[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
EXAMINING FEDERAL LABOR-MANAGEMENT RELATIONS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON GOVERNMENT OPERATIONS
OF THE
COMMITTEE ON OVERSIGHT
AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JUNE 4, 2019
__________
Serial No. 116-33
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Printed for the use of the Committee on Oversight and Reform
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COMMITTEE ON OVERSIGHT AND REFORM
ELIJAH E. CUMMINGS, Maryland, Chairman
Carolyn B. Maloney, New York Jim Jordan, Ohio, Ranking Minority
Eleanor Holmes Norton, District of Member
Columbia Justin Amash, Michigan
Wm. Lacy Clay, Missouri Paul A. Gosar, Arizona
Stephen F. Lynch, Massachusetts Virginia Foxx, North Carolina
Jim Cooper, Tennessee Thomas Massie, Kentucky
Gerald E. Connolly, Virginia Mark Meadows, North Carolina
Raja Krishnamoorthi, Illinois Jody B. Hice, Georgia
Jamie Raskin, Maryland Glenn Grothman, Wisconsin
Harley Rouda, California James Comer, Kentucky
Katie Hill, California Michael Cloud, Texas
Debbie Wasserman Schultz, Florida Bob Gibbs, Ohio
John P. Sarbanes, Maryland Ralph Norman, South Carolina
Peter Welch, Vermont Clay Higgins, Louisiana
Jackie Speier, California Chip Roy, Texas
Robin L. Kelly, Illinois Carol D. Miller, West Virginia
Mark DeSaulnier, California Mark E. Green, Tennessee
Brenda L. Lawrence, Michigan Kelly Armstrong, North Dakota
Stacey E. Plaskett, Virgin Islands W. Gregory Steube, Florida
Ro Khanna, California
Jimmy Gomez, California
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan
David Rapallo, Staff Director
Wendy Ginsberg, Subcommittee Staff Director
Elisa LaNier, Chief Clerk and Director of Operations
Joshua Zucker, Assistant Clerk
Christopher Hixon, Minority Staff Director
Contact Number: 202-225-5051
Subcommittee on Government Operations
Gerald E. Connolly, Virginia, Chairman
Eleanor Holmes Norton, District of Mark Meadows, North Carolina,
Columbia, Ranking Minority Member
John Sarbanes, Maryland Thomas Massie, Kentucky
Jackie Speier, California Jody Hice, Georgia
Brenda Lawrence, Michigan Glenn Grothman, Wisconsin
Stacey Plaskett, Virgin Islands James Comer, Kentucky
Ro Khanna, California Ralph Norman, South Carolina
Stephen Lynch, Massachsetts W. Steube, Florida
Jamie Raskin, Maryland
C O N T E N T S
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Page
Hearing held on June 4, 2019..................................... 1
Witnesses
The Honorable Colleen Duffy Kiko, Chairman, Federal Labor
Relations Authority
Oral statement............................................... 4
Written opening statement and statement for the witness are
available on the U.S. House of Representatives Document
Repository at: https://docs.house.gov.
INDEX OF DOCUMENTS
----------
The documents entered into the record for this hearing are listed
below/available at: https://docs.house.gov.
* Letter from Members of Congress to the House Appropriations
Committee; submitted by Rep. Lynch.
* Letter from Members of the Senate to Colleen Duffy Kiko,
chairman, Federal Labor Relations Authority; submitted by Rep.
Lynch.
* Letter from the National Air Traffic Controllers Association;
submitted by Rep. Lynch.
* Letter from the AFL-CIO and about 30 affiliated unions;
submitted by Rep. Lynch.
* QFR: from Rep. Raskin.
* QFR: from Del. Norton.
* QFR: from Chairman Connolly.
* QFR: response from Chairman Colleen Kiko, Fedeal Labor
Relations Authority.
EXAMINING FEDERAL LABOR-MANAGEMENT RELATIONS
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Tuesday, June 4, 2019
House of Representatives
Subcommittee on Government Operations
Committee on Oversight and Reform
Washington, D.C.
The subcommittee met, pursuant to notice, at 2:48 p.m., in
room 2154, Rayburn House Office Building, Hon. Gerald E.
Connolly (chairman of the subcommittee) presiding.
Present: Representatives Connolly, Norton, Sarbanes,
Khanna, Lynch, Raskin, Meadows, Grothman, Comer, and Jordan.
Mr. Connolly. The subcommittee will come to order. Without
objection, the chair is authorized to declare a recess of the
committee at any time.
The Subcommittee on Government Operations is convening
today to hold this hearing, ``Examining Federal Labor-
Management Relations.''
And I apologize on behalf of the U.S. House of
Representatives, Chairman Kiko. We had votes called around 1:45
and they just got over. So we came back as fast as we could,
and we are sorry to keep you waiting.
I now recognize myself for five minutes to give an opening
statement.
More than two million Federal employees work on behalf of
the American people. They care for veterans, enforce the law,
ensure the safety and quality of our food and drinking water,
conduct scientific research, and repair our warfighting
equipment, among many other important tasks on behalf of the
American people.
They are also represented in many cases by unions because
Congress--Congress--determined by law that giving Federal
workers the right to join unions and bargain collectively over
their conditions of employment was ``in the public interest.''
In fact, that law states, and I quote: ``The statutory
protection of the right of employees to organize, bargain
collectively, and participant through labor organizations of
their own choosing in decisions which affect them safeguards
the public interests, contributes to the effective conduct of
public business, and facilitates and encourages the amicable
settlement of disputes between employees and their employers
involving conditions of employment.''
