Democratic lawmakers blasted decisions that overturned decades of agency precedent, and suggested Federal Labor Relations Authority Chairwoman Colleen Duffy Kiko was untruthful in her testimony.
Federal Labor Relations Authority Chairwoman Colleen Duffy Kiko on Tuesday sought to justify two recent controversial decisions before a House panel, but Democratic lawmakers were less than receptive.
Kiko has been lambasted in recent months over her decision to close two FLRA regional offices—Boston and Dallas—and to decertify the agency’s union, the Union of Authority Employees, which bargained collectively on behalf of FLRA workers for nearly four decades.
She told the House Oversight and Reform Committee’s subcommittee on government operations that the decision to consolidate regional offices was based in part on a significant decrease in the number of cases filed with the agency going back to at least 2007, and noted that all impacted employees were offered positions in other offices as well as relocation expenses. Ultimately, of the 16 employees in the Boston and Dallas offices, only seven elected to remain with the FLRA.
“Efforts to consolidate began before I became chairman, but I approved the consolidation after carefully reviewing the plan and the underlying data,” Kiko said. “By 2007, our intake had drastically declined, and it’s hard to justify maintaining regional offices in seven cities when the work could be carried out just as efficiently in fewer cities. Technological advances have changed the way we do work, so there is much less need for agents to conduct on-site investigations.”
Subcommittee Chairman Rep. Gerry Connolly, D-Va., asked Kiko how the FLRA analyzed whether to consolidate its regional offices.
“The four factors in our reform plan were the number of cases taken in each region, the number of employees in each regional office, studying locality to see if [an office] was close enough to another location to be geographically located, and also the rent costs [of each office],” she said.
“Was there ever any discussion among the three [FLRA members] to close all of the regional offices?” Connolly asked.
“No,” Kiko said. That answer produced an incredulous reaction from Connolly.
“That’s your sworn answer?” he asked.
Subcommittee ranking member Rep. Mark Meadows, R-N.C., who was the only Republican to ask questions of Kiko, sought to defuse the situation.
“I do believe that you’re being honest in your testimony,” Meadows said. “The one area that the chairman took pause was about the closing of all the offices, so I would ask that you get with your staff and make sure that, in the spirit of the question that he asked, that you get back to this committee within seven days. Because I could tell, well, I play poker occasionally and I would not have wanted to go against him on that particular one. Obviously he has information that is contrary to your testimony.”
“I would have to say that my answer was, ‘Not to my recollection,’” Kiko said. “I would have to look back and see if there’s ever been a time, I don’t have any recollection of that.”
Connolly also pressed Kiko on her decision to overturn nearly 40 years of precedent, where FLRA chairs of both parties determined it was legal for FLRA employees to collectively bargain. Kiko said her decision was derived from a reading of the “plain language” of the statute that establishes the agency, which became law as part of the 1978 Civil Service Reform Act.
“I believe the statute was created to have one entity separate from the statute in order to maintain neutrality and manage disputes between all other agencies in the federal government that are covered by the statute,” Kiko said.
“Your argument may have some cogency if the law were new, if we had just passed the statute and you were the first to interpret it,” Connolly said. “But we have precedent here, 40 years plus of it, that would belie what you asserted. None of your predecessors, Republican or Democrat, have ever interpreted the law the way that you have interpreted the law, nor did any of them take the action you took.”
In 1980, the Justice Department Office of Legal Counsel issued an opinion concluding that the language excluding the FLRA was not an effort to prevent unionization at the agency, but rather an effort to avoid conflicts of interest, essentially barring FLRA workers from being represented by a union that also represents workers at other agencies.
“I looked at the 1980 opinion of the OLC, and I disagree with its reasoning,” Kiko said. “I believe it is not appropriate. I don’t follow the logic where they said that even though the statute excluded the FLRA from the coverage of the statute, that they really believe that perhaps they didn’t mean it.”
Rep. Stephen Lynch, D-Mass., noted that the OLC opinion in question relies heavily on the statements of former Rep. Morris Udall, D-Ariz., one of the authors of the law.
“We have the opinion of someone who did write it,” Lynch said. “His interpretation is different from yours, and he wrote the law. He’s not a stranger. You’ve come up with, after 40 years, a different interpretation, but I’ve got to go with Mr. Udall on this because he wrote it. The end result is that you have left employees with no protections at all, and they’ve been stripped of their rights, and I can’t believe the source of this is not anti-union bias.”
Kiko denied having any sort of bias, and said she values the role of collective bargaining in the federal government.
“I have no anti-union bias in any regard in any of the decisions I make in this agency,” she said. “My job here is to interpret the statute, and I will do this as long as I’m sitting here in this agency. This statute says that collective bargaining is in the best interest of the federal government, and I believe that and I will follow the statute. There is no anti-union bias. Certain decisions suggest that, I understand, but it is not true.”