----

---· 

18 
149 

11. Breach of Professional Ethics 

(A) Have you ever been disciplined or cited for a breach of ethics or unprofessional 

conduct by, or been the subject of a complaint to, any court, administrative agency, 

professional association, disciplinary committee, or other professional group? 

Exclude cases and proceedings already listed. 

No. 

Name of ' Date I Describe Citation/Disci(llinary Agency/ Association/ Citation/Discil!linary Action/Complaint Results of Disciplinai'Y 

Committee/Group Action/Cornlllaint Action/Comlllaint 

Issued/Initiated 

(C) Have you ever been fired from a job, quit a .iob after being told you would be fired, 

left a ,job by mutual agreement following charges or allegations of misconduct, left a 

job by mutual agreement following notice of unsatisfactory performance, or 

received a written warning, been officially reprimanded, suspended, or disciplined 

for misconduct in the workplace, such as violation of a security policy? 

' 

No. 

12. Tax Compliance 

(This information will not be published in the record of the hearing on your nomination, 

but it will be retained in the Committee's files and will be available for public inspection.) 
150 

REDACTED 

13. Lobbying 

In the past ten years, have you registered as a lobbyist? If so, please indicate the state, 

federal, or local bodies with which you have registered (e.g., House, Senate, California 

Secretary of State). 

No. 

21 
151 

14. Outside Positions 

X See OGE Form 278. (It: for your nomination, you have an 

Executive Branch Personnel Public Financial Disclosure Report, you may check the box here 

this section and then 

For the preceding ten calendar years and the current calendar year, report any positions 

held, whether compensated or not. Positions include but are not limited to those of an 

officer, director, trustee, general partner, proprietor, representative, employee, or 

consultant of any corporation, firm, partnership, or other business enterprise or any nonprofit m·ganization or educational institution.~ positions with religious, social, 

fraternal, or political entities aud those solely of an honorary nature. 

~.~ 

(~firm. 

~ Position Held Position Address of partnership, other 

business enterprise, Position Held From Held To Organization Organization other non~profit (month/year) (month/year) 

organization, 

educational 

institution) 

' 

I 

--

22 
152 

15. Agreements or Arrangements 

X See OGE Form 278. (If, for your nomination, you have completed an OGE Form 278 

Executive Branch Personnel Public Financial Disclosure Report, you may check the box here to 

complete this section and then proceed to the next section.) 

As of the date of filing your OGE Form 278, report your agreements or arrangements for: 

(1) continuing participation in an employee benefit plan (e.g. pension, 401k, deferred 

compensation); (2) continuation of payment by a former employer (including severance 

payments); (3) leaves of absence; and (4) future employment. 

Provide information regarding any agreements or arrangements you have concerning (1) 

future employment; (2) a leave of absence during your period of Government service; {3) 

continuation of payments by a former employer other than the United States Government; 

and (4) continuing participation in an employee welfare or benefit plan maintained by a 

former employer other than United States Government retirement benefits. 

----·-- Status and Terms of Any Date Agreement or Arrangement Parties (month/year) 

' 

·--'-· 

16. Additional Financial Data 

All information requested under this heading must be provided for yourself, your spouse, 

and your dependents. (This information will not be published in the record of the hearing 

on your nomination, but it will be retained in the Committee's files and will be available for 

public inspection.) 

REDACTED 

I 
153 

REDACTED 

SIGNATURE AND DATE 

I hereby state that I have read the foregoing Statement on Biographical and Financial Information and that the information 

provided therein is, to the best of my knowledget current, accurate, and complete. 

This ~ay of Jlft, 2017 

30 
154 

U.S. Senate Committee on Homeland Security and Governmental Affairs 

Pre-Hearing Questionnaire 

For the Nomination of James Thomas Abbott to be a Member of the 

Federal Labor Relations Authority 

I. Nomination Process and Conflicts of Interest 

l. Did the President give you specific reasons why he nominated you to be a member of the 

Federal Labor Relations Authority (FLRA)? 

No. 

2. Were any conditions. expressed or implied, attached to your nomination? If so, please 

explain. 

No. 

3. Have you made any commitments with respect to the policies and principles you will 

attempt to implement as a member of the FI.RA? If so, what are they, and to whom were 

the commitments made? 

No. 

4. Are you aware of any business relationship, dealing, or financial transaction that could 

result in a possible con1lict of interest tor you or the appearance of a contlict of interest? 

If so, please explain what procedures you will use to recuse yourself or otherwise address 

the conflict. And if you will recuse yourself; explain how you will ensure your 

responsibilities are not affected by your recusal. 

No. I have completed the Executive Branch Public Financial Disclosure Form. The form was 

reviewed, and approved, by the Solicitor of the Federal Labor Relations Authority (Designated 

Agency Ethics Official) and the Office of Government Ethics. 

II. Background of the Nominee 

5. What specific background, experience, and attributes qualify you to be a member of the 

FLRA? 

Since 2007, I have served as Chief Counsel to three Members/Chairmen of the FLRA. During my 

time in these key leadership positions, I have championed the FLRA's strategic goals to promote 

efficient case processing, employee engagement, and outreach to the Federal labormanagement community. 

But, from my perspective, the most valuable experience that I bring to the position of Member 

is the breadth, depth, and scope of twenty-one (21) years of experience (preceding the FLRA) 

Senate Homeland Security and Governmental Affairs Committee Page 1 
155 

during which I engaged in collective bargaining and labor-management relations at industrial 

military worksites, major-subordinate commands, and headquarters complexes. Throughout 

those experiences, I have sat at the bargaining table to negotiate local and nationwide collective 

bargaining agreements and have litigated every category of case which comes to the FLRA for 

resolution and before every regional office of the FLRA as well as before our sister agencies, the 

MSPB and EEOC. I began my Federal attorney career as a personnel and labor attorney working 

with first-line supervisors and union stewards in industrial settings such as Letterkenny Army 

Depot and as Chief Counsel at Corpus Christi Army Depot (often meeting on the work floor in 

coveralls or climbing into an airplane fuselage in protective gear amidst hazardous materials and 

working conditions to evaluate the merits of a pending grievance or unfair labor practice charge) 

to creatively resolve workplace disputes before they became grievances. Later, in senior 

positions with the Defense Logistics Agency and Defense Contract Management Agency, I 

engaged with agency heads and national union leaders to achieve consensus on some of the 

most significant labor issues of the time including implementation oft he Department of Defense 

National Security Personnel System. 

The opportunities to serve in locales as diverse as Central Pennsylvania, South Texas, Los 

Angeles, California, and then in Washington, DC also gave me a unique perspective on how 

legislation and policies established in the nation's capital affect, foster, or impede positive 

working relationships in real work environments and impact the day-to-day working life of 

employees and supervisors. For me, the impact and effect of the law and Authority decisions 

are not simply abstract concepts or legal issues to be debated but are realities that are lived out 

every day by federal employees in their workplaces. 

