House Democrats Try to Bully FLRA Chair at Hearing

View this article online at https://www.fedsmith.com/2019/06/10/house-democrats-try-bully-flra-chair-hearing/ and visit FedSmith.com to sign up for free news updates
By on June 10, 2019 in Human Resources with 0 Comments

On June 4, I watched the Government Operations Subcommittee of the House Committee on Oversight and Reform conduct a hearing titled “Examining Federal Labor-Management Relations”. To watch it yourself, you must advance the recording to 59:28 as the hearing started late due to House voting.

The only witness at the hearing was Federal Labor Relations Authority (FLRA) Chairman Colleen Duffy Kiko.

As I watched the hearing, it became clear that the Democrats on the Subcommittee had a number of things in common and clear agenda:

  • To a person, they lacked a clue about the statute under discussion.
  • They misquoted the law and misunderstood its provisions.
  • Their questions were not only wrongheaded but demonstrated a failure on their part to do any homework before attending.
  • They appeared to be using scripts prepared for them by one of the unions, likely the American Federation of Government Employees (AFGE) or perhaps authored by the minority member of FLRA or one of his staff.
  • They personally attacked Chairman Kiko, a long serving Federal employee.
  • Ms. Kiko was accused of “extreme anti-union bias”, of making untruthful statements and lacking responsibility as the manager of the FLRA.

If the conduct of these representatives had not been so reprehensible, it might have merely been a laughable repeat of the many days I was forced to sit and listen to ignorant union babble at negotiations, arbitrations, grievance meetings and other interactions.

Last year, I testified before this same committee on the use of official time. At that time, the Republicans were in the majority, and the panel on which I testified was largely treated cordially and respectfully by the representatives.

To prepare to do that, I read a number of articles, and the one that stuck out was from The Hill which said that witnesses were expected to address facts while the committee members were there to engage in drama.

The drama in the hearing on June 4 was a tragic comedy of errors.

FLRA’s Union

One of the issues addressed was Chairman Kiko’s decision to no longer recognize a union of FLRA employees.

5 U.S. Code §7103(a) (3) specifically excludes the FLRA and the Federal Service Impasses Panel as an “agency” under the law. This means that no provision of that law may be applied; not official time, not negotiations, not representation, not office space, nothing. In other words, spending government funds without a statutory authorization to recognize such a union would easily be considered a misappropriation of such funds.

I raised this issue in a 2007 FedSmith article. At that time, I had to go to the FLRA’s Inspector General to get copies of the earlier advisory memos supporting recognition. I thought it fishy that they wouldn’t release them on a FOIA request but reading them passed on the appropriate smell.

Any Agency representative with some standing could regale you with stories of the FLRA’s General Counsel staff and its absolute neglect of even the appearance of neutrality. These field attorneys ginned up unfair labor practice (ULP) allegations from nowhere and regularly provided advice and assistance to the union representatives on not just ULPs but in every aspect of the statute. I remember being told by a field attorney from the DC region that she was the union steward for that office so I shouldn’t be surprised she was willing to help. No kidding!

Office Closure

Another issue raised by the representatives was the closure of two FLRA regional offices, Dallas and Boston.

The Office of Management and Budget in 2017 directed Agencies to basically slim down their operations wherever possible.

In the course of this hearing, it was established that ULP allegations were down substantially. FLRA regions handle ULP cases and Representation case, both of which are at low levels. Considering issues such as staff overhead and operating costs at regional sites, it doesn’t even take a committee congressman to see that if costs can be reduced, they should be.

All of the attacks on Ms. Kiko claimed she was biased against unions, but perhaps she is biased, and I hope so, against unnecessary costs for managing the FLRA. Rep. Lynch (MA) attacked the reduction, but I guess he must, since it might be hard to put the interests of taxpayers ahead of his interest in keeping jobs in his district, even if only a few. 

The NLRA versus the FSLMRS

Ms. Kiko was called to task by Rep. Raskin of Maryland for the FLRA’s high recent reversal or modification of arbitrator’s awards citing the Supreme Court’s “Steelworker’s Trilogy” and the Taft Hartley Amendments to the National Labor Relations Act.

Wikipedia says of the congressman, “Prior to his election to Congress, he was a law professor who taught constitutional law at American University Washington College of Law, where he co-founded and directed of the LL.M. program on Law and Government and co-founded the Marshall-Brennan Constitutional Literacy Project.”

He must have gotten confused by the questions passed to him by AFGE since the “Steelworkers Trilogy” is a private sector case with no relevance to the requirements of the Federal sector statute.

FLRA is charged with insuring that arbitrator decisions arise from not only a Collective Bargaining Agreement (CBA) but all of the laws and regulations that bind Federal employees. This creates a complex arbitration environment, but let’s forgive the congressman; former Chairman Pope and current minority member DuBester never understood it either.

Conditions of Employment versus Working Conditions

In an extremely awkward 5-minute segment, which seemed like an hour, congressman Eleanor Holmes Norton got lost questioning Chairman Kiko on a recent FLRA decision making a distinction between Conditions of Employment and Working Conditions. Her AFGE script really failed her, and instead of giving FLRA’s Chairman a chance to answer, she told us that she knows because she taught law at George Washington U.

She did make it clear that Congress, not FLRA, interpreted laws, a fact I didn’t know before. I thought they left interpretation up to the Agencies charged to do that and ultimately the courts.

I did a pretty comprehensive Google search but couldn’t find any congressional cases interpreting statutes. But I could be way off on this.

Employee Satisfaction at FLRA

A number of the questioners were critical of the FLRA’s drop in employee satisfaction after Ms. Kiko became Chairman. Nobody mentioned the rise in employee satisfaction when Carol Pope became chairman. There were no whippings mentioned, nor were reductions in telework, office size, moving in unergonomic furniture, requiring FLRA employees to work harder or any reason for the drop or earlier rise for that matter.

My opinion is that the General Counsel career staff suffers from so strong a caser of pro-union activism and anti-Agency animus (seen it, been there) that these rises and falls have absolutely nothing to do with how these folks are treated but instead result from who appointed the majority members. This survey’s credibility at FLRA is zero. To give it any credence is a true waste of taxpayers’ dollars as was this entire hearing.

As always, the opinions you see above are mine alone, although I suspect some out there might agree.

© 2019 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

Tags:

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

Top