[Senate Hearing 110-983]
[From the U.S. Government Publishing Office]
S. Hrg. 110-983
NOMINATIONS OF HON. CAROL W. POPE AND THOMAS M. BECK
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON THE
NOMINATIONS OF HON. CAROL W. POPE AND THOMAS M. BECK TO BE MEMBERS OF
THE FEDERAL LABOR RELATIONS AUTHORITY
__________
SEPTEMBER 11, 2008
____________
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Kristine V. Lam, Professional Staff Member
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Jennifer L. Tarr, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
Patricia R. Hogan, Publications Clerk and GPO Detailee
Laura W. Kilbride, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Akaka................................................ 1
WITNESSES
Thursday, September 11, 2008
Hon. Eleanor Holmes Norton, Delegate of the District of Columbia,
U.S. House of Represenatives................................... 2
Hon. Carol W. Pope to be a Member of the Federal Labor Relations
Authority:
Testimony.................................................... 4
Biographical and professional information.................... 17
Responses to pre-hearing questions........................... 31
Letter from U.S. Office of Government Ethics................. 42
Thomas M. Beck to be a Member of the Federal Labor Relations
Authority:
Testimony.................................................... 5
Biographical and professional information.................... 43
Responses to pre-hearing questions........................... 51
Letter from U.S. Office of Government Ethics................. 59
NOMINATIONS OF HON. CAROL W. POPE AND THOMAS M. BECK
----------
THURSDAY, SEPTEMBER 11, 2008
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:35 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Daniel K.
Akaka, presiding.
Present: Senator Akaka.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. This hearing will come to order.
Today the Committee on Homeland Security and Governmental
Affairs meets to consider the nominations of Carol Waller Pope
and Thomas Beck to be members of the Federal Labor Relations
Authority (FLRA). Both Ms. Pope and Mr. Beck have had long
careers dealing with labor-management relations--Ms. Pope
working for the Federal Government at the FLRA and Mr. Beck
working in the private sector at Jones Day. I want to welcome
our nominees along with their families and friends to the
Committee today.
Congress acted to allow Federal workers the right to
bargain collectively because labor organizations and collective
bargaining are in the public interest. The right of employees
to unionize and bargain contributes to the effective conduct of
public business and facilitates the amicable settlement of
workplace disputes.
Because the FLRA is responsible for resolving disputes
between labor unions and the government, the positions to which
Ms. Pope and Mr. Beck have been nominated are among the most
important to Federal employees and the ability of the Federal
agencies to meet their missions. A well-managed organization
understands the need to invest in its workforce. To be an
employer of choice and promote high employee morale, employees
must have input in management decisions.
When managers vet proposed changes to working conditions
with affected employees, they better understand their practical
impact on an employee's ability to do his or her job, and on
workforce morale as well.
When managers restrict the ability of the employees to
bring their concerns to the table and try to eliminate
collective bargaining, they undermine their agencies' missions,
lower employee morale, and make the organization an employer of
last resort.
The FLRA is at a critical juncture given the shifting
nature of the Federal labor relations system. As such, the
positions to which Ms. Pope and Mr. Beck have been nominated
will face new challenges and take on renewed importance.
Over the past 8 years, we have seen proposed changes to
Federal labor law at the Departments of Homeland Security and
Defense which would have significantly impacted the FLRA and
Federal workers. If implemented, I believe that employees at
those agencies will not be able to have their cases decided by
an impartial adjudicator. In addition, the Administration
proposed additional changes to the Federal labor-management
system government-wide through the Working for America Act in
2005. These changes would have further eroded workers' rights.
I am pleased that the Administration's proposals have not been
enacted. However, these proposals sent the wrong message to
Federal employees. It has diminished labor-management relations
in the Federal Government and employee morale.
In my opinion, workplace changes are now viewed with more
suspicion. Workplace disputes have taken on a more adversarial
nature. The reinstatement of labor-management partnerships is
essential, and I hope the next Administration will work with
the FLRA to improve labor relations and alternative means to
resolving disputes.
The challenges facing the Federal labor-management system
have taken a toll on the FLRA. Like other Federal agencies,
FLRA is facing a human capital crisis. The prospect of
legislative changes significantly altering the functions and
workload of the agency have left the FLRA with a high number of
vacancies and low employee morale. In fact, the FLRA placed
last among small agencies in the Partnership for Public Service
2007 Best Places to Work rankings. The new leadership at the
FLRA must take action to address the agency's human capital
crisis and make the FLRA an employer of choice.
I look forward to discussing these issues with the nominees
to get their views on how to improve operations at FLRA and the
state of labor-management relations in the Federal Government.
Ms. Pope and Mr. Beck, again, I welcome you and
congratulate each of you on your nomination.