6. Please describe: 

a. Your leadership and management style. 

Managing least is managing best. In my experience and in practice, an effective manager 

establishes priorities and direction but creates an environment in which their employees are 

afforded wide latitude and discretion to do their job. For me, as a leader, this environment 

fosters creativity among those who serve on my team and leads to effective and productive 

results and decisions which are far better than I could have reached on my own. 

b. Your experience managing personnel. 

Chief Counsel, Corpus Christi Army Depot 5 employees 

Senior Associate District Counsel, Personnel and Ethics, Defense Contract Management 

Agency West- directly supervised military and civilian staff of Immediate Office of DCMAW 

and managed the Personnel/Labor and Ethics Program- 35 attorneys at field activities west 

of Mississippi River 

Deputy General Counsel, Office of Compliance- 5 employees, 8 contractors 

Senate Homeland Security and Governmental Affairs Committee Page 2 
156 

Chief Counsel to the Member, Federal Labor Relations Authority- 6 employees 

As Chief Counsel to the Acting Chairman (2017)- additional duties include 

supervising staffs of Vacant Member, Case Intake and Publication, and 

Collaboration and Alternative Dispute Resolution Office- 12 employees 

• As Chief Counsel to the Chairman (2007-08)- supervised a consolidated staff of 

attorneys and Case Intake and Publication- 21 employees 

c. What is the largest number of people that have worked under you? 

35 

III. Role of Member, FLRA 

7. Please describe your view of the agency's core mission and a member's role in achieving 

that mission. 

The FLRA's core mission is clearly defined by Statute (5 U.S.C. §§ 7101-7135)). Under the 

construct of our Statute, the FLRA is to promote stable and constructive labor relations in the 

Federal Government because positive relationships between labor organizations and Federal 

agencies contribute to an effective and efficient Government. 

A Member's role is similarly defined by the Statute. Collectively, the three Members serve as a 

quasi-judicial panel which makes final determinations on the appropriateness of bargaining 

units and adjudicates unfair labor practices (ULPs), exceptions {appeals) from arbitration 

awards, and matters concerning the negotiability of various matters. 

8. Please describe how you anticipate, if contirmed, working with other FLRA members to 

promote the agency's core mission. 

Members carry the responsibility to carefully and independently consider the entire record and 

positions of the parties, to apply the Statute, and arrive at a fair and impartial decision on any 

matter that is brought before the FLRA. In order to carry out this responsibility, effectively and 

efficiently, it is imperative that Members work together on strategies to promptly adjudicate 

cases and to ensure that his/her staff complies with the timeliness goals established by, and in 

conjunction with, the Chairperson. I have known, and collegially worked with, Member 

DuBester since 2009 and previously worked with Member/Chair-designee Kiko when she 

served as General Counsel of the FLRA. Therefore, I have every confidence that immediately 

we will be able to work constructively together to tackle the existing backlog of cases. 

a. Please describe prior work experience that demonstrates your capacity to work with 

FLRA members of a different party affiliation. 

As Chief Counsel to three Members of the FLRA, I routinely discussed positions, alternatives, 

and approaches in cases of first impression and those with potentially broad Governmental 

Senate Homeland Security and Governmental Affairs Committee Page 3 
157 

impact with my colleague Chief Counsels in order to find areas of agreement, consensus, and 

common ground. During two extended periods when my Member office was vacant 

(without a confirmed Member), I reported to and prepared decisions in accordance with the 

priorities and perspectives of the sitting Chairperson. In both instances, the Chairpersons, to 

whom I reported, were of different political affiliation than the Member I had previously 

served. 

9. Protecting whistleblower confidentiality is of the utmost importance to this Committee. 

a. During your career, how have you addressed whistleblower complaints? 

I have not had the opportunity to address whistleblower complaints. 

b. How do you plan to implement policies within the FLRA to encourage employees to 

bring constructive suggestions forward without the fear of reprisal? 

The Authority is in full compliance with the annual notification requirements set forth in 

5 U.S.C. § 2302(c). An annual notice (most recently issued on January 12, 2017) reminds 

employees of their rights under the Civil Service Reform Act, the Whistleblower Protection 

Act, and the Whistleblower Protection and Enhancement Act and informs how employees 

may address or raise such matters. I will continue to ensure that our policies and practices 

comply with all statutory and regulatory protections. 

c. Do you commit without reservation to work to ensure that any whistleblower within 

FLRA docs not face retaliation? 

Yes. 

d. Do you commit without reservation to take all appropriate action if notified about 

potential whistleblower retaliation? 

Yes. 

10. What are the most significant challenges facing FLRA as an institution? If confirmed, 

what steps will you take to address these challenges? 

The most significant internal challenge is to ensure that the FLRA's most important resource- its 

employees- are appropriately classified and that staffing is appropriately distributed. As of this 

date, in the Authority component of the FLRA, 41.6% of staffed positions are classified as 

supervisors and 12.5% as SES (agency-wide 30.8% and 11.6% respectively). The leadership of the 

Authority needs to reassess and ensure that staffing decisions are prioritized, that the most 

critical positions are filled, that positions are appropriately classified, and that the organizational 

structure contributes to effective operations and the timely issuance of impartial, clear, and 

quality decisions. 

Senate Homeland Security and Governmental Affairs Committee Page 4 
158 

The most significant external challenge faced by the FLRA is what I would describe as a 

credibility and relevance gap with the Federal labor-management community. It is telling that 

for at least two years, there has been a decrease in filings with the FLRA. I believe that this 

decline has resulted, in part, from the increased reliance by the immediate-past majority on 

procedural technicalities to dismiss an inordinate number of cases without any consideration of 

the actual merits of the parties' arguments (see e.g., U.S. DOD Education Activity, U.S. DOD 

Dependent Schools, 70 FLRA 84 (2016) (then-Member Pizzella dissenting); U.S. Dep't of HHS, 

Nat'llnstitute of Environmental Health Sciences, 68 FLRA 1049 (2015) (then-Member Pizzella 

dissenting); AFGE, Local1897, 67 FLRA 239 (2014) (then-Member Pizzella dissenting); AFGE, 

Loca/1897, 67 FLRA 239 (2014) (then-Member Pizzella concurring); AFGE, Local3955, Council of 

Prisons Local 33, 65 FLRA 887 (2011) (Member Beck dissenting)). 

IV. Policy Questions 

II. The Collaboration and Alternative Dispute Resolution Office (CARDO) at FLRA 

provides intervention and dispute resolution services, which frequently helps parties 

resolve disputes short of a formal decision, thereby saving the parties' and FLRA 's 

resources (Government resources) that would otherwise be devoted to litigating and 

deciding the dispute. Do you plan to continue supporting CADRO and offering the 

parties assistance in establishing/ maintaining constructive relationships? 

