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Mr. Chairman, I thank you for the opportunity to testify here today, and I really want to express my appreciation to Christine Ciccone and to the staff of this committee. Their unfailing assistance has made it possible for us to be able to do the job that we have done. And we appreciate it very much.
[The statement follows:
PREPARED STATEMENT OF RICKY SILBERMAN Mr. Chairman and Members of the Subcommittee, I am pleased to present the budget request of the Office of Compliance (Office) for fiscal year 1999. The Office was established as an independent agency within the legislative branch by the Congressional Accountability Act of 1995 (CAA), which generally applies the rights and protections of eleven labor and employment laws to more than 20,000 covered congressional employees and employing offices. The CAA vests authority in the Office to administer and enforce the Act, to establish a confidential, timely and neutral dispute resoluti and adjudication process for claims arising under the Act and to provide education and information about the rights and protections provided under the Act.
To carry out these functions, the Office is requesting $2,286,000 for fiscal year 1999, a 7 percent decrease from the agency's fiscal year 1998 appropriation, with no increase in staff. This budget request is based on the agency's actual expenditures during its first two years of operation. The request includes funding for 19 full-time equivalent positions (FTE's), funding for a 3 percent cost of living increase for salaries, a reduction of 7 percent in personnel benefits, and a 17 percent reduction in other services, primarily for hearing officers, mediators, and court reporting services.
As mandated in the CAA, the Office is, as of January 1, 1998, fully operational. On January 23, 1996, most provisions of the law took effect, covering the House of Representatives, the Senate, the Capitol Guide Service, the Capitol Police, the Congressional Budget Office, the Office of the Architect of the Capitol, the Office of the Attending Physician, the Office of Compliance, and their employees. Additional provisions involving labor management relations went into effect on October 1, 1996, the OSHA and ADA public access provisions on January 1, 1997, and the section relating to safety and health was applied to the Library of Congress (Library) and the General Accounting Office (GAO) on December 30, 1997. The reports on the use of the Office by covered employees during calendar years 1996 and 1997 that were mandated by section 301(h) of the CAA are attached to this submission. These reports document the efficiency and effectiveness of the systems and processes which have been put in place.
As in our prior submissions, this request is based on two assumptions: that the Office of Compliance will remain in its present location in the Library of Congress; and that our caseload will remain at roughly current levels. Additional funding and staffing will be requested should either of these assumptions change. Further, this 1999 budget request takes into account that employees of the Library of Congress and the General Accounting Office will be covered under certain provisions of the CAA in fiscal year 1999. However, should Congress decide that GAO, GPO and/or the Library are to fall under the purview of the Office of Compliance more comprehensively than at present, additional funding and staffing will be required.
OFFICE OF COMPLIANCE'S AUTHORITY AND RESPONSIBILITIES The Congressional Accountability Act of 1995 established the Office of Compliance as an independent agency in the federal legislative branch. In addition to the fivemember Board of Directors who serve on a part-time basis, the CAA establishes four statutory officers: the Executive Director, the Deputy Executive Directors for the House and Senate, and the General Counsel.
Under the CAA, the Office is charged with establishing and administering an alternative dispute resolution process which provides counseling, mediation and adjudicative hearings and appeals for covered legislative branch employees. The CAA requires the Office's Executive Director, subject to Board approval, to adopt rules governing the procedures of the Office, and requires the Board to adopt substantive regulations for implementation of the CAA. The Office is also charged with providing education and information to Members of Congress, other employing offices, and employees of the legislative branch. The Office of the General Counsel is charged with
enforcement of the sections of the CAA dealing with unfair labor practices, safety and health, and disability access. This includes investigation and prosecution of claims under these sections, and periodic inspections to ensure compliance with health and safety, as well as disability access requirements.
DISPUTE RESOLUTION PROCESS REQUESTS FOR INFORMATION, COUNSELING, AND MEDLATION The Office provides covered employees in the legislative branch with a neutral, confidential, efficient process for resolving disputes relating to employment rights and protections. Employees and employing offices may, at any time, seek informal advice and information on the procedures of the Office and the rights, protections, and responsibilities afforded under the CAA. The Office responds to all inquiries on a confidential basis, and tracks both the number and the nature of the inquiries.
Before filing a formal complaint alleging a violation under the CAA, employees must request counseling and mediation which is provided under the auspices of the Office of Compliance in a neutral, confidential setting. During the 30-day counseling period, the counselor evaluates the alleged violation, advises the employee of his or her rights and responsibilities under the CAA, and facilitates resolution of the problem. If the counseling does not resolve the employee's concerns, the Office provides neutral, trained mediators to assist the parties in resolving the dispute. The period for mediation is generally 30 days, but may be extended at the request of the parties.