Now I would like to recognize Delegate Eleanor Holmes
Norton. We are happy to have you with us today. Welcome to the
Committee. I know you have a tight schedule, so please proceed
with your introduction of Ms. Pope.
TESTIMONY OF HON. ELEANOR HOLMES NORTON, DELEGATE OF THE
DISTRICT OF COLUMBIA, U.S. HOUSE OF REPRESENTATIVES
Ms. Norton. Well, thank you very much, Mr. Chairman, and I
know about your schedule, and I am very appreciative that you
have made time to get to this business before recess.
I am here to introduce Carol Pope, a Washingtonian, and a
present member of the Federal Labor Relations Authority. You
have spoken, I think, very well about the importance of this
agency to hundreds of thousands of Federal employees and to the
Federal Government itself, so this is a nomination of some
importance to the country.
Ms. Pope has been nominated by two Presidents--President
Clinton and President Bush. You are familiar with her extensive
qualifications. Suffice it for me to say that she is an
attorney, admitted to the U.S. Supreme Court, and Federal
Courts of Appeals. She began her career in the Office of the
Solicitor, Department of Labor, in 1979, moving almost
immediately in 1980 to the FLRA, and has spent most of her
career there, indeed, including as Assistant General Counsel.
Mr. Chairman, it is always gratifying to see a career
Federal employee rise through the ranks to become a member of
the commission or of the governing authority itself. And that
is what the record of Carol Pope has allowed her to do in the
opinion of the two Presidents who have nominated her, and now
she is being renominated for another term. I am very pleased
and very proud of her and very pleased to offer her to you as
an exceptionally well qualified candidate to be a member of the
FLRA.
Thank you very much, Mr. Chairman.
Senator Akaka. Well, thank you very much, Delegate Norton.
I really appreciate your remarks and your support of Ms. Pope.
Ms. Norton. Thank you.
Senator Akaka. Thank you.
Ms. Pope and Mr. Beck have filed responses to a
biographical and financial questionnaire, answered pre-hearing
questions submitted by the Committee, and had their financial
statements reviewed by the Office of Government Ethics. Without
objection, this information will be made part of the hearing
record, with the exception of the financial data, which are on
file and available for public inspection in the Committee
offices.
Our Committee rules require that all witnesses at
nomination hearings give their testimony under oath. Therefore,
Ms. Pope and Mr. Beck, I ask you to both please stand and raise
your right hand. Do you solemnly swear that the information you
are about to submit to the Committee is the truth, the whole
truth, and nothing but the truth, so help you, God?
Ms. Pope. I do.
Mr. Beck. I do.
Senator Akaka. Thank you very much. Let it be noted in the
record that the witnesses answered in the affirmative.
Ms. Pope and Mr. Beck, I know that your families and
friends are here at this time, and I am glad I had the
opportunity to say hello to them. I want to give you the
opportunity to present them formally to the Committee. So, Ms.
Pope, will you please introduce your family to the Committee?
Ms. Pope. Thank you, Mr. Chairman. I would like to
introduce my brother-in-law, Wallace White; my sister, Lynda
White, from Philadelphia; my niece, Evin Jethroe; and friend,
Fred Grigsby.
Thank you.
Senator Akaka. Thank you. Thank you very much.
Mr. Beck, will you please introduce your family?
Mr. Beck. Chairman Akaka, my wife, Amanda Beck, is here
with us today. And her parents, Colonel and Mrs. Bruce J. Host,
are here from Tallahassee, Florida, and I want to thank them
for coming here to be with me today.
Senator Akaka. Thank you. Thank you very much and welcome
to all of you. We are happy to have you here today. I can see
that both of you have a lot of strong support, not only from
family but friends as well here.
So, Ms. Pope, will you please proceed with your statement?
TESTIMONY OF HON. CAROL W. POPE TO BE A MEMBER, FEDERAL LABOR
RELATIONS AUTHORITY
Ms. Pope. Thank you, Mr. Chairman.
Chairman Akaka, I am honored to appear before you today as
the President's nominee to be a member of the Federal Labor
Relations Authority. I would like to thank Congresswoman Norton
for her support and her kind words on my behalf. Finally, I
would like to thank the staff members of the Committee for
their work and for their assistance in scheduling this hearing.
I appeared before this Committee over 8 years ago when I
was first nominated and confirmed as a member of the Federal
Labor Relations Authority. At my swearing-in, the youngest
member of my family--my niece, Evin Jethroe--who was 10 years
old at the time, held our family Bible. Today I am proud to say
that Evin is here in Washington and here at this hearing
because she is a freshman at George Washington University. I
thank Evin and all of my family and extended family and friends
for their support.
I also want to acknowledge my colleagues and friends from
the Federal Labor Relations Authority who are here. There are
those in the hearing room today and many more who are watching
this proceeding through the live video feed. I commend all of
the FLRA employees for their interest in this process and for
their commitment to the mission of the agency.