Yes. 

12. What is your assessment of the current state of federal labor-management relations? If 

you believe that improvements can be made, in what areas should there be improvement 

and how can this be accomplished? 

I would describe the current state of federal labor-management relations as in transition with 

the advent of a new Administration and new leadership coming to the Office of Personnel 

Management. The FLRA can contribute immediately by addressing the backlog of cases, which 

has grown without a full complement of Members, by issuing timely and clear decisions. 

13. Given your experience as a counsel at the FLRA, do you believe that improvements 

should be made to the Federal Service Labor-Management Relations statute? If so, what 

improvements can and should be made? 

For nearly 38 years, the Statute for the most part has served the federal labor-management 

community quite well. However, the Federal workforce in 2017 looks very different and faces 

very different challenges than did the federal workforce in 1978 when the Statute was enacted. 

When the Statute was enacted, computers were not common, and email was unheard of, in the 

Federal workplace. The ability of countries, groups, and individuals to immediately access and 

cause substantial harm to the Government's cyber systems is just one dynamic that Congress 

could not have contemplated in laying out the framework oft he Statute. 

Senate Homeland Security and Governmental Affairs Committee Page 5 
159 

Thus, at least a limited refresh of the Statute is warranted. Several examples: 

• Section 7106(a)(l) reserves to Federal agencies the right to determine their "internal 

security practices" and§ 7112(b)(6) excludes from bargaining-unit eligibility employees 

who are engaged in work that "directly affects national security." Disagreements 

concerning what matters concern "internal security" and what duties "directly affect" 

national security are frequently disputed before the FLRA. Federal Courts have 

questioned whether the FLRA should have any role in determining what matters 

concern internal security practices, what matters affect national security, or the scope 

of military authority and readiness because those matters do not fall within the 

expertise of the FLRA. See e.g., U.S. DOl, INS v. FLRA, 975 F.2d 218, 223 (5th Cir.1992); 

U.S. Dep't of the Navy v. FLRA, 665 F.3d 1339, 1348 (D.C. Cir. 2012); U.S. Dep't afthe Air 

Force, Luke AFB v. FLRA, 844 F.3d 957, 961 (D.C. Cir. 2016). 

• Within Title V, Congress established various avenues of redress for Federal employees, 

including the right to file grievances for collective bargaining agreement (CBA) 

violations, to file charges with the FLRA's Office of the General Counsel (OGC) regional 

offices for alleged ULPs, and to file appeals of adverse disciplinary or performance-based 

actions. Just as with Title VII, Congress established choice-of-forum provisions so that 

employees and union representatives would have the right to challenge grievances or 

ULPs in one forum or the other but not in more than one. The Statute includes two such 

choice-of-forum provisions. Section 7116(d) precludes the filing of a grievance and a 

ULP charge over the same "issue"; section 7121(e)(1) precludes the filing of a grievance 

and appeal to the MSPB over the same "matter." Noting the different terms used in§ 

7116(d) and§ 7121(e)(1), the FLRA has routinely interpreted that the use of two similar, 

but different, terms permits a grievant and/or union to file concurrent complaints for a 

contractual ULP through grievance procedures and a statutory ULP charge before a FLRA 

regional office even when both actions arise out of the same facts and circumstances. 

Congress should clarify whether the term "issue" in§ 7116(d) and the term "matter" in 

§ 7121(e)(1) were intended to mean different things or were intended to preclude 

duplicative filings that arise out of the same facts and circumstances as with all other 

choice-of-forum provisions contained throughout Title V and Title VII. 

FLRA decisions concerning exceptions from arbitral awards generally are not appealable 

to Federal court as are decisions concerning ULP charges and negotiability disputes. See 

5 U.S.C. § 7123(a). But, as noted above, the challenges faced by Federal agencies in 

2017 are very different than the challenges in 1978. I doubt that when the Statute was 

enacted in 1978 that Congress anticipated that arbitrators would be called upon to 

make determinations such as: when, how, and whether a Federal agency may restrict 

employees from accessing personal accounts on their Government computers following 

repeated cyber attacks on its computer systems (see e.g., U.S. DHS U.S. ICE, 67 FLRA 501 

(2014) (then-Member Pizzella dissenting); how a Federal agency allocates its budget 

(see e.g., U.S. Department of Treasury, IRS, Ogden Service Center, 69 FLRA 599 (2016) 

(then-Member Pizzella dissenting); or to pay bonuses in such a manner that contravenes 

Congressional appropriation (see e.g., U.S. Dep't of HHS, Nat'/ institute of Environmental 

Senate Homeland Security and Governmental Affairs Committee Page6 
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Health Sciences, 68 FLRA 1049 (2015} (then-Member Pizzella dissenting). Congress 

should consider whether it is appropriate to permit judicial review of Authority 

decisions concerning arbitral awards which impact the internal security of agencies or 

national security and awards which impact Congressional appropriations to a significant 

degree. 

14. The FLRA 's 2017 Congressional Budget Justification states that the FLRA "had to 

overcome significant obstacles in meeting its mission requirements." The Justification 

notes that in addition to increased case filings in certain agency components, the FLRA 

experienced a wave of key employee retirements and departures starting in FY 2013 and 

continuing into FY 2015. 

a. Given your experience as a counsel to the FLRA, what do you believe is driving the 

increased case filings at certain components? 

The 2017 budget justification was prepared by the former Chairperson and the former 

Executive Director in 2015. I did not personally participate in, and was not consulted about, 

the language contained in the justification. Therefore, I cannot speak to the basis for those 

assertions. However, the current case-intake reports indicate that filings in each FLRA 

component have decreased each of the past two fiscal years (except for a slight increase for 

the Office of Administrative law Judges in FY 17). In the Authority component, case filings 

decreased by 20% between FYs 15 and 16 and 8% between FYs 16 and 17. The OGC 

experienced similar declines in ULP filings (2% and 19%) and in representation petitions (4% 

and 27%}. 

b. What issues and factors do you believe most frequently give rise to unfair labor 

practice complaints? 

ULP complaints are issued when the General Counsel determines that there is merit to a 

ULP charge filed by a union or Federal agency. Charges are typically filed because the union 

or Federal agency believes that the other has failed to carry out a statutory responsibility, 

such as the duty to bargain or to provide fair representation. The early resolution of 

workplace disputes is impeded when either party ignores or is unwilling to fulfill their 

statutory responsibilities. 