ADJUDICATION After counseling and mediation, if the dispute remains unresolved, the employee may choose either to pursue the claim through the adjudicative hearing process under the auspices of the Office, or file suit in Federal District Court. An employee who elects the adjudicative procedures of the Office files a formal complaint with the Office. The Executive Director appoints an independent Hearing Officer to consider the case and render a written decision, which may be appealed the Office's Board of Directors. The Board of Directors issues written decisions, which may then be appealed to the U.S. Court of Appeals for the Federal Circuit. The administrative hearing process offers speedier resolution and confidentiality, while offering the same remedies as civil action. Accomplishments in fiscal year 1997
Dispute Resolution Process.-Fiscal year 1997 was the first full fiscal year of operation of the Office's alternative dispute resolution process. The vast majority of workplace disputes received by the Office of Compliance are resolved in the first stages of the dispute resolution system prior to adjudication or litigation. During fiscal year 1997, a total of 1,716 calls for information were made to the Office directly, or to the Office's information line. In fiscal year 1997, a total of 165 formal counseling requests were filed, compared to 61 in our first 8 months of operations (in fiscal year 1996). Of the 61 filed in fiscal year 1996, 15 cases were pending in counseling as of October 1, 1996. A total of 158 requests for mediation were received in fiscal year 1997. Of the 184 cases that were either pending in counseling or mediation at the start of the fiscal year, or received as new requests for counseling, many of the cases (i.e., 75) were resolved during, or were not pursued past, this stage of the alternative dispute resolution process. At the end of fiscal year 1997, there were 14 cases in which the mediation period had recently ended and the period for filing a complaint remained open, and 32 cases which remained in mediation.
A total of 12 complaints were pending on October 1, 1996, and 6 new complaints were filed during fiscal year 1997. Six hearing officer decisions were issued on 13 cases; 5 appeals of hearing officer decisions were filed; and 2 Board decisions were issued on 9 cases.
Labor Management Relations.—The Office carries out the Board's investigative authorities under section 220(c)(1) of the CAA, involving issues concerning the appropriateness of units for labor organization representation, the duty to bargain, and exceptions to arbitrators' awards. The Office achieved several additional significant accomplishments related to union representation matters in fiscal year 1997. Four representation petitions were filed, and two pre-election investigatory hearings were held. Based on records developed during the pre-election investigatory hearings, two Board Decisions and Directions of Election were issued. One election agreement was entered into by the parties and approved by the Executive Director on behalf of the Board. Elections were held in all three of these cases, in addition to a runoff election in one of the three. Two cases were pending at the end of fiscal year 1997: a representation petition seeking to organize a unit of approximately 35
employees, and a unit clarification petition seeking to include additional employees in a unit certified in fiscal year 1997. Plans for fiscal year 1998 and fiscal year 1999
The number of mediations conducted in fiscal year 1998 and fiscal year 1999 is projected to increase from fiscal year 1997. The number of mediation requests received in the last half of fiscal year 1997 was much higher than in the first half. This may indicate a trend which would result in a moderately increased workload in this area. An increase in the number of mediations may also result in a higher number of unresolved disputes. Accordingly, the numbers of complaints and hearings are also projected to increase.
În fiscal year 1998, as collective bargaining agreements are negotiated and as parties begin the bargaining process, disputes may arise as to an employing office's duty to bargain over a proposal. If an employing office declares a proposal non-negotiable, the labor organization may petition the Board for review, and the Board will issue a decision in the matter. After the collective bargaining agreements are in place in fiscal year 1998 or in fiscal year 1999, the Board may be called upon to review arbitrators' awards. Either party to an arbitrator's award can file an exception to the award claiming that the award is deficient under section 220 of the CAA, and the Board will make a determination on the matter.
Additionally, under Section 220 of the CAA, the Board exercises the authorities of the Federal Services Impasses Panel to resolve impasses which may arise in the collective bargaining process in the legislative branch. The Board may exercise that authority in a number of ways: the Board can ask the Executive Director to appoint a mediator; Board members can also act as arbitrators or hold hearings. Since the Board has not yet been called upon to make determinations in these areas, it is difficult to project if additional resources will be required.
INSPECTIONS, TECHNICAL ASSISTANCE, AND INVESTIGATIONS
OCCUPATIONAL SAFETY AND HEALTH Periodic Inspection.—The CAA requires the General Counsel of the Office of Compliance to inspect facilities in the legislative branch for compliance with safety and health standards at least once each Congress, and report the findings to Congress. The first inspection is taking place during the 105th Congress, a two-year period that runs from January, 1997 through December, 1998.