In the 8 years that I have served as a member, the Federal
sector labor relations landscape has changed. I note with
sadness that today is the anniversary of one of the most
horrific acts of domestic terrorism experienced in my lifetime.
Federal employees, both personally and professionally, have,
like the entire country, suffered from the impact of those
tragic acts. In addition, during the last 8 years, the
Department of Homeland Security was created, which consolidated
functions from 22 separate agencies with separate bargaining
units and collective bargaining agreements.
Legal issues regarding proposed personnel and labor
relations systems at DHS as well as the Department of Defense
dominated labor-management discussions at all levels over these
years. Also during this time, numerous other pay and personnel
reforms were contemplated, and some were instituted. Agency
reorganizations, employee turnover due to the retirement
bubble, and pay and personnel changes have tested and
oftentimes strained the relationships between labor and
management.
I pledged at my first hearing before this Committee and I
pledge now, if I am confirmed, to ensure that the FLRA fulfills
its important mission by adjudicating disputes fairly,
impartially, and expeditiously, and by producing quality
decisions that enhance the stability of labor-management
relations in the Federal Government.
I also pledge my support to work with my colleagues,
including presidential appointees and others, to assist the
FLRA in discharging its statutory leadership role in
establishing labor-management policies and guidance throughout
the Federal sector. I greatly appreciate the opportunity to
appear with Thomas Beck and look forward to welcoming him as
chairman to the FLRA, which has been my professional home for
the last 28 years.
Thank you very much. I am happy to answer any questions you
might have.
Senator Akaka. Thank you very much for your statement, Ms.
Pope.
Now, Mr. Beck, your statement, please.
TESTIMONY OF THOMAS M. BECK TO BE A MEMBER, FEDERAL LABOR
RELATIONS AUTHORITY
Mr. Beck. Chairman Akaka, thank you.
First of all, I want to say it is an honor to be here
before you today, and I want to thank you for holding this
hearing and permitting Ms. Pope and myself to appear here, and
for your warm reception today as well. Thank you very much for
that.
As you know, the FLRA has lacked a quorum since Chairman
Cabaniss stepped down roughly 2 months ago, and I know that
your prompt efforts since then to consider my nomination and
that of Ms. Pope are appreciated by the people at the agency
and by the parties that the agency serves. So thank you again
for moving to hold this hearing.
I also want to join Ms. Pope in thanking the Committee
staff who did help us work through this process quite quickly,
and they were very kind and generous with their time and
helpful to me, to whom this process is new, in understanding
the process. And I also want to thank the folks from the FLRA
who are interested and are here with us today to observe what
we talk about today.
Senator Akaka, a working and productive FLRA is integral to
the proper functioning of our Federal agencies. The FLRA's
ultimate mission is to foster constructive labor relations in
the Federal sector. It does so when it resolves impartially and
expeditiously the disputes that are presented to it by Federal
agencies and by the labor organizations that represent the
employees of those agencies.
Currently, the FLRA has a backlog of close to 400 cases. If
I am confirmed and designated chairman, my most pressing
priority will be to address and to reduce this backlog of cases
to the greatest extent possible, given, of course, that it
seems, for the near term at least, the Authority will have two
members rather than the full complement of three, most likely.
And I suppose sometimes Ms. Pope and I will agree and sometimes
we will disagree when it comes to the disposition of particular
cases. But I believe that we will both work to try to do
something about that backlog, which is larger than it should
be.
If I am confirmed and designated chairman, another priority
will be to assess the human capital needs at the FLRA. You
referred to this, Senator Akaka, in your own statement a few
moments ago, and I know that this is a pressing issue at the
agency. And I understand it is a pressing issue for the parties
that the agency serves as well.
The agency staff overall is substantially reduced from
where it was 5 years ago, and in particular, the case-writing
staff, which is so directly involved in the agency's core
function of processing cases, as I understand it, is just
slightly over half of what it was 5 years ago. Now, these very
significant reductions in personnel do not correlate, so far as
I know, to any concomitant reduction in the agency's statutory
mission or its responsibilities. And so this raises the
question, at least, as to whether the FLRA is adequately
staffed. And as I sit here today, I do not know the magic
number in terms of what the proper number of employees at the
agency might be, but it is certainly a matter that I think
warrants the immediate and serious attention of the FLRA's next
chairman.
And I also just want to note with Ms. Pope here that I
really very much look forward to working with her in a
collaborative way to address these and the other challenges
that face this agency. Ms. Pope generously reached out to me
roughly a year ago when I was nominated and congratulated me on
my nomination, and since then we have had several friendly, and
I think productive, discussions. And what I have learned about
Ms. Pope is that she is not just a bright and gracious
individual, but she is also someone who really knows the ins
and outs of this particular agency because she has served there
in many positions over the years. And so if I am confirmed and
am permitted to take on the role of chairman, I know that she
will be an invaluable resource that I will look to to help me
get acquainted with and understand the inner workings of this
agency.