However, I believe that two factors contribute to the large number of charges. First, there is 

no disincentive to avoid raising frivolous charges. Regardless of merit, union 

representatives and witnesses are on official time when preparing or pursuing a charge; 

agency officials are on duty time when preparing or responding to a charge; and attorneys 

of the OGC are paid to investigate the merits of each and every charge filed. In other words, 

every stage of the process is paid for out of the agency's appropriated funds {taxpayer 

dollars), regardless of merit or success. Second, by interpreting the term "issue" in§ 

7116(d) (see second bullet in answer to question 13 above) as permitting a party to file a 

contractual ULP charge under a negotiated grievance procedure (and ultimately to 

arbitration) and a statutory ULP charge with the OGC (and ultimately to an AU) over the 

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same facts and circumstances, parties are not required to make a choice and in practice get 

"two bites of the apple" (which taxpayers pay for ... twice) over what is for all practical 

purposes the same action. 

c. As unfair labor practices are considered at the Oftlce of General Counsel (OGC) 

level, do you believe agencies are aftorded sufficient information concerning the 

complaint? Are agencies provided a sufficient opportunity to weigh-in with OGC 

concerning a given complaint? 

The procedures established by the OGC for investigating ULP charges give OGC attorneys 

broad discretion in determining how to investigate a charge. Those procedures include 

steps to apprise the agency of the charge and to afford agency representatives an 

opportunity to respond. Although the OGC provides the charged party with a copy of the 

charge, the charge itself provides little detail. To my knowledge, however, the OGC's 

procedures do not specify at what stage, or how early in the process, the agency must be 

apprised of the facts ofthe charge. 

During the time that I served as an agency representative and oversaw all legal matters 

pertaining to the agency's labor-management program (1986- 2004), I had numerous 

opportunities to engage with OGC attorneys from each Region of the FLRA concerning ULP 

charges filed by local, consolidated local, and national union representatives. In my 

experience, the agency was frequently pressured to negotiate a settlement even where no 

investigation of, and without full knowledge of, the facts and merits of the charge. Also, it 

was not uncommon for the OGC to not provide any details of a charge, or afford an 

opportunity for the agency to respond, until after the union's version of events was 

presented in full. 

d. Are there other obstacles besides increased case loads and staft· departures that hamper 

the FLRA 's ability to tltlfil its mission? If so, please identify them and explain what 

you believe should be done to address them. 

As explained in response to section 14.a. above, I do not agree that the FLRA is currently 

experiencing an "increased case load" or an unusual or unanticipated spate of staff 

departures. In my view, the FLRA is adequately staffed at this time to fulfill its statutory 

responsibilities. But, as explained in response to question 10 above, I am convinced that, as 

leaders of the FLRA, we can do a better job at more prudently allocating our existing 

personnel resources. 

The most significant obstacle for the FLRA at this time is to reexamine our internal case 

production goals and processes to ensure that the existing backlog of cases are 

expeditiously resolved and that moving forward each Member office is held equally 

accountable for the timely issuance of case decisions. 

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15. Are there improvements to the FLRA 's internal review process that you believe can be 

improved upon to ensure fewer cases ultimately are overturned by the courts, and that all 

evidence is properly considered in a given case? 

Members should carefully heed the most recent decisions ofthe Federal Circuit Courts of 

Appeals to ensure that decisions acknowledge and comply with the warnings, guidance, and 

rulings of those Courts. 

16. In the 2016 Best Places to Work rankings complied by the Partnership for Public Service, 

and based on the data collected in the Federal Human Capital Survey, the FLRA ranked 

5th out of29 small Federal agencies that submitted data. This is a significant 

improvement over 2009 when it ranked last. The FLRA's 2016 Index Score is down five 

points compared to 2015, however. 

a. What steps will you take, if confirmed, to maintain progress made by the FLRA in 

recent years, and to further improve upon employee morale? 

2017 has been a significant year of transition for the FlRA. The Authority component and 

the OGC have not had a full complement of leaders. Thus, the decline, while noticeable and 

should not be ignored, is not unexpected. It is also worth noting that the FLRA ranked well 

above the Government-wide average in 70 of 71 questions. 

I believe it would be shortsighted for the FLRA, or any Federal agency, to presume that the 

EVS should be the only barometer of employee satisfaction, employee morale, or how well 

an agency is performing with respect to employee relations. There are many other factors 

which ought to be considered in assessing those results. For example, one might consider 

whether employees are being mentored and prepared for advancement within the agency, 

to other agencies, or even to the private sector. 

V. Relations with Congress 

17. Do you agree without reservation to comply with any request or summons to appear and 

testify before any duly constituted committee of Congress if you are confirmed? 

Yes. 

18. Do you agree without reservation to make any subordinate official or employee available 

to appear and testify before, or provide information to, any duly constituted committee of 

Congress if you are confirmed? 

Yes. 

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19. Do you agree without reservation to comply fully, completely, and promptly to any 

request for documents. communications, or any other agency material or information 

from any duly constitut~d committee of the Congress if you are confirmed? 

Yes. 

VI. Assistance 

20. Are these answers your own? Have you consulted with the FLRA or any other interested 

parties? If so. please indicate which entities. 

Yes, these answers are my own. In preparing to answer these questions, I consulted with FLRA 

staff to ensure technical accuracy. 

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U.S. Senate Committee on Homeland Security and Governmental Affairs 

Pre-Hearing Questionnaire 

For the Nomination of James Thomas Abbott to be a Member of the 

Federal Labor Relations Authority 

Minority 

I. Nomination Process and Conflicts of Interest 

I. Has the President or his stalf asked you to sign a confidentiality or non-disclosure 

agreement? 

No. 

2. Has the President of his staff asked you to pledge loyalty to the President or the 

Administration? 

No. 

3. During your tenure have you asked any federal employee or potential hire to pledge loyalty 

to the President, Administration or any other government ofticial? 

No. 

II. Background of Nominee 

4. Do you seek out dissenting views and how do you encourage constructive critical dialogue 

with subordinates? 

My philosophy on management has always been: managing least is managing best. In my experience 

and in practice, I believe that an effective leader establishes priorities and direction but affords 

employees wide latitude and discretion in carrying out their responsibilities, in particular, when 

those employees are promoted to higher grades. As Chief Counsel to a Member, I regularly meet 

with attorneys on assigned cases to thoroughly discuss facts, issues, precedent, and questions that 

have not yet been addressed by the FLRA. While it is expected that attorneys understand the 

perspective of the Member, attorneys are evaluated, in large part, on how well they have 

considered, and can articulate, all perspectives of any given issue and clearly articulate their own 

conclusions. 

a. Please give examples of times in your career when a subordinate disagreed with you 

and aggressively advocated their position. 

Expression of differing positions need not be, and never should be, aggressive. Differing 

perspectives should be thoughtfully considered, discussed, and resolved. 

