Colleen Duffy Kiko claims the agency was violating the Civil Service Reform Act by recognizing its union, despite a 1980 Justice Department legal opinion stating otherwise.
The chairwoman of an agency tasked with resolving disputes between federal employee unions and management at federal agencies recently decided to cease recognition of the organization’s own labor group.
Federal Labor Relations Authority Chairwoman Colleen Duffy Kiko announced the decision in a letter to the Union of Authority Employees last December, the day after the union’s collective bargaining agreement had expired. She argued that because the 1978 Civil Service Reform Act exempted the FLRA from rules requiring agencies to recognize labor unions in the federal government, the agency has been breaking the law by working with the union.
“The FLRA is categorically exempted, by the express wording of the statute, from the rights provided to employees in other executive branch agencies,” she wrote. “Therefore, by establishing a labor relations system, the FLRA already violated the statute. As chairman, I cannot ignore Congress’ plain exclusion of the FLRA from the statute.”
The decision goes against a 1980 legal opinion from the Justice Department Office of Legal Counsel that stated that although there lacks any legislative record explaining the decision to exempt the FLRA from the statute, the legislative text likely is meant to prevent conflicts of interest, wherein FLRA employees could be investigating disputes between their union and the agency. The opinion cited the late Rep. Morris Udall, D-Ariz., one of the architects of the law.
The law further stipulates that employees “engaged in administering any provision of law related to labor-management relations,” like those at the FLRA, cannot be represented by a union “which represents other individuals to whom such provision applies.” Therefore, the Justice Department concluded that the exemption existed to prevent FLRA employees from being represented by larger labor unions like the American Federation of Government Employees and from being able to seek redress from the FLRA.
Indeed, Union of Authority Employees acting President Fernando Colón said that for four decades, his labor organization has had a successful relationship with FLRA management, despite several restrictions unique in the federal sector. Unlike most bargaining units, the union cannot appeal arbitration decisions to an administrative body—the FLRA can simply choose whether or not to enforce a grievance award.
“But that’s never been an issue for us, to be honest,” he said. “Our relationship has never been that contentious, even during the worst of times . . . In the time that I’ve been here, there has not been one grievance filed in the last five years.”
In a statement, Ernest DuBester, the lone Democratic appointee on the FLRA’s three-member board, blasted Kiko’s decision as contrary to congressional intent.
“As the agency charged with overseeing [the] labor relations system, the FLRA will accomplish its mission most effectively if it models the collective-bargaining values and principles it encourages federal agencies to follow, and bargains collectively with its own employees,” he said. “Acting to the contrary raises serious questions about the commitment to the FLRA’s mission.”
Colón said he fears the move will further erode public trust in the agency tasked with adjudicating labor-management disputes in the federal government. President Trump has neglected to appoint a general counsel to the agency, all but blocking new complaints from reaching the board. And in a lawsuit filed last week, the National Education Association, a union representing teachers and other education employees at Defense Department schools, accused the FLRA of systemic bias, noting that members frequently overturned decisions in favor of unions, but upheld every single decision that favored management.
“That sentiment is already out there,” Colón said. “And it’s clear based on that particular lawsuit that employees are beginning to choose not to file with the FLRA.”
The decertification letter fell just hours before the partial government shutdown shuttered the FLRA for 35 days, and Colón said that combination has brought morale at the agency to a new low.
“Employees here really care about the mission and about our work,” he said. “This decision, on top of everything else going on for the past two years, has really affected morale. A lot of good people, who have been here for many years and have a lot of institutional knowledge, are leaving the agency, and that’s very unfortunate.”