With that, Mr. Chairman, I want to thank you again for
holding the hearing today, and I will be pleased to answer any
questions you may have.
Senator Akaka. Well, thank you very much for your
statement, and I look forward to you working together.
I will begin with the standard questions this Committee
asks of all nominees, and so I ask for your responses to these
questions.
Is there anything you are aware of in your background that
might present a conflict of interest with the duties of the
office to which you have been nominated?
Ms. Pope. No.
Mr. Beck. No.
Senator Akaka. Do you know of anything, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Ms. Pope. No.
Mr. Beck. No.
Senator Akaka. Do you agree without reservation to respond
to any reasonable summons to appear and testify before any duly
constituted Committee of Congress if you are confirmed?
Ms. Pope. Yes, Mr. Chairman.
Mr. Beck. Yes.
Senator Akaka. Thank you very much for your responses.
My first policy question is to both of you. As I mentioned
in my opening statement, I believe that the state of labor
relations in the Federal Government is at an all-time low.
Several years ago, President Clinton established labor-
management partnerships throughout the Federal Government to
improve cooperation between labor and management. In my view,
these partnerships were a great success, but shortly after
taking office, President Bush abolished them. Last year, I
introduced legislation to reinstate the partnerships.
What are your views on the use of labor-management
partnerships? And what role do you believe the FLRA should play
in improving labor-management relations? Ms. Pope.
Ms. Pope. Thank you. As you stated previously, the FLRA had
a leadership role in facilitating and assisting parties in
developing productive labor-management partnerships after the
Executive Order was enacted. We enjoyed a lot of success in
collaboration with agency leadership and union leadership to
facilitate the institution of partnerships as well as to
facilitate the ongoing management of those partnerships. It
certainly benefited the FLRA in that a lot of issues were
resolved before cases were filed. In instances where the
parties had filed numerous charges, we were able to employ the
partnership principles to resolve some of those cases amicably
without the need for additional resources of the FLRA or time
away from the workplace for the employees engaged in those
labor-management disputes.
So, in my view, there has been a lot of success in the
past. Anecdotally, I understand that some labor-management
partnerships continue today voluntarily in the absence of an
Executive Order, and I certainly would welcome any legislation
that would require agencies to take another look and engage in
labor-management partnerships.
Senator Akaka. Thank you. Mr. Beck.
Mr. Beck. Senator Akaka, I know that President Bush
rescinded President Clinton's Executive Order. I do not think,
however, that really affirmatively prohibits informal labor-
management partnerships or discussions that may, and I think
sometimes do, take place in agencies. And as a general
proposition, I think more talking is probably good between
parties who potentially could come into dispute with one
another. I think it is better to talk and try not to let that
dispute reach a head, if at all possible. And to the extent the
management of agencies wants to talk informally and feels that
it is a good idea to talk informally with labor organizations
and that the labor organizations feel the same way, I think
talking is a good thing.
And if they can avoid even having a dispute that they bring
to the Federal Labor Relations Authority, I think that is great
for all concerned. Then if they have a dispute that they cannot
resolve before they bring it to the Authority, there are
different aspects and avenues for alternative dispute
resolution that the Authority can make available. Perhaps if
and when I am there, I suppose I might make an assessment as to
whether we ought to have a little more of that. Perhaps we
should. But with my experience in the private sector, more
talking between the parties is, generally speaking, a good
thing. And even if they do develop a dispute, sometimes it
makes a lot of sense to still talk informally and see if the
dispute can be resolved, either through bilateral negotiations
or through mediated settlement discussions, before full-blown
litigation ensues.
As a general proposition, I am in favor of talking.
Senator Akaka. Well, as I mentioned I have introduced
legislation, S. 2197, to reinstate labor-management
partnerships in the Federal Government. And I believe that bill
would certainly help what you just mentioned in providing a
process for talking to continue on these problems.
Mr. Beck, you have had extensive experience in the private
sector representing corporations in disputes with labor unions.
Will you please explain how you will make the shift from
representing management in such disputes to being a neutral
adjudicator?
Mr. Beck. Yes, Senator. Not an unexpected question given my
background. It is true that I have spent the greater bulk of my
legal career advocating for employers in the private sector
when they have had disputes with their employees or with labor
unions, and sometimes with the government as well. I was hired
to do a job as an advocate, and I did it, hopefully fairly well
most of the time, and had a little bit of success at that. But
I understand full well that the job that I am nominated for is
a different job, and it is a job where I am not being paid to
be an advocate. I am being paid to try to be, as best I can, an
impartial decider of cases in my role as a member of the
Authority looking at cases that are presented to the Authority.