Senate Homeland Security and Govemmental Affairs Committee Page 11 
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In January 2017, the responsibilities of my role as Chief Counsel expanded when the 

Member became Acting Chairman. With that change, I assumed an oversight role for 

several offices. During FY 16, one of those offices had added two attorneys within a matter 

of several months in anticipation of a program expansion that never occurred. After 

evaluating workload data for several months, it was readily apparent that the workload of 

this office was in decline and did not support (and never had supported) a staffing increase 

of 200%. The Acting Chairman agreed with my recommendation that one of the FTEs should 

be shifted to the OGC that was, and is, operating with numerous staff vacancies. The 

program manager of the impacted office strongly disagreed with this recommendation. 

Ongoing discussions, with the manager and the impacted staff attorneys, led to a 

constructive resolution whereby the attorneys themselves chose which of them would 

transfer to OGC and accommodations were made to avoid the necessity of a physical 

relocation and to permit the transferring attorney to work from a local office. 

5. Please give examples of times in your career when you disagreed with your superiors and 

aggressively advocated your position. Were you ever successful? 

I do not believe that advocacy should ever be aggressive. Advocacy should always be constructive; 

passionate perhaps, but never aggressive. The Chief Counsel supports the priorities of their Member 

and offers constructive advice, recognizing that final decisions on policy and legal matters belong to 

the Member. 

Upon assuming my role as Chief Counsel to the Chairman in 2007, the Authority had just been 

reorganized to consolidate the three Member staffs into a consolidated case-writing unit. My 

responsibilities included oversight of the consolidated unit. After observing operations for several 

months, it became apparent that the consolidation was not improving case productivity and was 

having a deleterious effect on employee morale. I believed that a return to the Member staff 

structure would be most constructive and began to advocate for that adjustment. The thenChairman was initially reluctant to reconsider the consolidation. Over time, I continued to present 

data to demonstrate how long-term case-productivity continued to suffer. This data was 

instrumental in convincing the new Chairman, in one of his first actions, to revert to individual 

Member staffs. The change was effected and proved to be instrumental in the Authority's success in 

reducing, and ultimately eliminating, its significant backlog of overage cases. 

6. Please list and describe examples of when you made politically difficult choices that you 

thought were in the best interest of the country. 

To date I have served as a career General Schedule (GS) and Senior Executive Service (SES) 

employee. As such, I am precluded from making political choices or making decisions that could be 

perceived as political. 

7. What would you consider your greatest successes as a leader? 

As a supervisor, I am most proud of my successes in mentoring employees to assess and discover 

their strengths and potential and how to utilize those strengths to achieve promotions and 

Senate Homeland Security and Governmental Affairs Committee Page 12 
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advancement in their careers. I am always proud when an employee achieves a career-enhancing 

promotion into a supervisory or leadership position which matches their career goals and strengths. 

In this respect, it is important to recognize that longevity within any organization is not necessarily 

in the best interests of the career-progression of all employees. 

While serving as the senior labor/personnel attorney for Defense Contract Management Agency, I 

led a dual-agency (DCMA and DLA) litigation taskforce to defend those agencies in a nationwide Fair 

labor Standards Act case that had been filed by Federal unions at 30 DOD activities and supply 

centers impacting over 15,000 bargaining unit employees with an assessed liability exceeding $178 

million. I formed a three-pronged litigation team -litigation strategy, discovery and evidence 

maintenance, and witness preparation comprised of chiefs of staff, general counsels and 

attorneys, HR directors and specialists, and senior subject-matter experts from both agencies. After 

developing a comprehensive, consolidated strategy supported by both agencies, I successfully 

negotiated the framework for a dual-agency, consolidated-union mediation effort with the national 

union representatives and legal teams which lasted over four months but resulted in the 

reclassification of approximately 12,000 employees to non-exempt status as part of a negotiated 

settlement for $12.7 million in FLSA back pay. 

However, my proudest leadership success dates back to 1991-92 when I worked and lived in Corpus 

Christi, Texas. I had been recently promoted to Chief Counsel at Corpus Christi Army Depot. I did 

not see myself as a community leader, but I volunteered to serve on the Mayor's Commission on 

AIDS awareness which was formed to look at ways to address the growing epidemic in south Texas. 

There were no hospice facilities in the entire area south of San Antonio that would care for AIDS 

patients. Many others within the military, locallGBT, and faith communities were reluctant to take 

a leadership role to address the crisis. I had the unique opportunity, and many invaluable 

connections, between my senior role at the army depot, my affiliation with business leaders of the 

community through my church, and my visibility in the LGBT community to bring together these 

apparent divergent interests to forge a founding board of directors, which was able to raise the seed 

monies and volunteers that were necessary to fund and open The Passage, the first AIDS hospice, in 

South Texas. This effort was not without risk, professionally or personally, but it was a challenge 

that I believed in. That it became a valuable community resource still ranks for me as one of my 

proudest personal accomplishments. 

8. What would you consider your greatest failure as a leader? What lessons did you take away 

from that experience? 

As a leader and mentor, I have been frustrated by my inability to find that surefire balance for 

knowing just how far to challenge employees to fully develop their career-development 

potential. This is particularly challenging when leading an office in a small agency such as the 

FLRA. Beyond the career-ladder progression available to staff attorneys, there are limited options 

for upward mobility for attorneys who demonstrate tremendous leadership potential. Without a 

doubt, case-productivity and corporate memory is enhanced by retaining attorneys who have 

achieved journeyman-level status. On the other hand, because of the limited upward-mobility 

available within a small agency, creative, smart, and excellent attorneys typically will best achieve 

their full potential within larger agencies, Federal unions, or in the private sector. If I succeed as a 

Senate Homeland Security and Governmental Affairs Committee Page 13 
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mentor, the agency loses a tremendous talent and resource. If I succeed as an agency leader in 

retaining talented attorneys or employees, I may not be helping the employee to achieve their full 

potentiaL The lesson that I have learned from this leadership dilemma is that ultimately these are 

decisions that must be made by the employee and that my responsibility is to create an 

environment that encourages them to head in either direction. 

9. In response to question I O(A) on your biographical questionnaire, you mentioned that you 

were a subject in a direct report making various assertions about you when a former 

employee challenged her removal from the Federal service for poor performance before the 

Merit Systems Protection Board (MSPB). The matter was entitled, Sheila Gray v. DoD, #SF0432-98-0614-I-1). You indicated that you were the proposing official after Gray failed to 

improve her performance during a performance improvement period, and Gray alleged that 

your superior, Anthony Carr, permitted you and other agency officials to "harass" her. You 

also indicated that to the best of your knowledge, the case was never adjudicated and the 

agency negotiated a nuisance lump-sum settlement in exchange for Gray's resignation and 

agreement that she would never apply for future Federal employment. 

This response does not sufficiently identify or provide details of the alleged actions taken or 

omitted by you for the proceedings. For example, it does not fully explain what actions 

and/or comments the complainant alleged that gave rise to the complaint. 

a. Please supplement your response with documents and/or information sufficient to 

identify the details for this proceeding including a description of the actions taken or 

omitted by you, or alleged to have been taken or omitted by you, while serving in 

your capacity including, but not limited to the complaint in this matter. 