Approximately 20 million square feet of space are included in the inspection, including the Capitol Power Plant, and numerous carpentry, paint finishing and metal shops. Questionnaires survey the safety
and health conditions of more than 1,000 District offices throughout the country. Employing offices are informed of any deficiencies identified, so that hazards can be corrected as soon as possible. As mandated in section 215 of the CAA, the report to Congress will describe the status of compliance with safety and health laws and identify those violations that have not been corrected. Section 215(eX3) of the CAA requires that citations be issued for violations identified in the inspection that have not yet been corrected by the time the report is submitted.
Requests for Safety and Health Inspections.-On January 1, 1997, the CAA's safety and health provisions became effective, including a provision giving covered employees the right to request inspections of possibly hazardous conditions in work areas. Except for situations involving imminent danger, when a request for an inspection is received, the General Counsel notifies the employing office of the allegation. Employing offices are given the opportunity to resolve the alleged violation and provide the Ofñce of the General Counsel (OGC) with the information necessary for the Office to determine that appropriate action has been taken.
In the event that the employing office responsible for abating a condition that violates an OSHA standard is unable to correct the problem within a specified time, the OGC inspects and issues citations and/or notifications, as appropriate. If, after issuing a citation, the General Counsel determines that a violation has not been corrected, the General Counsel may file a complaint with the Office which is submitted to a hearing officer. If correcting hazardous conditions frequently results in cases going to hearing, additional personnel may be needed for such litigation.
Technical Assistance.—Like OSHA, the OGC has the responsibility for providing compliance assistance to employing offices and covered employees. The OGC also provides interpretations of OSHA standards to employing offices upon request, as well as information about proposed OSHA regulations that affect their operations.
Accomplishments in fiscal year 1997
During fiscal year 1997, virtually all of the non-office space was inspected, including the Capitol Power Plant, off-site warehouses at Blue Plains, Fort Meade, and Alexandria, electrical rooms, and mechanical shops; these are the areas in which most deficiencies would reasonably be expected to be concentrated. In the inspections conducted to date for the 105th Congress, some 50 conditions serious enough to constitute violations of OSHA safety and health standards have been identified. If these hazards are not remedied in a timely fashion, citations will be issued and litigation to enforce the citations could be necessary:
During the last nine months of the fiscal year, the OGC received 15 requests for inspection, and resolved ten of the cases.
During fiscal year 1997, the OGC responded to 72 requests for technical assistance about workplace safety and health concerns, such as the need for respirators to protect against harmful chemical exposures and the need for building evacuation plans. The OGC has also recently prepared information explaining OSHA's proposed new requirements to control the spread of tuberculosis to employing offices, including the Office of the Attending Physician and the Capitol Police. Plans for fiscal year 1998 and fiscal year 1999
As of January 1, 1998, both the Library of Congress and the General Accounting Office are covered by the safety and health provisions of the CAA. Thus, an additional 5.5 million square feet of space are now required to be in compliance with the safety and health standards, and the number of employees who are covered by the safety and health provisions is increased over 40 percent, from 20,000 to 28,000. For this reason, an additional $20,000 has been requested for the safety and health consultant, both for conducting the inspections and for providing the technical assistance necessitated by the additional 8,300 covered employees. For example, the OGC plans to assist in the development of programs to reduce occupational injuries in legislative branch agencies that have high lost time injury and illness rates.
If citations and litigation are necessary in cases of noncompliance, the workload of the OGC could necessitate increased funding. This will be addressed in a supplemental request for funding, should it become necessary.
The number of requests for inspections may be higher in fiscal year 1999. In the first five months of fiscal year 1998, nine requests have been received, as compared to the 15 received in the last nine months of fiscal year 1997. In addition, as of January 1, 1998, the 8,300 additional employees of the Library and the GAO have been added to the pool of potential complainants, which will likely result in an increase in requests for inspection. If citations and litigation are necessary in cases of noncompliance, an increased workload for the OĞC could necessitate additional staff and/or funding in the future.
PUBLIC SERVICES AND ACCOMMODATIONS UNDER THE AMERICANS WITH DISABILITIES
Inspections.-Pursuant to section 210 of the CAA, the Office of the General Counsel conducts inspections at least once each Congress to determine compliance with the rights and protections against discrimination in the provision of public services and accommodations established by the Americans with Disabilities Act. The inspection cycle is similar to the cycle for the safety and health inspections described above. However, since only public areas, and not those areas used exclusively by employees, are subject to this provision of the CAA, less space is inspected-an estimated 8 million square feet rather than the 20 million feet inspected for safety and health.