Congress created the Federal Labor Relations Authority to
administer, interpret, and enforce the system of labor
management relations. The FLRA is part judicial, with a three-
member authority; part enforcement agency, with its Office of
General Counsel; and part arbitrator, with its Federal Service
Impasse Panel. Under the law, the FLRA ``shall provide
leadership in establishing policies and guidance'' relating to
the system of labor management relations that Congress
established in law.
Today, this subcommittee, the Subcommittee on Government
Operations, will examine the Trump administration's leadership
of this small but very powerful and influential agency and the
consequences of the practices and operations on our system of
labor management relations.
The Trump administration has made no attempt to disguise
its hostility toward collective bargaining, unions, and Federal
service labor laws. But one year ago President Trump issued
three sweeping executive orders that stripped employees,
including whistleblowers, of union representation at grievance
proceedings, physically expelled unions from Federal offices,
and imposed dramatic cuts to the ability of Federal employees
to represent their coworkers on work time, known as official
time.
A Federal judge struck down key provisions of those
executive orders, finding that they were, quote, ``an improper
exercise of the President's statutory authority,'' and
illegally--illegally--conflicted with the rights, duties, and
procedures that Congress had established in law decades
earlier.
The judge also wrote that: Many of the challenged
provisions of the orders at issue here effectively reduce the
scope of the right to bargain collectively as Congress has
crafted it, or it impairs the ability of agency officials to
bargain in good faith as Congress, in law, has directed.
Much like the President who appointed this Chairman, the
FLRA Chairman has exhibited unprecedented anti-union bias.
Chairman Kiko decertified the Federal employee union that has
represented employees at the FLRA since 1980. No previous
Chairman in the history of the FLRA, under any administration
of either political party, has ever done that, or presumed to
do it.
This single act reveals, I think, a personal and
disqualifying anti-union bias. The explanation for this
blatantly anti-union decision is at odds with the Department of
Justice's Office of Legal Counsel guidance, which characterized
the position taken as unreasonable.
As a judge, Chairman Kiko and the other Republican
Authority members have disregarded longstanding Supreme Court
precedents and, in my view, violated the FLRA's own regulations
to rule against the unions.
Persistent vacancies in the top position in the FLRA's
Office of General Counsel have also allowed a backlog of more
than 200 documented violations of Federal labor law to go
unaddressed or unresolved.
As a manager, Chairman Kiko has earned a failing grade from
the employees of the Authority itself. According to the
Partnership for Public Service's analysis of OPM's Federal
Employee Viewpoint Survey, employee engagement during Chairman
Kiko's tenure fell 31 points in one year, from 2017 to 2018, a
drop more precipitous than any other agency measured and of any
small agency.
I also have serious concerns about the reliability of
representations made to Congress. In a March 2018 letter,
Chairman Kiko told Congress that her reorganization of the
regional offices of the FLRA, which closed offices in Boston
and Dallas, would increase the number of agents and have almost
no net impact on staffing. In fact, those decisions led to a 21
percent cut in staff and placed unreasonable burdens on
remaining employees.
Chairman Kiko's statutory interpretation is, as the Office
of Legal Counsel said, unreasonable. It contradicts and
disregards longstanding precedent.
The anti-union bias seems to be present, if not extreme.
The agency she leads has not prosecuted a single violation
since 2017. And her mismanagement has demoralized and
dismantled the capacity of the principal enforcement agency of
Federal service law.
Forty years ago, Congress codified collective bargaining
rights and labor management practices as a critical component
of civil service reform to foster an effective, merit-based
Federal work force. Congress, and in particular this committee
and subcommittee, will continue to value and protect those
rights.
I look toward to this hearing as an opportunity to put the
administration and the FLRA Chairman on notice.
With that, I yield to the distinguished ranking member, my
friend from North Carolina, Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman.
At the outset, obviously, Chairman Kiko, I'd like to
welcome you and thank you for appearing here today.
As you well know, this committee is charged with rooting
out waste, fraud, and abuse in our Federal Government, and
usually when someone comes before this committee it's because
they have done something wrong.
I have a good friend in the chairman, and so I would
disagree with some of his opening statement, and I do that
respectfully, and I think he knows that. And, yet, at the same
time, you've laid out in your opening testimony some of the
examples of how an agency can be highly effective and how it
should be highly effective in the changing times of technology,
and for that I applaud you.
Everyday Americans would be forgiven for not knowing
exactly what the FLRA is or does, but that doesn't mean that
the Authority's mission is not vitally critical. So I just want
to say thank you for your service.
Now, through its three components the FLRA adjudicates,
investigates, prosecutes, and resolves disputes between Federal
agencies' management and their employees and unions, and this
helps us make sure that the Federal work force runs smoothly
and serves our constituents back home.
Obviously, since the year 2000, the FLRA has seen its
number of unfair labor practices fall by more than 40 percent.
And yet, as we have seen this number, the cases, also since
2000, FLRA has seen its number of representation cases fall by
more than 50 percent.
And so as we look at this, faced with this decline, it's
only reasonable that you would look to consolidate and
reorganize. That decision, Congress would hope that you would
look at agency heads when faced with something that is
difficult and challenging. From your testimony, it appears that
you have done that. Obviously, we had a phone call yesterday
where we talked about some of those initiatives.
And, listen, this is all about being effective and
efficient. And the full chairman, of the full committee, uses
those two words consistently. And so as we look at that with
information technology and how the committee works, we need to
encourage those realignments.