For the record, I note that I was not a party to, or a witness in, this proceeding which 

occurred twenty years ago. Other than my limited recollection, which I set forth in my 

answers to the biographical questionnaire, I do not recall or have any additional 

information. 1 was not the deciding official in the removal. When the matter was appealed 

to the MSPB, I was never consulted. It is my recollection that the matter was assigned to an 

attorney(s) who worked in another subordinate command of the Defense Logistics Agency. 

I do not recall being advised of any of the specifics of, or allegations contained in, the appeal 

other than what I previously summarized in response to the question framed in the 

biographical questionnaire. 

Ill. Policy Questions 

I 0. In October 2017, FLRA summarized what they consider to be the most serious management 

and performance challenges facing the FLRA in FY 2018. These management challenges 

include: (I) Information Technology Security; and (2) Proper Handling of Records. 

a. What is your view on deciding cases based on the facts as established in the record. 

and the law (the statute and precedent)-·as opposed to independent views of right 

and wrong, how the government to work, and/or the role of unions? 

Senate Homeland Security and Governmental Affairs Committee Page 14 
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Members of the Authority should render impartial decisions after considering the entirety 

of the record, the arguments and submissions of the parties, the plain wording of the 

Statute, court decisions, and FLRA precedent. I do believe that, in making an impartial 

decision, the Authority should exercise the utmost restraint before dismissing arguments 

or issues on technicalities rather than considering those arguments on their merits. 

b. If government efficiency and effectiveness are legitimate considerations in assessing 

the merits of a dispute, what role do you believe conduct plays in an agency's 

collective bargaining, grievance procedure. and efficiency? 

The Statute is founded on the fundamental premise that collective bargaining "contributes 

to the effective conduct of public business" and "facilitates and encourages the amicable 

settlements of disputes." But the Statute's first mandate is that all of its provisions "should 

be interpreted in a manner consistent with the requirement of an effective and efficient 

Government." As the first mandate set forth in the Statute, it must be considered. 

11. Former FLRA member Pizzella, in his dissents and concurrences, frequently criticized union 

parties to a dispute for pursuing positions or remedies that he viewed as wasting government 

resources, costing too much, being ill-motivated. or at odds with common sense-- !actors not 

grounded in the law. 

a. What is your view on deciding cases based on the facts, as established in the record, 

and the law (the statute and precedent), as opposed to one's independent views of 

right and wrong, how the government ought to work, or the role of unions? 

As I note in my answer to question lO.a. above, Authority Members should render impartial 

decisions after considering the entirety of the record, the arguments and submissions of the 

parties, the plain wording of the Statute, court decisions, and FLRA precedent without 

dismissing valid arguments on technicalities. Dissents and concurrences, however, are not 

decisions of the Authority. Our nation's jurisprudence is peppered with thoughtful and 

colorful dissents and concurrences wherein a dissenting justice, judge, commissioner, or 

member observes ironies, discusses evolving matters, issues cautions, or attempts to 

redirect a debate. Justice William Douglas observed that "[ijt is the right of dissent, not the 

right or duty to conform [without which] ... the affairs of government could not be 

conducted." (See William D. Blake & Hans J. Hacker, "The Brooding Spirit of the Law": 

Supreme Court Justices Reading Dissents from the Bench, 31 Jus. Sys. J. 1, 1 (2010) (emphasis 

added)). Discourse of the nature used by Acting Chairman Pizzella, in separate opinions, 

served to educate the public and put difficult legal concepts into language that is easily 

understood by parties who are not legal professionals. In that context, I believe similar 

observations may, in certain circumstances, serve a valuable purpose. 

b. If government efficiency and effectiveness are legitimate considerations in assessing 

the merits of a dispute, do you believe that obstreperous conduct on the part of an 

Senate Homeland Security and Governmental Affairs Committee Page 15 
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agency in collective bargaining, including the grievance procedure, also undermines 

government efficiency and effectiveness? 

Civil and polite discourse should always be expected in the Federal workplace or any 

workplace for that matter. Conduct that is obstreperous or flagrant is never acceptable, and 

should never be tolerated, regardless of whether it comes from an agency head, divisionchief, supervisor, union official, or employee. 

12. Please describe what impact proposed Federal budget cuts, if implemented, will have to 

FLRA 's ability to provide training to Federal agencies and unions in understanding their 

rights and responsibilities under the Civil Service Reform Act and other relevant authorities? 

The FLRA has been fortunate insofar as its budget has remained relatively static for three years. 

Therefore, I would not anticipate any immediate impact on training priorities. The primary mission 

of the FLRA is to adjudicate disputes that are filed and to make a final determination on those 

disputes. However,§ 710S(a)(l) also challenges the FLRA to "provide leadership in establishing 

policies and guidance." In that respect, the FLRA provides annual trainings on arbitration, 

negotiability, and unfair labor practices. In the event the FLRA's budget is adjusted, I will work with 

the Chairperson, my colleague Member, the General Counsel, and other senior leaders to determine 

how to best fulfill all of our statutory responsibilities. 

13. Please describe what impact proposed budget Federal budget cuts, if implemented, will have 

to Federal agencies' ability to train managers and employees regarding their rights and 

responsibilities under the Civil Service Reform Act and other relevant authorities? 

It would not be appropriate for me to comment on other Federal agencies' priorities concerning the 

training of their managers and employees. As I noted in my answer to question 12, the FLRA has 

been fortunate insofar as its budget has remained relatively static for three years. Training has been 

allocated according to the priorities established by the FLRA leadership. For FLRA employees, a 

broad understanding of the Civil Service Reform Act, from my perspective, is an important tool in 

career development. 

14. Please describe any previous experience-in the public or private sector-with handling 

whistleblower complaints, and what steps you took to ensure those individuals did not face 

retaliation and that their claims were thoroughly investigated? 

I have not participated directly or indirectly in any whistleblower complaints. 

15. If cont1rmed, how will you ensure that whistleblower complaints are properly investigated? 

Whistleblower complaints should be investigated through appropriate channels. I will work with my 

colleagues to ensure that the FLRA continues to comply with all aspects of whistle blower laws, 

procedures, and protections. 

Security and Governmental Affairs Committee Page 16 
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IV. Accountability 

16. During your career as a Federal employee. have you ever used a personal email account or 

device to conduct ofticial government business'! 

No. 

a. If so. please describe your general practice for doing so, and what specific steps you 

have taken to ensure that Federal records created using personal devices and accounts 

were preserved. 

17. During your career, has your conduct as a Federal employee ever been subject to an 

Investigation or Audit by an Inspector General? If so, please describe. 