I am not ideological on this, Senator. My law firm made a
policy decision many years ago before I arrived that we would
represent management, and as far as I know, we have never
represented labor unions. I certainly have not personally. But
it is also true that I have never represented Federal agencies
either, and so as I look at the job of member and chairman of
the Federal Labor Relations Authority--I have never represented
a labor union as an advocate. I have never represented a
Federal agency as an advocate. And I suppose one might
analogize in some ways the management of Federal agencies to
the management of private sector employers that I have
represented. But to me, Senator, a Federal agency is really a
different animal from a private sector employer. I don't equate
the two or really view them philosophically as equivalents.
And so this really will be a new milieu for me, getting
into the Federal sector with Federal agencies and Federal
sector labor unions. And so I am really quite confident I will
be able to be impartial and look at these cases that are
presented to me.
One more comment about my work in the private sector. I
must say, although I have been doing it for several years, I am
far from coming to a conclusion that all management is made up
of good guys or all unions and union members are good guys, or
the reverse. I have seen management be good guys and bad guys
sometimes in different circumstances, and I have seen labor
unions be good guys and, frankly, bad guys sometimes, too. And
so I just do not really have a view that one is always right or
one is always wrong.
Senator Akaka. Mr. Beck, no organization can succeed
without investing in its human capital. As you know, the FLRA
placed last--and I mentioned that in my opening statement--in
the most recent Best Places to Work rankings by the Partnership
for Public Service, and it has a high number of vacancies.
Since President Bush has indicated that he would designate you
as chairman of the FLRA if you are confirmed, please explain
your strategy for addressing the FLRA's human capital
challenges and improving employee morale.
Mr. Beck. Well, Senator, I do know that is one of the most
important challenges that is facing this agency, and I think I
noted in my opening remarks that there has been a substantial
reduction in the personnel at this agency over the last few
years, and you noted that as well. And I am very well aware of
the study of small agencies in which the Authority, the FLRA,
ranked dead last. It will absolutely be my mission to do
something about that.
Obviously, I am not there yet, and so I do not think I can
lay out in great detail exactly how I would do it step by step,
but I must tell you that what I want to do, if and when I
arrive at the Authority, is to go on a listening tour, if you
will, and that is kind of a trite way to put it, perhaps, but I
really want to talk to Ms. Pope in great detail about what she
thinks is going on at this agency and what needs to be done in
terms of human capital and other challenges. And I want to talk
to the staff at all levels at the FLRA and find out what they
think is going right and what they think is going wrong right
now and what can we do about that.
In my experience, one way to improve employee morale and to
get employees and staff on your side is to just really
communicate in an open and fair way with them and let them know
that you care about what they have to say and that you respect
what they have to say. And I don't suppose I would always agree
with what everyone on the staff says. I am sure there would be
a great many different views and opinions about priorities and
about what is working and what is not. But I intend to collect
as much information as I can from the people who have been
there much longer than I have been--because I have not been
there at all, frankly--and try to find out what is going on and
what we can do to improve morale. If morale is so poor, why is
it so poor? And what is within our power to do to improve that?
And I do not really know the answer in detail right now as I
sit here, but I do know I am going to figure it out when I get
over there. And I am going to look to the people, the person
right next to me and the other people who are there, who know
about what is going on in that agency and let them know I want
to know what they think. We will do whatever we can within our
power and within our budget to try to increase morale and make
this, as you said in your opening remarks, an employer of
choice, an employer that people want to go to, rather than an
employer that people realize is last on the bottom of the
employee morale list and so maybe they are not really eager to
work there.
Senator Akaka. Thank you.
Ms. Pope, you have been working at the FLRA since 1980.
What do you believe are the biggest human capital challenges
facing the FLRA? And what steps do you believe need to be taken
to address these challenges and improve employee morale?
Ms. Pope. The biggest challenge in my view is the human
capital issue. I believe what has happened over the years is
the extensive vacancies and extended vacancies over a number of
years at all levels have impacted morale. There is a real
crisis, if you will, with regard to whether we have the
appropriate level of staff and in what positions to get our job
done, to accomplish our mission effectively and efficiently.
What I have done over the years is to work with my staff to
try to produce timely, quality decisions to meet the
performance goals of the agency. I look forward to working with
Mr. Beck, should he become chairman and we are both confirmed,
to engage collaboratively to address the issues. One of the
things that the survey talked about in terms of improving
morale is the need for employee engagement. So I am very happy
to hear his views with regard to how to address morale because
I do believe and share the view that getting the stakeholders
into the room and hearing their views and sharing information
regarding budget constraints--getting employee engagement,
developing strategic plans and performance goals, and creating
the understanding that management is interested in giving them
the tools to accomplish those goals--will go a long way in
terms of improving employee morale at the agency and employee
satisfaction.