And so I want to just say that, as you made a decision
recently with respect to its quasi-union representation, I
think you ought to be applauded for that. Applying and
complying with the law is certainly an obligation that all
agency heads and personnel should abide by, and I just want to
say thank you for that.
Simply put, if the agency is tasked with 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. So in our conversations, hopefully we
can have that illuminated a little bit more today as you
provide your testimony.
You've shared with me personally, and I have no reason to
believe that there is any personal motivations in any of this
other than trying to indeed apply the law and apply it fairly
for an efficient and effective work force.
So with that, I look forward to hearing, and I yield back
to the chairman.
Mr. Connolly. I thank my friend from North Carolina, the
distinguished ranking member.
We have before us today our witness for today's hearing,
the Honorable Colleen Duffy Kiko, Chairman of the Federal Labor
Relations Authority.
Chairman Kiko, if you wouldn't mind rising and raising your
right hand to be sworn in, which is our practice in this
committee.
Do you swear or affirm that the testimony you're about to
give is the truth, the whole truth, and nothing but the truth,
so help you God?
Ms. Kiko. I do.
Mr. Connolly. Let the record show the witness answered in
the affirmative.
Thank you.
The microphones are sensitive, so if you would speak
directly into them, which I think you already got.
Also, without objection, your written statement will be
made part of the formal record of this hearing.
With that, you're now recognized for five minutes for an
oral summary of your statement.
Welcome, Chairman Kiko.
STATEMENT OF THE HONORABLE COLLEEN DUFFY KIKO, CHAIRMAN,
FEDERAL LABOR RELATIONS AUTHORITY
Ms. Kiko. Chairman Connolly, Ranking Member Meadows, and
members of the subcommittee, I would like to thank you for
holding this hearing to allow me the opportunity to highlight
the good work being done at the Federal Labor Relations
Authority.
As a Federal employee for more than 30 years, I'm thankful
to the men and women who have chosen to dedicate their lives to
public service. I would like to again express my appreciation
to the FLRA staff for all the great work they do each day.
My first role model of a Federal employee was my father,
Lawrence Duffy, who proudly spent over 49 years in Federal
service as a railway mail carrier for the U.S. Postal Service
and as an inspector for the U.S. Customs Service. His work
ethic, the great pride he took in his job, and impeccable
character were examples for me.
My career with the Federal Government began after I moved
here from North Dakota in 1972, and I soon found myself at the
FLRA when it was created in 1979. Since then, I have worked in
almost every component of the agency, and from 2005 through
2008, I had the privilege of serving as its general counsel.
I mention this history to you to try to convey the respect
and pride I have for the agency, its mission, and the men and
women who work there.
As you know, a key function of our agency is issuing
quality legal decisions or work product in a timely manner. One
of our goals in this area is to ensure that the case law is as
clear as possible and consistent with the plain wording of the
statute.
One of my highest priorities has been the development of
our staff-driven Strategic Plan. The plan is being implemented
through a number of employee-led teams. I'm excited about
seeing and implementing the recommendations of these teams at
the agency, and would be happy to discuss them in more detail
during the course of the hearing.
Examples of these initiatives include aligning performance
standards with our strategic goals, improving our quality,
productivity, and timeliness, customer outreach, expanding the
use of electronic filing for our parties, providing useful
tools for our customers, and ensuring our employees have the
best technology and training they need to do their jobs.
While I take pride in the quality of our legal work
products and the productivity of our staff in carrying out our
mission, I've had to make some difficult management decisions
during my first 18 months as Chairman. One of the most
difficult decisions was to close the Boston and Dallas regional
offices.
As a formal general counsel, I know firsthand what the work
of the agency's regional offices entails, as well as how to
work has changed over the four decades. And although
assessments to further consolidate began before I became the
Chairman, I approved the consolidation after carefully
reviewing the plan and the underlying data. I was convinced
that consolidation would enhance our ability to carry out our
mission in a more cost-effective and efficient manner.
For example, in 2017 our annual intake of cases had
drastically declined. In the face of the data, it was hard to
justify maintaining regional offices in seven cities when the
agency's work could be carried out just as efficiently in fewer
locations. In addition, technological advancements changed the
way we do work. As such, there is much less of a need for our
agents to conduct onsite investigations.
Finally, I want to emphasize that the consolidation was
accomplished without a reduction in force. At the end of the
day, the decision to close these two offices was a decision to
cut buildings, not people.
The other difficult decision I made that was not popular
with many employees was my decision last December to no longer
recognize the employee organization at the FLRA, the Union of
Authority Employees, or the UAE.
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.
Despite this fact, the agency and the UAE had executed a
collective bargaining agreement before my tenure. We followed
in good faith the terms of the agreement and continued to honor
its terms until its expiration in December 2018.
As Chairman, I'm not comfortable perpetuating a program
that I believed was at odds with the letter and spirit of the
law that created our agency and that we are tasked with
administering. I consider the impartiality and neutrality of
the agency to be of paramount importance, and I believe the
statutory exclusion enhances the agency's position of
neutrality because we do not participate in the labor-
management-relations system we administer.
However, I firmly believe that all of our employees have
valuable, innovative ideas on how to accomplish the FLRA's
mission, and I look forward, through our teams, to find new and
innovative ways to engage with our employees. I'm confident
that we can work collaboratively to create solutions that
reflect the unique perspectives of our staff.
I would like to thank this committee and subcommittee for
your support of our agency and our mission throughout the
years, and I look forward to working with you in the future. I
would be pleased to answer any questions you may have.
