Home Legislative Action Congressional Testimony Testimony on a proposal by the Senior Executives Association that would curb employee rights

Testimony on a proposal by the Senior Executives Association that would curb employee rights

11/09/2005

Federal Workforce and Agency Organization Subcommittee Committee on Government Reform

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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.

The Subcommittee is considering a proposal by the Senior Executives Association (SEA) for the establishment of a new Article I trial level court, akin, it says, to the Court of Federal Claims or the Tax Court, to be known as the Federal Employee Appeals Court. This Court is intended to combine “all” appeal processes for federal employees into one forum.

The Court would have the jurisdiction of (and thus replace) the Merit Systems Protection Board; the Federal Labor Relations Authority; the part of the EEOC that deals with federal employees; the part of OPM that handles adjudications, such as

classification appeals; the Office of Special Counsel; and “the arbitration process.” I understand from a communication from SEA General Counsel William Bransford that SEA’s intent is to

replace the grievance process for “EEO and adverse action matters.” Presumably the grievance-arbitration process would remain available for all other matters that can be grieved,

including contract interpretation questions and violations of law, rule and regulation that do not involve (unspecified) EEO laws. Decisions of the Court would be final and nonappealable

except in the case of employment discrimination. In that instance, appeal would be to the Federal Circuit. This court would have judges appointed and confirmed by the Senate for 15-year terms.

In addition, the SEA proposes “Special Trial Judges,”

described as akin to those of the Tax Court, who would be “appointed by the Chief Judge to assist in the resolution of assigned matters.” It indicates that these Special Trial Judges would play a more involved (but as-yet-unspecified) role in

case-handling than simply that of decision-maker.

The Court would also have “fact-finding examiners,” who appear to be different than Special Trial Judges. I assume that the examiners would conduct hearings and issue interim decisions like administrative law judges, with fact-findings that would probably be entitled to great (or even conclusive) weight by the Court.

The SEA states that one arm of the Court would conduct trials; these trials appear to be different than the hearings before the examiners. SEA refers to the “possibility” of jury trials in appropriate cases under the civil rights laws. Aside

from the indication that discrimination claims would be resolved in “trials,” the proposal does not state what type of hearing or what type of judge would be accorded to a particular claim.

The Court would also have an investigatory arm, like the General Counsel of the FLRA and the Office of Special Counsel. Functionaries in this branch could presumably issue complaints following investigation, like the General Counsel of the FLRA or the Special Counsel. The proposal does not state whether these

functionaries would also act as “prosecutors” of certain complaints such as ULPs, or whether the employee would be left to press his complaint. The SEA does indicate that the investigatory arm would allow for the “development of information which the Court could utilize in its decisions.”

This suggests that the Court staff would perform an information gathering function in contrast to district courts, which rely entirely on the record created by the parties.

NTEU has several serious concerns with this proposal which I will outline for the Subcommittee:

1. The new Court is, in effect, a super-agency, folding under one umbrella the functions of several independent agencies. There is no suggestion that the substantive statutory rights or obligations would be changed; indeed, the SEA states

that employees’ “current job protections” are retained. Thus, the SEA contemplates an enormous unwieldy conglomerate agency, like DHS, to perform all of the diverse administrative and review functions of many separate agencies. This is a

bureaucratic nightmare.

2. The Court would transform administrative functions into judicial ones. There are a number of problems with this.

-- It would be a boon for lawyers, as the process would become excessively legalistic. Many cases now are handled prose or by non-lawyer representatives. It seems likely that individuals would feel compelled to have legal representation

before the Court.

-- It is unprecedented for a court to combine investigative and prosecutorial functions with adjudicative functions. While some agencies (such as the NLRB and FLRA) have such bifurcated

functions, it is an awkward structure that requires monitoring to assure there is no abuse. Containing these functions within a court would create, at a minimum, an appearance of conflict of interest and would undermine the neutrality that a court must

have. It is unseemly for an adjudicator to rely on an

information-developing staff or material from its investigative arm. Our judicial system is premised on the concept that the parties create the record on which the decision rests; the court does not go out to find out its own version of the facts.

-- A court is 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.

-- The SEA does not discuss how a court is to handle the advisory functions of the independent agencies. For example, the Office of Special Counsel issues advisory opinions on the Hatch Act; the General Counsel of the FLRA issues guidance on

labor-relations issues; and OPM has guidance on position classification issues. It is hard to see how a court could perform those administrative functions.

3. There is no justification for replacing agencies with specialized expertise with an entity with no particular expertise. The jurisdictions of the various affected agencies cover complex subject matters, and the career staff has built up

significant expertise. This would be lost in the new Court.

