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labor organization representation, the duty to bargain, and exceptions to arbitrators' awards.
During January 1, 1998–December 31, 1998: —2 representation petitions were filed; -1 Board decision was issued clarifying that several newly encumbered positions
were included in a previously certified unit; -2 Board Decisions and Directions of Election were issued, one of which set aside
the results of the initial election because of objectionable conduct and ordered a second election (prior to the holding of the second election, the labor organization withdrew its representation petition); -2 election agreements were entered into by the parties and approved by the Ex
ecutive Director on behalf of the Board; -2 elections were conducted. As a result of the elections, one labor organization
was certified as the bargaining representative of employees; -2 petitions were pending on December 31, 1998: a representation petition filed
by a labor organization seeking to represent a unit of approximately 19 employees, and a unit clarification petition seeking to resolve the unit status of certain
employees in a bargaining unit certified in 1997. The Office of the General Counsel
The Office of the General Counsel is responsible for matters arising under three sections of the CAA: section 210—Public Services and Accommodations under the Americans with Disabilities Act of 1990; section 215_Occupational Safety and Health Act of 1970; and section 220—unfair labor practices under chapter 71, of title 5, United States Code.
58 requests for Information and Technical Assistance were made from January 1998 through December 1998 under the following sections: Section 210: Public Services and Accommodations under the Americans with Disabilities Act of 1990
14 Section 215: Occupational Safety and Health Act of 1970 Section 220: Unfair Labor Practices under chapter 71, of title 5, United States Code
3 From January 1998 through December 1998, the following actions occurred: Section 210: Charges filed
1 Cases closed
1 Cases pending as of December 31, 1998 Section 215: Requests for inspections filed
21 Cases closed
18 Cases pending as of December 31, 1998
3 Section 220: Unfair Labor Practice charges filed
14 Complaints issued
1 Cases closed
9 Cases pending as of December 31, 1998
WORKLOAD AND OSHA EXPERIENCE Senator BENNETT. Thank you very much.
I am delighted that the demands on some of your services are going down, which shows that Congress is beginning to understand some of the things that they have to do and they do not need to come running to you for advice and counsel.
I am not surprised that the increase in OSHA is there. I remember when I was in the private sector, I walked into a company and they had a little sign hanging on the wall that said, if you think OSHA is a small town in Wisconsin, you are in real trouble. [Laughter.)
So, we are beginning to discover what business people have discovered.
At some point I would like to visit with you about what we have learned about OSHA that might be used to amend the law with respect to OSHA. I remember Senator Kempthorne and others were finding horror stories of OSHA requirements that defied all common sense. Someone was fined for improperly storing a toxic substance, and it turned out it was a squeeze bottle of Joy detergent that they put under the sink. Someone said that is improper storage of a toxic substance, and it is something every one of us does in our own homes all the time. There are not very many toddlers in the congressional work place who might get it and even fewer who might drink it. I think that was a case of regulatory overkill.
One of the reasons I supported the CAA was because I wanted Congress to begin to understand those kinds of experiences. We had them routinely in the business world and legislators just kind of laughed us off. Now if we can have some examples of legislators who are really upset by some of the regulatory excesses, maybe we can change the law. You have become the repository of those kinds of examples. So, at some point I would like to come talk to you about that.
Ms. SILBERMAN. Well, we would like to talk to you about it as well. Our experiences in OSHA have been very interesting. Generally we have found that the Congress and the congressional employees are working in important ways in much safer circumstances because of the OSHA regulation. Now, we like to think that we are not unreasonable regulators, and I know that the law has been put to very good use, and particularly in the area of flammable substances. You all were working under conditions that were dangerous to you and that we have been able to correct.
Senator BENNETT. I am sure that is true. I am not in any way suggesting that OSHA should be repealed, just maybe fine tuned a little here and there.
Senator Feinstein, do you have any questions?
POTENTIAL ADDITIONAL AUTHORITY Ms. Silberman, I gather from your comment if you were to get the enhanced authority, you would need an additional budget allocation. Is that correct?
Ms. SILBERMAN. We are not sure of that, Senator. One of the experiences that we have had is that in the beginning, at least when we got the original authority, there was a front-loading, of necessity, for publications of materials, for education and information, and of course, in any new law there is a lot of activity in the beginning.
My guess is that if we were to get the Library of Congress, the GAO, and the GPO in the way that the Board has recommended, that we might need some increase from what we have now reduced ourselves to. I have been loathe to get us into a situation where we would take these reductions and then get the increased authority and not be able to do it.
But I think we are OK. So far, we are certainly OK. Everybody has been wonderful about being realistic about what the needs of this office are, and I would trust that that would continue if we were to get the increased authority.
Senator FEINSTEIN. Could I ask you, is the enhanced authority you are referring to on page 3 of your executive summary? Are those the recommendations for changes?
Ms. SILBERMAN. There are recommendations in two areas which actually interrelate. One set of recommendations has to do with those areas of the CAA laws, the 11 CAA laws, which were not made applicable by Congress when it passed the CAA.