I have been at the agency for 28 years, and it is
disheartening to know that we rank last. It is disheartening to
know that we are possibly an agency that cannot retain or
recruit the best and the brightest to come to work with us. But
I do know the FLRA has an important mission and one that is
more critical as we move forward with potential pay reform and
personnel changes.
So I look forward to working with Mr. Beck to address the
issues and the challenges facing the agency.
Senator Akaka. Thank you for that.
Other than issues relating to human capital, what do each
of you believe are the biggest challenges facing the FLRA? And
what steps do you plan to take to address them?
Ms. Pope. Mr. Beck referred to the issue that we have a
significant backlog of cases in the agency, so the biggest
challenge, in my view, is the fact that currently, because of
staffing issues and other issues, we are not meeting our own
performance goals. We are not providing our customers timely,
quality resolution of their disputes. So I would like to work
together with the chairman to address those challenges, to
develop strategies to bring the case writers and the senior
management in the room to talk about how best to develop and
look at our work processes, to see where we can improve our
productivity and address the quality and timeliness of our
decisions.
Senator Akaka. Thank you. Mr. Beck.
Mr. Beck. Senator, I did mention that backlog, and I think
it is something that we need to take a very immediate and very
serious look at. Let me put it this way: One of the questions I
want to consider, if I am confirmed and go to the agency, is
whether we can do a little more at the agency to help the
development of the kind of disputes that they are bringing to
us. One way to permit us to work on the existing backlog is to
see if we can reduce the number of cases that are being filed.
I don't know, but within the parameters of the statute, we may
be able to do a little bit more to try to help agencies and
their labor organizations to get along a little bit better, to
play a little bit more nicely, to come to agreement on more
issues that otherwise might become cases that come to the
Authority for decision.
And as I understand it, the agency has several methods of
alternative dispute resolution that can be brought to bear once
a case is filed. I wonder if the statute permits us to reach
out just a little bit further, to the point even before cases
are filed. I honestly don't know the answer to that, perhaps
the answer is no. But in a sense, the Authority seems to me
under the statute to have some residual authority that might go
beyond simply deciding the cases that are presented to it, and
we may be able to provide some training or some education and
information to managers, employees, and labor organizations
that are out there in the Federal sector so that we can maybe
avoid having some of the disputes arise in the first place.
Senator Akaka. Thank you. Over the past 8 years, there have
been numerous proposals to change the structure of the FLRA and
its role and responsibilities. Both the Departments of Defense
and Homeland Security proposed having internal agency panels
decide labor cases instead of the FLRA. There was also a
proposal by the Senior Executives Association to merge the
FLRA, the Equal Employment Opportunity Commission (EEOC), and
the Merit Systems Protection Board (MSPB) into a single Federal
employee appeals agency.
What are your views on these proposals and do you believe
that there are any structural changes that need to be made to
the FLRA or the process for adjudicating unfair labor
practices? Ms. Pope.
Ms. Pope. In my experience, it is the FLRA that is uniquely
poised and trained to be the neutral arbiter of Federal
workplace disputes. So I was concerned, obviously, about the
legislation you mentioned that would have narrowed our
jurisdiction in a lot of cases and eliminated our jurisdiction
in many others.
I continue to believe that it is the FLRA in its current
structure that should continue to have the jurisdiction over
Federal workplace disputes. I believe with budget constraints--
certainly internally the FLRA has an ongoing obligation to look
to ensure that its structure is the most efficient, the most
productive. Internally we may need to assess whether we have
the right people in the right jobs, in the right positions, and
the right work processes to get the job done effectively. There
should be an ongoing strategic assessment which includes
employees and their representatives and career and presidential
management at all levels.
Senator Akaka. Well, what about the process for
adjudicating unfair labor practices?
Ms. Pope. I have not taken a personal position on the
merger of the agencies, but I have been a part of the agency in
the past when that has been presented as an issue to the FLRA
by Congress. We worked with those other agencies to address and
identify the areas where we have separate and distinct
jurisdiction and separate and distinct expertise to address
those issues. So, in my view, the work process that is
currently a part of our regulatory structure is sufficient.
Now, one of the things we have done over the years is to
look to see where our regulations could be revised to better
serve the parties. And we have made changes, introducing formal
Alternative Dispute Resolution (ADR) principles and policies,
as well as providing opportunities for training, education, and
facilitation in the area of representation cases and petitions
before they are filed.
So, our own regulatory process could be reviewed and should
be reviewed to address how charges are filed and where they are
filed. And moving further to electronic filing and managing
technology to more effectively handle our caseload and more
effectively enable the parties to know how to file charges and
what their rights are is something that I would endorse for
internal review.