To the best of my recollection, an anonymous allegation was made to the Inspector General for the 

FLRA sometime in late 2010-2011 that asserted the Office of then-Member Beck was not 

complying with several new internal timekeeping, teleworking, and credit hour policies. As Chief 

Counsel, I was the approving official for time reports and telework schedules. After implementation 

of the new policies there was a great deal of confusion concerning how those new policies should be 

applied and implemented. I sought advice of the HR Director in October 2009 and followed her 

advice and interpretation. The IG's report indicated, based on new interpretations ofthose policies 

by a new HR director {hired by former-Chairman Pope), that certain approvals of credit hours, leave, 

and telework for the senior attorney were not entirely compliant with the FLRA's policies 

implemented in 2009. 

18. During your career, has your conduct as a Federal employee ever been subject to an 

investigation by the Office of Special Counsel? lf so, please describe. 

No. 

19. During your career as a federal employee, have you ever declined to implement 

recommendations made by the Office of Inspector General, the Office of Government Ethics, 

the Otiice of Special Counsel or the Government Accountability Office? If so, please 

describe. 

No. 

20. If confirmed, do you pledge to implement recommendations made by the Oftice of Inspector 

General, the Office of Government Ethics, the Office of Special Counsel and the 

Government Accountability Office? 

Yes. 

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V. Relations with Congress and the Public 

21. If confirmed, how will you make certain that you will respond in a timely manner to Member 

requests for information? 

Yes. I will respond in a timely manner to any requests for information. 

22. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from the Ranking Member of any duly constituted committee of the Congress? 

Yes. I will reply in a timely manner to any reasonable request for information. 

23. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from members of Congress? 

Yes. I will reply in a timely manner to any reasonable request for information. 

24. If confirmed, do you commit to take all reasonable steps to ensure that you and your agency 

comply with deadlines established for requested information? 

Yes. 

25. If confirmed, do you commit to protect subordinate officials or employees from reprisal or 

retaliation for any testimony, briefings or communications with members of Congress? 

Yes. 

26. If confirmed, will you ensure that your staff will fully and promptly provide inf<Jrmation and 

access to appropriate documents and officials in response to requests made by the Office of 

Inspector General, Oftice of Government Ethics, the Office of Special Counsel, the 

Government Accountability Office (GAO) and the Congressional Research Service? 

Yes. 

27. If confirmed, will you agree to work with representatives from this Committee and the GAO 

to promptly implement recommendations for improving [agency's] operations and 

effectiveness? 

Yes. 

28. If confirmed, will you direct your staff to fully and promptly respond to Freedom of 

Information Act requests submitted by the American people? 

Yes. 

Senate Homeland Security and Governmental Affairs Committee Page 18 
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29. If confirmed, will you ensure that political appointees arc not inappropriately involved in the 

review and release of Freedom of Information Act requests? 

Yes. 

VI. Assistance 

30. Are these answers your own? Have you consulted with GSA or any other interested parties? 

If so, please indicate which entities. 

Yes, these answers are my own. No, I did not consult with GSA or other interested parties, except 

FLRA staff to ensure technical accuracy. 

I, ·""-LL.cc:_..::.::. ___ :_ _ __:_c_::c ___ , state that l have read the foregoing Pre-Hearing 

~upplennetltal Questionnaires and that the information provided therein is, to 

kn•owJedil!:e. current, accurate, and complete. 

Senate Homeland Security and Government" I Affairs Committee Page 19 
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Senator Heidi Heitkamp 

Post-Hearing Questions for the Record 

Submitted to James T. Abbott 

Nominations of Hon. Ernest W. DuBestcr, Hon. Colleen D. Kiko, and James T. Abbott to 

be Members, Federal Labor Relations Authority 

Tuesday, November 7, 2017 

1. During the statT interview and in your questionnaire, you brought up concerns that the 

FLRA might be top heavy with too many supervisors, and that a goal of yours is to help 

ensure that the FLRA staff is appropriately distributed. Since you will be hearing cases 

and complaints from across the federal government and the FLRA plays a critical role in 

the ef!iciency of the government, I wanted to know if you feel, in general terms, that 

other federal agencies arc also top heavy and need to realign their staffs so that 

employees are more "appropriately distributed." 

• What do you mean by "appropriately distributed''? 

My comment about the appropriate distribution of staff referred to my answer 

to Question 10 from the Committee. That question concerned "the most 

significant challenges facing FLRA as an institution?" I identified as the most 

significant internal challenge, the FLRA must ensure that employees are 

"appropriately classified" AND THAT "staffing is appropriately distributed". I 

noted that 41.6% of the employees in the Authority component are classified as 

supervisors and 12.5% are SES, figures which are not sustainable. I believe it is 

sound management to ensure that staffing decisions are prioritized based on 

need and that the most critical positions are filled first. Hand in hand with 

establishing priorities and filling critical positions, it is a basic responsibility to 

ensure that positions are appropriately classified. 

Therefore, to me, "appropriate distribution" of staffing ensures that the most 

critical positions are filled, first with the employees and skills already on board. 

That goal may entail shifting employees from work units with insufficient 

workload to other units which are understaffed. Decisions of that nature must 

be based on the assessment of available reports and data including the 

evaluation of current workload and existing needs. 

As to classification, I am not convinced that the work of the senior positions in 

the FLRA support an SES classification, or in some cases, a GS-15 classification or 

supervisory status. In a small agency such as the FLRA, the misclassification of 

just a handful of employees may seriously impact its ability to issue timely and 

quality decisions- the primary function of the Authority component. 

As a potential Member of the FLRA, however, it would not be appropriate for me 

to comment on the staffing needs or priorities of other federal agencies. Section 

7106 of Title 5 reserves exclusively to the discretion of management (and 
174 

excludes from the coverage of our Statute) matters concerning the "number of 

employees" (7106(a)(l)), whether to "hire, assign and retain employees" 

(7106(a)(2)(A)), "the personnel by which agency operations should be 

conducted" (7106(a)(2)(B)), and "with respect to filling positions" (7106(a}(2)(C)). 

2. Your questionnaire clearly says that in your opinion "Managing least is managing best." 

Y ct, you also say a manager has to establish clear priorities and goals. 

• Can you explain how those two statements align? 

A leader must share and discuss expectations and a vision for the organization 

and what goals are important for the organization. However, employees thrive 

and are most productive when, in performing their day-to-day responsibilities, 

they are afforded wide latitude in how they perform their day-to-day 

responsibilities. This is particularly important in a small agency such as the FLRA 

whose employees, for the most part, are de greed professionals (i.e. attorneys). 

• When does a manager need to move away from "managing least" and get deeply 

into something so they can ensure a proper outcome? 

Managing least does not mean ignoring employees. It means permitting 

employees wide latitude in how they perform their day-to-day responsibilities. 

An effective leader makes herself I himself available to provide feedback and 

guidance as needed and requested. 

