Establishing A Commission To Recommend Improvements For The Federal Employees Appeals Process

7/11/2006

House Federal Workforce and Agency Organization Subcommittee

Chairman Porter, Ranking Member Danny Davis and members of the House Government Reform Subcommittee on the Federal Workforce and Agency Operation, my name is Colleen M. Kelley and I am National President of the National Treasury Employees Union (NTEU). I appreciate the opportunity to present this statement on behalf of NTEU on the proposal to establish a commission to recommend improvements in the federal employees appeals processes.

The National Treasury Employees Union represents some 150,000 workers in 30 government agencies, making it the largest independent non-postal federal labor union. NTEU has worked for over 65 years to improve and defend federal employee protections, rights, and benefits. We take very seriously the proper adjudication of the statutory and contractual rights of our members and any acts of discrimination or unfair treatment towards them.

Last year, the Subcommittee considered a proposal by the Senior Executives Association (SEA) for the establishment of a new Article I trial level court, akin to the Court of Federal Claims or the Tax Court, to be known as the Federal Employee Appeals Court. This Court was intended to combine “all” appeal processes for federal employees into one forum. NTEU strongly objected to this proposal. We have provided a detailed explanation of the reasons for our objections to the Subcommittee, but let me briefly review our concerns.

The proposed Court would be, in effect, a super-agency, folding under one umbrella the functions of several independent agencies. Thus, we would have an enormous unwieldy conglomerate agency, like DHS, to perform all of the diverse administrative and review functions of many separate agencies. This would be a bureaucratic nightmare. The Court would transform administrative functions into judicial ones, creating a process that would become excessively legalistic. Cases that now are handled pro se or by non-lawyer representatives would instead be more likely handled before the Court by lawyers.

Such a court would be particularly ill-suited to handle thousands of complaints arising throughout the country. While the MSPB and the FLRA, for example, have regional offices to advise employees, and their adjudicators conduct hearings close to the workplace, this Court is likely to be based in Washington. Centralization would work a hardship on employees. They and their witnesses would have to travel to be heard, representing a considerable expense. In addition, they would be far removed from those able to provide guidance and investigation of their complaints.

NTEU agrees that complaints should be resolved quickly without compromising justice and fairness. We feel, however, that the proposed Federal Employee Appeals Court is misguided. NTEU also believes that the proposal for a commission to recommend legislative or structural changes to the appeals process misses the real issue.

The proposed legislation asks that the Commission review consolidation of operations or agencies. We do not believe that replacing or consolidating agencies with specialized expertise with a new entity with no particular expertise will improve the appeals processes. The jurisdictions of the various affected agencies cover complex subject matters, and the career staff has built up significant expertise.

The proposed legislation also charges the Commission with two other duties – to look at organizational, procedural and structural changes and to look for ways to reduce the time for appeals. It appears as though a concern with the processing of equal employment opportunity issues is the main issue driving the desire for change in the complaint and appeal process. NTEU has a very strong and firm response to this. The answer is not study commissions or legal or structural changes. The answer is adequate funding and staffing at the Equal Employment Opportunity Commission (EEOC) and other agencies so that they have the resources and personnel to do their job in a fair and timely process. Mr. Chairman, as we sit here today, the administration is making moves to cut the budget of the EEOC by $4 million. The truth is that the EEOC is understaffed. It has been under a hiring freeze since 2001 and the agency projects that its backlog of cases will continue to grow again next year as it did from the past year. It is totally understandable that neither employees nor managers are pleased when cases linger on for ever increasing lengths of time. Congress should not be waiting for a study commission to make a report when an obvious and large part of the answer is staring it in the face, which Congress has the authority to correct this year. The EEOC budget should not be cut by $4 million but should be increased so that additional staff may be hired. EEOC funding should be at such a level that its backlog of cases not only does not increase, but that is actually reduced. Mr. Chairman, I feel that this study commission is being charged with fixing a car when the only problem is that the gas tank needs to be filled. NTEU’s position is that these agencies should first be given the resources they need to do their job; only then, if problems still exist, should we explore structural, legislative and procedural changes.

In addition to the inadequate funding at EEOC, let me mention problems of a different nature at the Office of Special Counsel, another agency charged with protecting employee rights. Here, in NTEU’s judgment, the issue is not resources nor structural problems but a lack of commitment by the Office’s leadership to vigorously enforce law and regulation. Because of the Special Counsel’s actions against its own employees and its restrictive view of federal employees’ rights, we have no confidence in the Special Counsel’s leadership. We believe federal employees should have a Special Counsel which they can have trust in to fairly and vigorously defend their rights.

Finally, Mr. Chairman, establishing a commission to recommend changes in the federal employees appeals processes with paid staff and other expenses is an unnecessary waste of taxpayer money. NTEU and other interested parties have given their views on the SEA proposal and I’m sure would be happy to work with the Committee on other alternatives that improve the process without diminishing any parties’ rights. We particularly stand ready to work with the Committee to win adequate funding for agencies such as the EEOC.

Mr. Chairman, NTEU appreciates your consideration of our viewpoint and we are happy to assist you and the other members of the Subcommittee regarding this matter in any way we can. Thank you.