Mr. Connolly. Thank you so much. Right on time.
If I may begin with the last point you made. You cite as
legal underpinning, statutory underpinning for your decision to
de-recognize, if you want to put it that way, the union at
FLRA, the fact that your agency is exempted from the Federal
Labor Relations Act. Is that correct?
Ms. Kiko. That is correct.
Mr. Connolly. You need to make sure that is on.
Are there other agencies also exempted?
Ms. Kiko. Yes, there are.
Mr. Connolly. Can you name them?
Ms. Kiko. I believe there are CIA--I have the statute with
me, so I could read them if you'd like.
Mr. Connolly. Well, let me give you one that is known to my
friend, the ranking member, and myself: TVA.
Ms. Kiko. Yes.
Mr. Connolly. It's exempted.
Ms. Kiko. Yes.
Mr. Connolly. Do they have a union?
Ms. Kiko. Yes.
Mr. Connolly. Why?
Ms. Kiko. Because they exempted themselves from the statue
so they could have their own labor-management-relations system.
Mr. Connolly. But the point is, there are many ways of
interpreting, or at least there is more than one way of
interpreting the law, correct?
Ms. Kiko. Most likely, yes.
Mr. Connolly. Well, given the fact TVA did not make the
decision you did on its face, there is a second way of looking
at the law.
Ms. Kiko. Right.
Mr. Connolly. You would concede.
Ms. Kiko. I would concede.
Mr. Connolly. So why did you choose to interpret it this
way instead of the way TVA did and not be subject to the
concern that you're anti-union and that you all about vitiating
collective bargaining?
Ms. Kiko. I believe that the statute was created to have
one entity separate from the statute in order to maintain
neutrality and manage the disputes between all of the other
agencies in the Federal Government that are covered by the
statute. There are several parts of the statute that
specifically exempt us.
Mr. Connolly. I understand that. But, Chairman Kiko, your
argument would have some cogency if it were new, if we had just
passed the statute and you were the first to have to interpret
it. But we have precedents here. We have 40 years plus of
precedent that would belie what you just asserted. None of your
predecessors, Republican or Democrat, ever interpreted the law
the way you have interpreted the law, nor did any of them take
the action you took.
Are you, what, are you especially gifted in interpreting
the law in a way that your predecessors were not? Or are you
asserting they actually misunderstood and misinterpreted the
law?
Ms. Kiko. Well, the first thing I did when I took this job
was I raised my hand and I said that I would uphold the statute
and the Constitution of--the Constitution and the statutes that
I had to honor in front of me. When I did that, I read the
statute and I realized that it's very clear that the FLRA is
exempt from the collective bargaining process in the statute.
To have a collective bargaining office in the agency that I
was handling, to me, felt as if it was completely
inappropriate.
Mr. Connolly. I understand. But my question is, I
understand----
Ms. Kiko. And why----
Mr. Connolly. That is your reasoning, but now you have to
an account for the fact that none of your predecessors arrived
at the same conclusion that you did.
Ms. Kiko. I can't speak for the people before me. I can
only speak to myself and what I have to do when I'm wearing the
Chairman's hat. I feel as if I have to follow the law that is
written in front of me.
Mr. Connolly. Well, Chairman Kiko, we write the laws around
here.
Ms. Kiko. That's right.
Mr. Connolly. And now you're in front of a committee----
Ms. Kiko. Yes.
Mr. Connolly [continuing]. that has jurisdiction over this
particular law and your agency. And, obviously, many of us
pretty strongly disagree with your interpretation. In fact, we
argue it's unique, misguided, and certainly misinterprets the
law.
Ms. Kiko. Uh-huh.
Mr. Connolly. And we hearken back to a ruling by the Office
of Legal Counsel that goes back to 1980, we hearken to the fact
that there are judicial rulings already that have been issued
with respect to executive orders that ultimately impinge on
this subject and more maybe to come. And so I'm giving you the
opportunity besides saying ``I took an oath.'' So did I. I took
the same oath you did.
Ms. Kiko. Right.
Mr. Connolly. I interpret the law quite differently than
you do. So I'm trying to give you the opportunity to explain,
how did you arrive at this unique conclusion no one else
arrived at?
Ms. Kiko. Well, I looked at the 1980 opinion of the Office
of Legal Counsel, and I disagree with its reasoning. I believe
that it is not appropriate. I don't follow the logic of 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. That they looked at another
section in the statute to suggest that perhaps because of that
part of the statute they meant that they didn't really mean to
exclude the FLRA from the collective bargaining rules of the
statute, but said that when you are going to--if you are going
to have a labor relations system in your office, make sure
you're not violating the statute.
Mr. Connolly. Okay. Well----
Ms. Kiko. To me, that's just inconsistent.
Mr. Connolly. Yes. Thank you. You've answered what I was
trying to get at. You disagree with that legal opinion?
Ms. Kiko. I do.
Mr. Connolly. And were you able to rely on a current legal
opinion that was different than that one?
Ms. Kiko. No.
Mr. Connolly. So this was something you came to?
Ms. Kiko. Yes.
Mr. Connolly. As the head of the organization?
Ms. Kiko. Yes.
Mr. Connolly. One more question, because my time is up.
Dallas and Boston, you arrived at the conclusion based on
what, the workload, volume?
Ms. Kiko. The four factors that were considered in the
reform plan were the number of cases that were intake, the
number of cases that came in each of the regions, the number of
employees in each of those regional offices, the locality of
the regional office to see if it was close enough to another
location to be geographically located, and then also the rent
costs. Those were the four factors that were looked at in the
reform plan to determine which regions to close.
