Management

Was FLRA’s union removal biased or legally necessary?

Federal Labor Relations Authority Chairman Colleen Duffy Kiko shocked members of Congress and the labor relations community when she made the decision in late 2018 to decertify the union representing employees at her agency, leaving them without collective bargaining rights.

According to democratic members of the House Committee on Oversight and Reform who spoke at a June 5 hearing, the decision shows clear bias in Kiko as part of a larger Trump administration anti-union initiative.

“Much like the president who appointed her, the FLRA chairman has exhibited unprecedented anti-union bias,” said Rep. Gerry Connolly, D-Va.

“Chairman Kiko decertified the federal employee union that had represented employees at the FLRA since 1980. No previous chairman in the history of the FLRA, under any administration of either political party, has done that. This act reveals her personal and disqualifying anti-union bias.”

But according to Kiko, who testified at the hearing, her choice to decertify the union was purely based on her reading of federal statute, which excluded the FLRA from union representation requirements.

“The decision was based on the fact that Congress excluded the FLRA from the reach of the statute, explicitly carving it out of the list of agencies that enjoy the benefits of collective bargaining under the statute,” said Kiko.

“As chairman, I was not comfortable perpetuating that I believed was at odds with the letter and spirit of the law.”

According to Rep. Mark Meadows, R-N.C., the decertification was necessary because the FLRA is responsible for making determinations in disputes between agency management and federal unions.

“As you made the decision recently with respect to its quasi union representation, I think you ought to be applauded for that,” said Meadows.

“Simply put, if the agency is tasked calling balls and strikes in the federal labor disputes, it’s a member of one of the teams before them that can’t give rise to the appearance of a conflict of interest.”

But democratic members noted that Kiko’s decision overturns years of agency and legal precedent that allows for FLRA employees to be represented by unions.

“We have precedent here, we have 40 years of precedent, that would belie what you just asserted,” said Connolly.

“We argue it’s unique, misguided and certainly misinterprets the law.”

Rep. Stephen Lynch, D-Mass., noted that even the original writers of the Federal Service Labor-Management Relations Statute — namely then-Rep. Morris K. Udall of Arizona — have clarified that individuals in the FLRA can’t be represented by a union that represents employees from other agencies, which would invite a conflict of interest, but can be represented by a union that does not have such conflicts.

“His interpretation is different than yours, and he wrote the bill,” said Lynch.

According to Kiko, her office is still awaiting a response from its Office of Legal Counsel on whether her interpretation of the statute stands on firm ground.

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