ENFORCEMENT AUTHORITY FOR RETALIATION Senator FEINSTEIN. Well, one of the things that intrigued me was this prohibits intimidation or reprisal for opposing any practice made unlawful by the act or for participation in any proceeding under the act. What is that all about?
Ms. SILBERMAN. Well, that is retaliation. Congressional employees are protected from retaliation under the CAA, but it is a general protection for which the Office of Compliance has no enforcement authority.
Senator FEINSTEIN. But what kind of retaliation could there be?
Ms. SILBERMAN. Well, for coming to file a claim at the Office of Compliance, people could get fired. People can be demoted. People can be intimidated. It is the one area, I have to tell you,
that our experience in 3 years is that we have insufficient enforcement authority. The report goes into that. The reason for that is that
Senator FEINSTEIN. Are you saying that a Member of Congress or a Member of the Senate would punish somebody for filing a report?
Ms. SILBERMAN. A Member of Congress or a Member of the Senate is an employer in the sense that one is an employer under the private sector. So, it is possible that that could happen.
But you also have to remember that there are 22,000 employees covered under the CAA. They include the Architect of the Capitol, the Capitol Police, and other small and larger legislative entities.
But reprisal and retaliation is the single most serious institutionthreatening act that can be taken under many of these laws. It is true in the private sector. When I was Vice Chairman of the EEOC, those were the complaints that we took most seriously, and it is true in the other enforcement agencies.
But you have to remember that under the CAA, the employees of the legislative branch have access to this wonderful alternative dispute resolution system. There is no investigation, and there is no enforcement of the law other than to go to court or to go into an adjudicative hearing.
Retaliation is the one area where mediation and counseling does not seem to work as well. People are concerned about using it because they are concerned about the act itself.
We have gone into that at some length, and there is a lot more about it in the report which I commend to you. We were asked by Congress, when you passed the CAA, to every 2 years review the effectiveness of the CAA in terms of new laws that have been passed and also our recommendations as to how it has worked. This was the report that was issued on January 1st of this year that has a lot of interesting stuff in it and I do commend it to you.
Senator FEINSTEIN. Could I ask you another question?
ADDITIONAL RECORD KEEPING
Senator FEINSTEIN. What kind of additional record keeping would be required of Members?
Ms. SILBERMAN. There is no record keeping required of Members, although there is considerable record keeping required in the private sector. That is another area of the law that Congress did not extend to itself which is part of the private sector law. This falls along the lines of what the Chairman was asking me before. The CAA does not completely apply the laws that are applied in the private sector, whether it is in OSHA—and certainly under the Fair Labor Standards Act.
The lack of record keeping requirements is another omission that the Board looked to, and we believe that it would be very helpful both to Senators and Congressmen and other employing offices, as well as to employees when employees file a claim, if there were some record keeping so that we could use that for a factual analysis. But there is no record keeping requirement. Early on our Board decided that that was not a change that they would be able to make under the standards that were established under the CAA, that it would take a legislative change to make record keeping requirements necessary.
Senator FEINSTEIN. Thank you.
I am interested in following up on Senator Feinstein's comment. The complaints that were actually filed. You say 12 complaints were filed. These are those that are unresolved.
Ms. SILBERMAN. That is right. That is correct.
Senator BENNETT. So, 12 complaints out of 22,000 is really quite an amazing record of accomplishment.
Ms. SILBERMAN. Well, yes, I think so. This is not a culture of complaint we have found. On the other hand, we also think that the law has worked as a deterrent and there has been widespread compliance. That is why when we went to do this 102(b) report, the Board was very careful to try and look to those areas in which we thought that change was necessary. In general, I would like to reiterate again and again that the alternative dispute resolution system is really working and working well.
Senator BENNETT. I looked down this list of 12. There is only one that says retaliation for opposing practices made unlawful by the CAA.
Ms. SILBERMAN. I think that that is a result of the fact that retaliation claims are seldom made if there is little hope of—the nature of the complaint is such that you have to provide the kind of protection that will make it possible for those complaints to be brought.
Senator BENNETT. Well, thank you very much. This is very interesting.
Ms. SILBERMAN. Thank you and thank you all again for your unfailing support.
Senator BENNETT. We appreciate it.
I do have one last question. It appears that the Office of the Architect of the Capitol has been a source of a number of complaints. You have a Deputy Executive Director for the House and a Deputy Executive Director for the Senate. Who is responsible for complaints when they do not come from either the House or the Senate?
Ms. TALKIN. I take on the Architect as well.
Senator BENNETT. I just wanted to make sure that it was not falling between the cracks.
Ms. TALKIN. Not at all.
Ms. SILBERMAN. They represent the major number of complaints that we get in all the areas. Of course, in the OSHA area, it is particularly true because they bear responsibility for the Senate and the House and the buildings.
Thank you very much.
Senator BENNETT. Thank you very much.
[Whereupon, at 10:16 a.m., Wednesday, March 10, the subcommittee was recessed, to reconvene subject to the call of the Chair.)