Mr. Connolly. Was there ever a discussion among the three
judges--I believe it's the three that ultimately arrived at
that conclusion. Is that correct?
Ms. Kiko. Yes.
Mr. Connolly. Was there ever a discussion among the three
of you to close all of your regional offices?
Ms. Kiko. No.
Mr. Connolly. Never?
Ms. Kiko. Not--not with me, no.
Mr. Connolly. Okay. That's your sworn answer?
Ms. Kiko. If I had any conversations with the current
members on whether to close all of the regions?
Mr. Connolly. Yes.
Ms. Kiko. No.
Mr. Connolly. Okay.
You talked about the fact that this was an efficiency
measure to close the Dallas and Boston offices.
Ms. Kiko. Say it again.
Mr. Collins. It was an efficiency measure to close those
two offices?
Ms. Kiko. Yes.
Mr. Connolly. You had other reasons, but----
Ms. Kiko. It was an efficiency reason to consolidate
regional offices, not necessarily to pick those two out of the
blue?
Mr. Connolly. And the argument was it would free up staff
to actually do more and better work. Is that correct?
Ms. Kiko. To close the regions was to free up staff to do
different work?
Mr. Connolly. Well, what happened to the staff in those two
offices who had assignments and were working on cases?
Ms. Kiko. There were 16 employees in those two regional
offices. Of the 16, seven stayed with the office, stayed with
the Federal Labor Relations Authority, and 9 of them chose to
go somewhere else, either they went to other Federal agencies
in their location or they chose to retire or leave the
government for other reasons.
Ms. Kiko. Okay. So that's the 21 percent cut in staff, what
you just----
Ms. Kiko. Well, where are you getting the 21 percent cut in
staff? I'm not following that.
Mr. Connolly. Well, the argument was made that it would
increase--it would have almost no net impact on staffing, and
as a matter of fact, it did have an impact on staffing.
Ms. Kiko. We hoped it wouldn't, yes. We hoped all 16 of
them would come with the agency.
Mr. Connolly. And what about a backlog? Is there a backlog
in cases for your agency?
Ms. Kiko. There's a backlog in the Office of General
Counsel, if that's what you're referring to. We do not have a
general counsel, as you are aware.
Whenever the regional office recommends a complaint be
issued on a particular case, and you referenced that in your
opening statement, that we do have about 200 cases that are
pending a decision by the general counsel to issue a complaint
on those issues, those matters. So that is a backlog, yes.
And there's also a backlog on cases that a regional
director has dismissed and that is still pending an appeal
before the general counsel. There's also a backlog in that area
as well.
Mr. Connolly. And a final point, if I may, and then I'll
call on my good friend from North Carolina.
The Partnership for Public Service, looking at the Employee
Viewpoint Survey, which it does routinely for Federal agencies,
found that in your two-year tenure employee engagement fell 31
points as measured from 2017 to 2018, a very precipitous drop.
Can you account for that?
Ms. Kiko. Well, I would like to say that I understand
exactly why it is, but I'm not exactly sure. I can point to
some factors that could have affected those numbers.
Most importantly, I believe, was I announced to the agency
on February 2018 that I would be closing the two regional
offices, and the survey itself was taken in May--in June 2018.
And so I'm sure that that had an effect on the feelings of the
agency.
The scores in the Federal Employee Viewpoint Survey are
much lower in the Office of General Counsel than they were in
the overall Authority. So I believe that could be a factor that
could reflect those scores.
But I am doing everything in my power in my agency to look
at those questions, to find out which ones were the challenges,
and to find out ways to find out the source of that, and to see
if we can turn it around. That's very important to me.
Mr. Connolly. Thank you very much.
And my time is up. I call upon the distinguished ranking
member.
Mr. Meadows. Thank you, Mr. Chairman.
Chairman Kiko, let me come back to that last point, because
one of the areas that is very important to both the Chairman
and I is really the opinions of our public servants. And that
survey--actually I was unaware of that survey before I came to
be a Member of Congress, and now I come to rely on it. Max, we
have conversations regularly. And I was real concerned, as we
started to change the perimeters of how that survey is done,
that we might change the benchmark.
So here is my ask of you, I guess, on that. Employee
engagement, employee satisfaction, there are a number of things
that can affect that. Would you be willing to look on and
provide to this committee in the next 60 days an action plan on
how you can look at more employee engagement for the FLRA and
commit to getting that action plan back to this committee?
Ms. Kiko. I'd be happy to, sir.
Mr. Meadows. And I think here's--listen, at that very table
a few hours ago we had a number of officials that actually work
for this administration that I don't know that they were
exactly giving us the straight scoop when we were talking about
facial recognition and some of the back and forth.
I do believe that you're being honest in your testimony.
The one area that, obviously, the Chairman took pause on was
about the closing of all the offices. So I would ask if you
would 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 that there was--well, I play poker
occasionally, and I would not have wanted to go against him on
that particular one. So, obviously, he has information that is
contrary to your testimony here today. And so if in the next
seven days either you can confirm that testimony or, if you
need to change it, get with the chairman on that.
Ms. Kiko. I would have to say that my answer was: not to my
recollection. I would have to look back and see if there's ever
been at a time. I don't have any recollection of that.
Mr. Meadows. Well, for us to properly evaluate this, if
you'll get with your team and do that. And is it accurate,
though, in the closing down of these two offices and your
reorganization plan, it was never your desire to eliminate any
employee, any Federal employee? Is that correct?