Technical Assistance.—The CAA directs the OGC to provide employing offices with technical advice to assist them in complying with disability access requirements. In addition, the OGC routinely answers questions from and provides information to Congressional offices on disability access laws. Accomplishments in fiscal year 1997
In fiscal year 1997, the OGC received 67 requests for information about disability access requirements. These included questions such as: the wording that should be used in notices for town meetings about accommodations available for individuals with disabilities, the type of auxiliary aids that Congressional offices are required to make available upon request, and whether disability access laws require that District offices in inaccessible buildings relocate.
The OGC also prepared and distributed materials explaining the disability access requirements that typically apply to Congressional offices and the public services and activities they undertake. This information is also published on the Office of Compliance web page (www.compliance.gov).
Plans for fiscal year 1998 and fiscal year 1999
Funding to fulfill the disability access provision of the CAA is expected to remain at roughly its current level in fiscal year 1999, unless CAA coverage is expanded to the Library or GAO. In fiscal year 1997, considerable assistance was received from the Department of Justice and the Access Board. If this assistance were no longer available to the OGC, it is estimated that an additional 150 consulting hours at roughly $80 per hour would be necessary to fulfill the mandatory functions. This will be addressed in a supplemental request for funding, should it become necessary.
UNFAIR LABOR PRACTICES The General Counsel is responsible for receiving and investigating allegations of unfair labor practices filed under section 220 of the
CAA, and for filing and prosecuting complaints of unfair labor practices with the Office. Accomplishments in fiscal year 1997
A total of ten charges of unfair labor practices were submitted to the OGC for investigation during the fiscal year. The OGC also received 22 requests for assistance or information about labor-management relations issues covered by section 220. Plans for fiscal year 1998 and fiscal year 1999
The trend in charge filing indicates that the OGC's unfair labor practice workload will likely increase in fiscal year 1998 and fiscal year 1999. During the first five months of fiscal year 1998, nine charges were submitted, nearly as many as were submitted in all of fiscal year 1997. Additionally, during fiscal year 1997, none of the charges filed proceeded to the complaint and hearing, either because the parties resolved the dispute or because the General Counsel determined after investigation that the evidence was insufficient to warrant the filing of a complaint. Although the policy of encouraging settlement prior to the filing of a complaint is expected to continue, there will most likely be cases in which settlement cannot be achieved. In this event, after the General Counsel files a complaint, the Executive Director will assign a hearing officer to hear the complaint.
EDUCATION AND INFORMATION Under the CAA, the Office of Compliance provides education and information to Congress, other employing offices of the legislative branch, and covered employees. In order to fulfill its mandate to inform covered employees and employing offices of their rights, protections and responsibilities under the CAA, the education and information program distributes written materials and publications, conducts briefings, maintains a web site on the Internet and provides counseling, referrals, and information to employees and employing offices on an individual basis. Accomplishments in fiscal year 1997
The first annual report, presenting statistics on the use of the Office of Compliance, was submitted to Congress on October 1, 1997. The report covers the period from January 23, 1996, when the CAA went into effect, to December 31, 1996.
The CAAnews, a newsletter published quarterly and containing updated information on the CAA and the Office of Compliance, was mailed to the residences of 20,000 covered employees throughout the year.
Briefings were presented twice a month by the Office to new Senate employees in order to familiarize them with the CAA and the Office of Compliance. Regularly scheduled monthly briefing were conducted for House employing office senior staff. These briefings have focused on specific areas of the CAA, including Office of Compliance dispute resolution procedures, the mediation process, the Fair Labor Standards Act, and the Family and Medical Leave Act.
The Office of Compliance world wide website disseminates information via the Internet. The website (www.compliance.gov), located on a GPO server and accessible via GPO's Access system, is updated on an ongoing basis. It currently includes the 400 page "Guide to the Congressional Accountability Act” manual, employee rights and protections brochures, regulations promulgated by the Board of Directors, decisions by the Board, and information on ADA public access and accommodations and OSHA compliance.
The Office reference manual, “A Guide to the Congressional Accountability Act”, includes summaries of the laws applied by the CAA, question and answer sections for each law, and a complete set of the Office's procedural and substantive rules. Updates to the manual were distributed throughout the year. Two copies of the manual were provided to newly elected members of the 15th Congress, for their Capitol and District offices.