For example, neither the new Court nor the Federal Circuit(which would review discrimination decisions) has any particular expertise in EEO matters. By contrast, the district courts and regional circuits have long handled these issues and have

developed familiarity with them.

4. There would be a significant loss of appeal rights

under the SEA scheme. The SEA tries to portray this as a “plus,” stating that it would negate the “necessity” of an employee having to appeal decisions of administrative agencies

to the various district courts.

In fact, the loss of this core right cuts to the heart of due process. Currently, there are normally two levels of review of decisions by the employing agency, which provide important protections for employees. For example, an agency action can be

reviewed by an arbitrator, and the arbitrator’s decision can then be reviewed (under a deferential standard) by the FLRA or the Federal Circuit, depending on the issue. Alternatively, an

agency decision in adverse action cases can be reviewed by the SEA’s repeated reference to review by the federal district courts is misleading and inaccurate. Of all the matters discussed by the SEA,

only discrimination issues may be heard by the district courts.

MSPB and then by the Federal Circuit. Decisions of the FLRA involving unfair labor practices can go to the regional circuits. There are only a few instances where there is no second level of review.

In the SEA system, this second level of scrutiny (and the protection it affords) is lost in most cases. The new Court would issue final decisions, judicially appealable only if they

involved discrimination issues. There would be no possibility of circuit court review of unfair labor practices and adverse actions. While review is sought in very few cases, the possibility of review in appropriately egregious cases is essential.

The intended impact of the SEA proposal on the

grievance-arbitration process is not perfectly clear. It appears, however, that the SEA intends to substitute the new Court for the grievance-arbitration process--at least with respect to EEO and adverse action matters. This is wholly unacceptable. The vast bulk of EEO and adverse action claims are now resolved quickly and inexpensively through the grievance-arbitration process. That process has had widespread and ever-increasing judicial approval, as a valuable (and even preferable) manner of dispute resolution. Contrary to that clear preference, the SEA would substitute a mandatory judicial

procedure.

Transformation of grievances into court cases would swamp the Court. It would also lead to a dramatic increase in the cost of pressing these claims because most, if not all, employees would seek legal representation to replace their former free union representation. Finally, it would add greatly

to the time required for resolution of the disputes, contrary to the SEA’s professed objective of expeditious case processing.

The impact of the proposal on other matters (not

related to discrimination or adverse actions) that are currently resolved through the grievance process is also unclear.

Currently, questions of contract interpretation and violations of law, rule, and regulation (including pay claims under such statutes as the Fair Labor Standards Act) can be grieved. It does not appear as though the SEA intends to include those

matters within the jurisdiction of its new Court. But, at the same time, it has eliminated the jurisdiction of the FLRA, which reviews arbitral awards on these issues. We question, therefore, whether there would be any review of arbitral awards

at all, or whether exceptions would be taken to the new Court.

Either outcome would be untenable. A lack of any review violates fundamental tenets of due process. Review on exceptions by the new Court would be a dramatic increase in its workload, and would require an expertise that its judges are unlikely to possess.

It appears as though a concern with the processing of

EEO issues is at the heart of the SEA proposal. Thus, most of its justification is based on an alleged need to reform federal sector EEO, which it claims is a long and cumbersome process.

In a November 2003 letter to Representative Jo Ann Davis, the SEA used the “infamous ‘mixed-case’ appeal” as the example of the evils to be corrected. While the SEA is correct that mixedcase

processing is complex, that type of case forms a very small part of the workload of the agencies that would be affected by its proposal. In FY 2001, for example, only 2 of the 1,373 decisions issued by the MSPB involved cases where the EEOC had

disagreed with the MSPB’s resolution and had referred the case back to the MSPB. See the MSPB Annual Report for FY 2001.

Moreover, although MSPB has the power to reaffirm its initial decision, in disagreement with the EEOC, leading in theory to resolution by a Special Panel (see 5 U.S.C. 7702(c), (d)), in reality the Special Panel convenes only rarely. A 1995 GAO

report states that the Special Panel had convened only three times in 15 years.

In short, the SEA is relying on one narrow issue to justify breathtakingly expansive revisions to federal sector appeal rights on a host of issues. It would be far more appropriate to concentrate on exploring proposals to streamline the federal

sector EEO process without also affecting unfair labor practice processing, the grievance-arbitration process, the investigation of whistle-blowing, and the resolution of adverse actions not related to EEO issues.

Mr. Chairman, NTEU appreciates the 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.