Ms. Kiko. That is correct.
Mr. Meadows. So in the reorganization, it was your hope
that they could actually stay with your agency and continue to
serve, although you probably knew that if you were closing an
office, the chances of them going to another office would be
sometimes difficult. Relocation is not something that some
families want to do. Is that correct?
Ms. Kiko. That's correct.
Mr. Meadows. As you look at this statute, do you have
attorneys on your staff?
Ms. Kiko. Yes.
Mr. Meadows. With the attorneys looking at your
interpretation of the statute, and my good friend the chairman
indicated that it's different than both Republican and Democrat
predecessors, but your attorneys on staff, do they feel like
that you are going well beyond what they interpret the statute
to mean? Do they think that you're in uncharted territories and
have they expressed caution?
Ms. Kiko. Well, the Chairman--the Acting Chairman of the
FLRA, prior to my tenure here had also believed that this
agency should not have a union and sent a request to the Office
of Legal Counsel for an additional opinion. We have not
received a response from that at this time, but I believe that
would suggest that someone else had that same interest in
interpreting the statute.
But I don't make any decision by myself. I look to my staff
and my attorneys, and I had good legal advice that I was
standing on terra firma on this decision.
Mr. Meadows. All right. So the employees that lost their
jobs, were they--they were offered jobs at other--either other
FLRA locations----
Ms. Kiko. Yes.
Mr. Meadows [continuing]. before they made a determination
to go to another agency or retire. Is that correct?
Ms. Kiko. Yes. Every employee was offered a position in an
office that--it was their--they actually had some preferences
and were allowed to say where they would like to go based on
the staff, the space that we had in each of the regions. So,
yes, everyone was specifically offered a position----
Mr. Meadows. And you said it was Dallas and Boston. Is that
correct?
Ms. Kiko. Yes, Dallas and Boston.
Mr. Meadows. So if someone was having to move from Dallas,
let's say, to Washington, DC, I mean, was there help with
moving expenses? I mean, would that have been something that
your agency would have offered to them for the moving expenses?
Ms. Kiko. Absolutely, yes.
Mr. Meadows. Okay. So here is where--I believe you're an
earnest, honest public servant, and it's in your DNA. I didn't
realize that until your testimony, it's in your DNA.
Here is the concern. I think for the Chairman, and I don't
want to speak for him, but sometimes there is a slippery slope
that a number of us on both sides of the aisle, for different
reasons, worry about those slippery slopes. And if this is the
initiation of an anti-union really modus operandi, then we have
got a real problem. And you even have a problem with me.
And so is it your sworn testimony today that your
motivation was not an anti-union motivation, but that it was
more of an efficiency in your reorganization plan?
Ms. Kiko. I have no anti-union bias in any regard in any of
the decisions that I make in this agency. My job here is to
interpret the statute, and I will do that as long as I'm
sitting here in this agency. And this statute says that
collective bargaining is in the best interests of the Federal
Government, and I believe that, and I will follow the statute.
So there is no anti-union bias. Certain decisions suggest
that, I understand, but that is not true.
Mr. Meadows. And I'll finish with this, Mr. Chairman.
Are you committed then to work with this committee to, one,
help us understand the decisions better, and then also look to
make sure how we protect those rights, those collective
bargaining rights going forward? Are you willing to do that?
Ms. Kiko. Absolutely.
Mr. Meadows. All right. I yield back.
Mr. Connolly. If the gentleman would allow, just before I
call on Ms. Norton.
I want to clarify your answer to Mr. Meadow's question. I
thought you testified in answer to my question that you relied
on your own counsel. You had decided without anybody telling
you otherwise that the 1980 opinion was wrong and that,
whatever the thinking of your predecessors, you took an oath
and you read the statute and your reading was what it was. And
it was done without--I even asked about relying on legal
counsel, was there counter legal counsel giving you that
confidence of that opinion, and I thought you said: No, I
arrived at it by myself.
Ms. Kiko. Well, I misinterpreted the question. I thought
you meant was there other Office of Legal Counsel opinions that
I relied on.
Mr. Connolly. Okay.
Ms. Kiko. I apologize if that was----
Mr. Connolly. No, no. Okay. I just wanted to give you the
chance to clarify. Thank you very much.
Ms. Norton.
Ms. Norton. Thank you very much, Mr. Chairman. I think this
hearing is important to clarify and would help our Federal
workers to understand how to interpret recent decisions of the
Authority.
Ms. Kiko, do you agree that collective bargaining is a
rational way to solve problems within the Federal Government
and to promote peace--what is commonly called labor peace?
Ms. Kiko. Yes, I do.
Ms. Norton. You have testified you show no anti-union bias,
so I would like to ask you questions based on some of your
recent decisions.
I was struck by your interpretation of the labor service--
the Federal Service Labor-Management Relations Statute which
defines collective bargaining, and I'm going to read its
definition: A good faith effort to reach agreement with respect
to conditions of employment. It seems pretty straightforward to
me.
In a couple of your recent decisions, you made decisions
that--distinctions that I've seldom seen. These distinctions
were between the words--so follow me--``conditions of
employment'' and ``working conditions.''
Now, I'm not going to indicate what I think the average
American, how they would read those words, I'm going to go to
the decisions of the Authority. And there are any number of
precedents where this matter has come before. And what I am
trying to understand is what appears to be a departure from
precedent.
So let me just ask you, since they came during your watch,
what is the difference between working conditions and
conditions of employment?
Ms. Kiko. Well, thank you, Congresswoman.