Senator Akaka. Mr. Beck.
Mr. Beck. Senator, the proposals and the possibilities that
you referred to--of course it is not in vogue to use this
phrase, but I will anyway--would really be above my pay grade.
If I become a member and chairman of the Authority, it will not
be up to me to say whether such a merger should take place. Of
course, that will be between the Congress and the next
President.
As I look at that proposal that you mentioned of really
merging the agencies and creating sort of a monolithic agency
to deal with Federal sector employment issues, in my own mind I
immediately think about the situation I am very familiar with
in the private sector. And as you know, the FLRA is modeled on
the National Labor Relations Board (NLRB), and in most ways
structurally it functions like the National Labor Relations
Board. And the EEOC also exists to be available to private
sector employers and employees, and it deals with their
disputes as well.
And so we really have an analogous system of divided
responsibilities between the agencies in the private sector
that I am very familiar with, and I am not aware of anyone who
is seriously suggesting that the NLRB and the EEOC should be
merged to deal with private sector employment issues. And based
on my experience, it would not be a good idea. And so that is
really the best viewpoint I think I could bring to bear my own
self on the suggestion of merging the agencies in terms of
Federal sector employment matters.
I suppose that as a matter of policy, of course, it would
be for the Congress to make the policy decisions, but I suppose
merging the agencies into a monolithic agency to deal with all
issues might have the apparent virtue of simplicity. But I
suppose the virtue of expertise might be lost as well, because
as Ms. Pope said, the FLRA has particular expertise, and we all
know that the MSPB has certain particular expertise as well,
and it has a certain portfolio of responsibilities which is
distinct. And the same is true for the EEOC.
And so, as I think this through while I am sitting here, it
strikes me that quite a bit of beneficial expertise might be
lost.
Senator Akaka. In addition to proposing changes to the
process for adjudicating unfair labor practices, the
Administration has proposed changes to the substance of Federal
labor law: The rights of labor unions, the rights of
management, what matters can be negotiated, and what remedies
are available.
What are your thoughts on these proposed changes? And what
changes, if any, do you believe need to be made to the rights
and protections afforded to employees and management under the
Federal labor management statute?
Mr. Beck. I have made Ms. Pope answer every question first,
so I guess I will take this one. My answer, unfortunately, has
to be very brief to that, Senator, and I am certainly not one
to duck questions. But I must say that I have given a lot more
thought in recent years to private sector labor relations than
I have to the somewhat different nuances of Federal sector
relations. As I sit here, I just do not really feel like I am
capable of opining on whether certain substantive changes to
rights and responsibilities of management and labor would be a
good idea or a bad idea.
If I go to the agency and I learn something more than I do
know about Federal sector labor law in particular, I will be
more than happy to come speak with you. I would love to testify
again, Senator, if you think I might have anything of value to
say on this subject, or meet with you and other Members of the
Committee informally. Once I have developed a little more
expertise on these questions, I certainly am quite willing to
be a resource to you if that would ever be of benefit.
Senator Akaka. Any comment, Ms. Pope?
Ms. Pope. I do not have any statutory changes and
amendments that I would identify. I note that the statute has
served us well for almost 30 years, and we have a significant
body of case law elucidating the statute and the rights and
responsibilities of the parties.
To the extent there may be pay and personnel changes that
may test the statute that certainly were not contemplated when
the statute was enacted, it will be up to the FLRA and their
interpretation of the law to apply it to any current situations
that were not contemplated at the time the statute was enacted.
And with respect to other changes, the FLRA, at the direction
of the chairman, at the direction of the Administration, would
address and look to speak to any possible amendments that may
be proposed by Congress or the Administration.
Senator Akaka. Well, as you know, the chairman of the FLRA
is to be the chief executive and administrative officer of the
Authority. The Department of Justice Office of Legal Counsel
has issued opinions stating that under such a designation the
chairs of boards and commissions, like the FLRA, are
responsible for the day-to-day administration of the policies
of the boards. Substantive policymaking and regulatory
authority is vested in the boards as a whole. However, these
opinions recognize that any number of the day-to-day business
practices may affect the board's policies and regulatory
authority.
Could each of you comment on whether you draw the line
between the responsibilities of a member of the FLRA and the
chairman of the FLRA? Ms. Pope.
Ms. Pope. As a sitting member, I feel like I should go
first in that answer. My response is I begin with the statute,
which clearly delineates the role of a chairman and the role of
a member. I believe and have benefited from Administrations
that looked to be collaborative with members in addressing our
statutory responsibility to provide leadership with respect to
Federal sector labor-management relations. Also, there is a
clearly defined role as the budget officer, having fiduciary
responsibility, that rests with the chairman.
