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FLRA Chair Justifies High Overturn Rate By Saying Arbitrators Are ‘Exceeding Authority’

A study by an arbitrator found that Colleen Duffy Kiko’s FLRA has set overturned awards roughly three times as often as the FLRA during the Obama and George W. Bush administrations.

The chairwoman of the Federal Labor Relations Authority on Tuesday justified the agency’s unusually high number of decisions overturning arbitration awards as the result of arbitrators “exceeding their authority.”

FLRA Chairwoman Colleen Duffy Kiko testified Tuesday before the House Oversight and Reform Committee’s subcommittee on government operations, where she was asked about a study by a federal arbitrator showing that the agency overturned arbitration awards under her watch roughly three times as often as her predecessors during the Obama and George W. Bush administrations.

An important caveat: the study’s author, I. B. Helburn, acknowledged that he looked into the issue after a case he oversaw was overturned in 2018. Helburn examined the results of the first 30 arbitration cases reviewed by the FLRA under Kiko, and compared those results with 30 consecutive cases where agencies appealed to the FLRA during the two previous presidential administrations.

During the Trump administration, the FLRA overturned 23 of the 30 cases, a rate of 76.7%. Only six cases were confirmed in favor of a federal employee union, of which four were a result of agencies making their appeal after the filing deadline. One case was remanded back to the arbitrator.

By comparison, only 26.7% of agency appeals led to an arbitrator award being overturned by the FLRA in the samples for both the Bush and Obama administrations.

In February, the Federal Education Association, a union representing teachers and support personnel at Defense Department-run schools around the world, filed a federal lawsuit against the FLRA, accusing it of “unprecedented bias” in its handling of arbitration cases. The union alleged that in the first 94 cases before the current FLRA board, the agency won 83 times, compared to only 10 awards for the union.

Supreme Court precedent, under a series of cases called the Steelworker Trilogy, dictates that courts and other adjudicative bodies treat arbitrator decisions with broad deference, and only overturn awards if their “essence” is not drawn from the underlying collective bargaining agreement.

Rep. Jamie Raskin, D-Md., asked Kiko if she had an explanation for these statistics.

“Three quarters of arbitration awards were set aside and reversed by the authority,” Raskin said. “A vastly disproportionate number of those were when there was a pro-union ruling. How do you explain this tremendous disparity?”

Kiko said that although she had seen the statistics, she wasn’t sure she agreed with them.

“What I do when I look at a case is look at the decision and the facts in front of me and the case law,” she said. “[I] don’t look at what I did before or how many times I’ve done it. I don’t keep a scorecard. I do defer to the arbitrator, but if the arbitrator violated the law or regulations, we’d certainly look at that . . . There are certain areas where you do have to look at if the arbitrator did go outside their authority.”

“But most arbitrators are pretty professional folks who specialize in doing this,” Raskin said. “They generally don’t make simplistic legal errors, do they? What have you found to justify overruling the vast majority of arbitration decisions and awards?”

“I don’t have a recollection of each case in front of me, but here are a couple of examples,” Kiko said. “In a case about the [U.S. Naval Ship Mercy] ..., an arbitrator overruled the decision ... that the captain had made for the benefit of employees on the ship. I’ve also seen an arbitrator overrule an agency on its own security policies on who could not get personal ID—PIV—cards. So those are some examples where the arbitrator exceeded their authority.”

The case of the Mercy was more specifically regarding whether employees of the ship were entitled to premium pay because the commander had ordered a restricted shore liberty while the ship was in port, a matter that is covered under the employees’ union contract.

Although Helburn noted that the study is merely “preliminary,” he said the results could have worrisome implications for labor-management relations at federal agencies.

“One [implication] is the possibility of less stable relations in the federal sector,” Helburn wrote. “Where precedent has been overturned by a majority Republican FLRA, the time may come when prior precedent is reinstated by a Democratic majority FLRA. Another is that the consistency that the parties and arbitrators use to inform respectively their advocacy or their awards may have evaporated, creating questions about the predictability of these relationships.”