I believe the statute very clearly uses the terms
conditions of employment and working conditions in two
different--in different ways. The term conditions of employment
is defined by personnel policies, practices, and matters
affecting working conditions. In the past the precedent has
synonymous--or made the two terms synonymous. The conditions of
employment and working conditions were the same thing.
I believe they are two different things, and that is the
case law that's coming out now, is looking at those terms to
see if we can't more clearly define them.
Ms. Norton. So you are conceding that no distinction until
your own decisions had been made between those two phrases?
Ms. Kiko. I would concede that there were--they were
synonymously, had been defined in the same terminology in the
past.
Ms. Norton. And, of course, Chairwoman Kiko, when people
try to follow the law, they don't have anything really to guide
them except precedent. And I just want to cite to you and ask
you whether this precedent is something that you looked at
before essentially making a contrary--a contrary
interpretation.
And I'm quoting now from the Authority's decision, the one
I'm quoting from is GSA Eastern Distribution Center,
Burlington, New Jersey. And there the Authority stated: ``a
purported distinction between 'conditions of employment' and
'working conditions' to narrow the parties' bargaining
obligations directly conflicts with the congressional intent.''
So essentially what you're going to have to show is that
what Congress intended is the interpretation you are now
making, not what the decision I just quoted said was consistent
with congressional intent.
So how is your reversal of how this statute was interpreted
before your changes, how is your interpretation consistent with
congressional intent? Because you just can't change a statute.
Ms. Kiko. Right. Right.
Ms. Norton. And you certainly just can't turn your own
precedents around. So you have got to go to something
authoritative. Last time I looked, Congress is the
authoritative--has issued the authoritative words that the
authority must look to in deciding whether or not it agrees
with existing precedent.
Ms. Kiko. Yes, I believe the first thing we look at in
determining any case before us is the statutory language. And
we also look at precedent. But, to me, when I look at
precedent, I look at it and use it if it is consistent with the
plain language of the statute. If it is not consistent with the
plain language of the statute, then I would look to the
precedent as to changing the precedent because I would feel
that it is not consistent with the language of the statute.
Ms. Norton. I understand that, Ms. Kiko, but it's not
simply what the Authority has found. Both the courts and the
Authority have accorded these terms: a broad interpretation
that encapsulates a wide range of subjects that is effectively
synonymous with conditions of employment.
Now, either we want to interpret this statute so as to give
those who must abide by it some understanding of what they're
supposed to do or we send a message don't rely on past
precedent or even your reading of the statute because somebody
in the Authority may disregard their own precedents and to
simply decide to read the statute in an entirely different way.
I still don't understand the difference between those two
terms.
Ms. Kiko. Well, I think----
Ms. Norton. I mean, you know, you can give us a cramped
interpretation, the way we would do in my law school classes
where I taught as a tenured professor of law at Georgetown. And
this is the kind of hypothetical I would give them and dare
somebody in the class to tell me what is the difference and how
you would defend that difference.
I suppose that's what I'm doing here today, Ms. Kiko,
because I need to know why in the face of precedent, and the
use of words which appear to be similar, you have found it
necessary to overturn existing precedent.
Mr. Connolly. I thank the gentlelady.
And, Ms. Kiko, you may respond, and then I'm going to call
on the distinguished ranking member, Mr. Jordan.
Ms. Kiko. Thank you, Congressman. I appreciate the
hearkening back to law school. I do recall many times answering
types of questions like that. I appreciate it.
I believe that the way the wording of the statute says when
it says conditions of employment mean any personnel policies
and practices affecting working conditions. I don't believe
that Congress would have used the same word in working
conditions to mean conditions of employment unless they--I
believe they didn't--they used two words for a reason.
And so what I'm trying to do is to look at the precedent
and find out how that precedent applies to the words of a
statute. And, frankly, I think it needs some clarification for
the parties.
Precedent in the FLRA has changed over the years in lots of
different areas. I'm looking at the precedent, but I don't
change precedent unless I feel it's not true to the statute.
And that's where I would look now to see how best to define the
term ``working conditions'' in that context so that parties
understand it.
That's one of the main thing I'm trying to do in this, as
the Chairman of the Authority working with the other members,
is to make sure that our decisions are clear, easy to read,
understandable, so that anybody can understand them.
Mr. Connolly. Thank you.
I now call upon the distinguished ranking member of the
full committee, Mr. Jordan.
Mr. Jordan. Thank you, Mr. Chairman. And I appreciate you
and Mr. Meadows, the work you're doing here, and the whole
committee doing oversight like this committee is supposed to
do.
But I'll be real brief. I just want to thank Chairwoman
Kiko for being here today.
I've heard nothing but good reports about the work you're
doing, and we appreciate the public service and the devotion
you bring to your task. And I just wanted to stop down and say
thank you for your good work.
And with that, Mr. Chairman, I yield back.
Ms. Kiko. Thank you, Congressman.
Mr. Connolly. You're not from Ohio, are you?
Ms. Kiko. Well, some part of my family is from Ohio.
Mr. Connolly. I suspected.
Thank you, Mr. Jordan.
And I call upon Mr. Sarbanes from Maryland.
Mr. Sarbanes. Thank you, Mr. Chairman.
Chairman Kiko, thanks from being here.
I'm concerned about the reports of your tenure that we are
taking from these surveys. The chairman mentioned it a minute
ago, that the Employee Viewpoint Survey results have pretty
much tanked recently. I'm just going to go over some of those
numbers.
In 2018, only 24 percent of the employees of the Authority
believed senior leaders generate high levels of motivation and
commitment. That was down from 86 percent in 2015.