New employees require attention, guidance, and training. As employees 

develop, they may need higher-level guidance in order to get to the next levelas they begin to develop long-range plans, ambitions, and career plans. 

Similarly, employees who are struggling to meet either quality or timeliness 

standards may require additional attention. 

• Can you give me an example trom your days at the FLRA where "managing 

least" worked out well? 

I employ this approach within the Office of Acting Chairman Pizzella. For two 

years, the Office has operated with three staff attorneys instead of four (the 

number maintained by each of the other Member offices and has been standard 

practice for some years among Members in the Authority component). Despite 

the loss of two GS-14 attorneys- one to take a promotion to a senior position at 

the NLRB and, for another, accommodating a transfer to the FLRA Office of the 

General Counsel Regional Office in Denver (at the employee's request to address 

a family need), I chose not to continue not to fill the fourth position. Two 

attorneys were hired to fill vacancies at the GS-lllevel. One attorney came with 

substantial experience in quasi-judicial adjudication and quickly developed into 
175 

an effective staff attorney. The second hire, had limited and no recent legal 

experience, required more attention and guidance. Despite, these challenges 

and a staffing level 75% of the other two Member offices, the Office of the 

Acting Chairman has for three years reduced its average age of cases in 

inventory (a significant marker) and maintained the lowest average age of cases 

assigned to the three Member offices for the past two years. 

3. If you were to update or change the FLRA authorizing statute, what sections would you 

change and what would be the language changes? 

I stated, in response to Policy Question 13 of the Committee's questionnaire, that the 

Statute for the most part has served the federal labor-management community quite 

well. However, the federal workforce in 2017 looks very different and faces very 

different challenges than did the federal workforce in 1978 when the Statute was 

enacted. 

I have no additional examples other than those I set out in response to that question. 

4. You mentioned in your questionnaire that there was a ·'credibility and relevance gap" 

with the Federal labor-management community. In a different section. you also seemed to 

imply that there is no disincentive to avoid raising fi·ivolous charges to the FLRA. 

• Do you worry that implying that frivolous charges are a regular part of the FLRA 

case load will negatively aiTect that "credibility and relevance gap" you 

mentioned? 

No. In response to Question 10 from the Committee, I explained that I believe 

that the Authority creates a possible credibility and relevance gap when we 

dismiss too many cases on procedural technicalities rather than addressing the 

issues brought to us by the parties. However, in response to Policy Question 

14.b., I stated that I believe that the filing and investigation of frivolous charges 

contributes to the large number of charges. It is the OGC that carries the 

responsibility under the Statute to investigate every charge that is filed 

regardless of the charge's merit. Therefore, under the Statute, Authority 

Members have no control, individually or collectively, over the number of 

charges that are filed by parties. It is the sole responsibility of the OGC, not the 

Members of the Authority, to determine which charges have sufficient merit to 

warrant the issuance of a complaint. 

• Will you commit today to cotTectly and fairly consider investigate and hear any 

Unfair Labor Practices (ULP) Complaint filed by a union or Federal agency that 

comes before you? 

With respect to ULP complaints, I can only commit to fairly and impartially 

adjudicate any appeals filed by a party from a final decision of an AU. 
176 

As explained below, Members of the Authority do not investigate ULP 

complaints and may only hear appeals from ULP complaints which have been 

heard and decided by an FLRA AU. See 5 C.F.R. §§ 2423.40-2423.41. 

Only the Office of the General Counsel has jurisdiction to consider and 

investigate ULP charges. See 5 U.S.C. §§ 7118(a}(1}- (4}(8}. The decision, 

whether or not to file a ULP complaint, lies with the sole discretion of the 

General Counsel and may not be appealed to the Authority. See 5 U.S. C. 

§ 7118{a}(1); 5 C.F.R. § 2423.11{g). When the General Counsel issues a 

complaint, a hearing is held before an AU of the FLRA. The complaint is 

prosecuted by the OGC See 5 C.F.R. §§ 2423.20-2423.34. After hearing and 

the filing of briefs, the AU issues a decision. See 5 C.F.R. § 2423.34. Members of 

the Authority only have jurisdiction after the AU issues a final decision and one 

party (agency, union, or OGC) files an appeal (exceptions) to the Authority. See 5 

C.F.R. §§ 2423.40-2423.41. 

5. In your questionnaire, you said will respond in a timely manner to any reasonable request 

t(Jr information by any Member of Congress. 

• What would be an unreasonable request for information') 

Question 21 (Minority questionnaire), asked if I "will respond in a timely manner 

to Member requests for information." I stated that "I will respond to any 

Member requests for information." I commit to do so. Questions 22 and 23, 

however, asked if I would "reply to any reasonable request for information from 

the Ranking Member ... " and "reply to any reasonable request from members of 

Congress." As I stated in my responses to those questions, I commit to do so. It 

is difficult for me to imagine that any request for information from the 

Committee, the Ranking Member, or from Congress would be "unreasonable". 

• Will you commit to responding to all requests from all Members of Congress to 

the best of your ability? 

I commit to responding to all requests from all Members of Congress to the best 

of my ability. 
177 

Æ 

* -- LO(i CABIN 

REPUBLICANS 

1 (>llll Vcnn,,l\1.\\ -.-nuL.'...\\ Sul<<..' S:'iJ 

\\,:-,hin~~t' 111. l )( · _2(1(){).:; 

The Honorable Ron Johnson 

November 2, 2017 

Chairman, United States Senate Committee on Homeland Security & Governmental Affairs 

340 Dirksen Senate Office Building 

Washington, D.C. 20510 

Chairman Johnson, 

The United States Senate Committee on Homeland Security & Governmental Affairs is scheduled to 

consider the nomination of James Abbott for Member of the Federal Labor Relations Authority next 

week. Log Cabin Republicans, the country's original and largest organization of LGBT conservatives and 

straight allies, stands in support of his confirmation. 

Mr. Abbott has a demonstrated knowledge of the Federal Service Labor-Management Relations Statute, 

having served for the past 10 years as Chief Counsel to three Members - and Chairmen- of the Federal 

labor Relations Authority, encompassing the terms of both Republican and Democratic administrations. 

Over the years, he has amassed a distinguished career in public service, with tenures at the Congressional 

Office of Compliance, Defense Contract Management Agency, and other governmental entities serving 

the American people. 

As a member of Log Cabin Republicans, Mr. Abbott has maintained an unwavering commitment to LGBT 

equality and the principles of non-discrimination that are at the core of our values as a nation. 

In matters concerning both professional expertise and personal character, Mr. Abbott is unassailableand deserving of a swift confirmation by the United States Senate to the Federal Labor Relations 

Authority. 

Sincerely, 

Gregory T. Angelo 

President 

cc: United States Senate Committee on Homeland Security & Governmental Affairs members