Senator Akaka. Mr. Beck.
Mr. Beck. Yes, Senator. There are some clear distinctions,
and I look forward, if I am confirmed, to learning more about
the precise contours of those distinctions. But it is clear
that Congress intended a distinction in some respects between
the member who serves as chairman and the other non-chairman
members of the FLRA. The statute was passed in the late 1970s
originally and then was amended 4 or 5 years later because, as
originally passed, it had not designated the chairman as the
CEO and administrative officer.
And I think that certain Members of Congress, based on my
review of the legislative history, such as Senator Stevens, for
example, and Congresswoman Schroeder, came to the floor and
said that we think that there is a lack of accountability and
there is a certain amount of inefficiency going on at this
relatively new agency because there is no individual who is
clearly and unequivocally tasked with, say, budgetary
responsibilities, human resources responsibilities, and
purchasing responsibilities. So they did at that time add in
that language that the chairman is the CEO and administrative
officer. So, clearly, the chairman is supposed to have some
duties and some responsibilities that are distinct from and
greater than what the members do in terms of just managing the
agency.
With that said, though, while one person needs to be
accountable, one person does not need to make all decisions
from on high unilaterally without any input from anyone else.
And that is not my management style, and I do not think,
generally speaking, it is an effective management style. And so
I don't know what others who have gone before me may have done,
but what I would like to try to do, if I become the chairman of
this agency, is to work with Ms. Pope, and if we get another
member at the agency, to work with that member as well, and to
work with the staff and others in a very kind of open-door,
communicative, collaborative way so that as much as possible we
can get some kind of consensus, or near consensus, on what
needs to be done, at least on the big picture items.
And if somebody has to decide how many paper clips are we
going to buy this year, I will be happy to decide that, and
probably other folks don't need to be bothered with that sort
of question. But when it comes to major questions about
managing this agency, I think that doing so in as collaborative
a way as possible is obviously the way to go, and that is
particularly true for me, frankly, because I have not spent the
time at this agency that some other people have, that Ms. Pope
has, for example.
Senator Akaka. Well, I want to thank both of you for your
responses. Before we close I would like to ask if either of you
have any further remarks you would like to make about FLRA or
your position in it, and what you would like to see come about
at the FLRA. Ms. Pope.
Ms. Pope. I have always held in high regard the FLRA and
its mission and the responsibilities of the presidential
appointees at the agency. I look forward to continuing in that
role, if confirmed, and would be extremely excited and proud to
be a part of turning around the agency, so that if I ever had
the fortune of coming before you again, we are not ranked 31st
of 31 small agencies, but we are ranked No. 1. So I am excited
about the future of the agency and look forward to being a part
of it, if confirmed.
Senator Akaka. Mr. Beck.
Mr. Beck. I want to associate myself with Ms. Pope's
remarks and say essentially the same thing, Mr. Chairman. I
think some things need to be done at this agency, clearly, and
I look forward, if confirmed, to figuring out in short order
what they are and doing the best that all of us can to make
whatever changes are going to bring this agency up in terms of
not just employee satisfaction and engagement, but in terms of
processing cases, carrying out our core function of processing
cases and resolving impartially and promptly the disputes that
the parties bring to the agency. And I would like to also ask
that maybe if you don't mind too much, I will come knock on
your door at some point, and maybe some of the other Members of
this Committee who are interested in what is going on at the
FLRA because you have been looking at this agency longer than I
have. And I would really value, not only collaborating and
hearing from the people who are at the agency, like Ms. Pope
and other folks, folks who are on the staff over there, but I
would like to maybe be able to sit down, formally or
informally, with you, or any other Members who might be
interested, to get your views as well.
Senator Akaka. Well, let me respond to you and tell you my
door is open.
Mr. Beck. Thank you, Senator.
Senator Akaka. And I want to thank you both for your
responses, and I feel your mission is a very important one. It
is important because, as you succeed, there will be more
productivity, people will be working better, and that is why we
are all here. And so I want to thank each of you for being here
today and congratulate you again on your nominations. I have no
further questions at this time.
The hearing record will remain open until the close of
business tomorrow for Members of this Committee to submit
additional statements or questions they may have. I know you
both are anxious for your nominations to move forward. It is my
hope that the Committee and the Senate will take action in the
near future. Again, I want to thank you for bringing your
families and supporters here today, and thank you again for
your responses. This will be helpful to us in dealing with your
nominations. And I will talk to the Committee and try to make
every effort to move them as quickly as we can.
Ms. Pope. Thank you, Mr. Chairman.
Mr. Beck. Thank you, Senator.
Senator Akaka. Thank you very much. This hearing is
adjourned.
[Whereupon, at 3:30 p.m., the Committee was adjourned.]
A P P E N D I X
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