In 2018, only 26 percent had a high level of respect for
senior leaders, down from 85 percent in 2015.
Twenty-seven percent in 2018 believed senior leaders
maintain high standards of honesty and integrity. Again, this
is down from 85 percent in 2015.
So this huge drop in terms of the way employees feel about
the Authority, where they're working, appears to be associated
with your tenure, your taking over of the role as Chair.
You're the leading Presidentially appointed, Senate-
confirmed official. You were sworn in as Chairman December 1--
or 11--of 2017. Do you think these survey results, these
opinions about senior leaders, are a reflection on your first
year of leadership? Can you speak to that?
Ms. Kiko. Well, I would like to say that I didn't have the
full year, because I had only been in the office at the time
for five months when the survey was taken. But I'll take full
responsibility for those surveys. And I want to do everything
in my power to make sure that those scores improve.
I have a chart here that I have been working from on a
regular basis that has a list of all of the 19 challenge
questions that I have before me in my Federal Employee
Viewpoint Survey, and each one of those problem questions I
have attempted to address through some effort by employee
engagement in my office and in my agency. And so I'm very aware
of those scores and I'm doing everything in my power to improve
those scores.
Mr. Sarbanes. Mr. Chairman, I have a letter here from Dr.
Todd Dickey, who is the assistant professor of public
administration and international affairs at Syracuse
University, that was addressed to you, which analyses these
results. And I ask unanimous consent to enter that into the
record.
Mr. Connolly. Without objection.
Mr. Sarbanes. Chairman Kiko, getting to this question of
doing what you can to get to the bottom of the survey results,
I appreciate that. The results were so disastrous that the
deputy general counsel took it upon herself in March, I gather,
to issue a followup survey to the Office of General Counsel and
regional office staff to try to figure out why the employment
engagement is as low as it is. And did you have anything to do
with the deputy general counsel's initiative in doing that?
Ms. Kiko. Well, I had something to do with it in that once
we get scores that reflect that there had been a significant
drop, we look at the questions that have a negative 35 percent
or higher, and those questions are then determined to see what
corrective action plan we are taking as an agency, and we need
to report that to both OPM and OMB. And in that process we are
required to determine which entity of the agency is in the
lowest percentile and then find that corrective action plan.
Mr. Sarbanes. I guess what I'm asking is, did you say, good
grief, look at these results, we need to get to the bottom of
it, we need an initiative to reach out inside the agency and
learn more and kind of spearhead trying to get to the bottom of
this and make the changes that needed to be made to address it,
or was that an initiative that came from the deputy general
counsel?
Ms. Kiko. Well, because the general counsel's office was
the lowest scoring entity in the agency, I sat and had a
conversation with the deputy general counsel and said that this
is the area that we need to improve. We're going to do it for
the whole agency, but we have to specifically do a corrective
action plan for this. And she said she would take care of it,
and we were going to make sure that those scores were improved
for the future.
Mr. Sarbanes. So the committee, I know, has asked for the
results of the latest survey that came in, and we asked that--
we said you can go ahead and redact any personally identifiable
information so the responses would be anonymous and so forth.
But the staff, your staff, hasn't provided that so far,
citing confidentiality concerns, even though I think most
employees would understand that confidentiality means that
their managers will not be able to connect survey responses to
individuals, that is an obvious understanding, but it doesn't
mean that only you and other management will see the results,
especially given the crisis level when it comes to people's
feelings about what's going on inside the Authority.
You can send a signal right now, Chairman Kiko, to the
employees of FLRA that you value their opinions so much that
you will share them with the Oversight Committee. You have the
authority to share those results right now with Congress. And I
want to ask you if you will do that.
Ms. Kiko. Well, it is my understanding, and I have offered
to the deputy general counsel that I would follow whatever
decision she and the solicitor made with respect to the release
of those documents, it is my understanding that they were held
as deliberative process in the agency, as the agency is trying
to figure out how best to get to the bottom of these scores.
When those apparently--I have never seen the--I have not
seen the survey, nor have I seen any results. I have not seen
the email that went out asking for the survey. But I honored--I
stand by my solicitor's opinion that this is a deliberative
process, whereas the agency is attempting to understand the
process, and I stand by that decision.
Mr. Sarbanes. Well, I'm out of time, so I'm going to have
to yield my time back. But I don't see why the deliberative
process you're alluding to can't happen simultaneously with
your providing the information that we're asking for. And if
you do that, I think that would send the right kind of signal.
And if you don't do that, I think it sends the wrong signal.
With that, I yield back.
Mr. Connolly. I thank the gentleman from Maryland.
And, Mr. Lynch, from Massachusetts, thank you for your
patience, and we're going to interupt your five minutes very
flexibly.
Mr. Lynch. Thank you very much, Mr. Chairman.
As a matter of just housekeeping, I have a number of
submissions here I would like to make. I'd like to ask for
unanimous consent to enter into the record four letters that
are opposed to the regional office closures. One is a letter
from Members of Congress to the House Appropriations requesting
that no funds be used to implement the FLRA's consolidation
plan in Dallas and in Boston.
Mr. Connolly. So ordered.
Mr. Lynch. Thank you.
One is a letter from 13 United States Senators to Chairman
Kiko basically asking for the same result.
Mr. Connolly. So ordered.
Mr. Lynch. Third is a letter from the National Air Traffic
Control Association, which basically asked for the same result.
Mr. Connolly. So ordered.
Mr. Lynch. And also a letter from the AFL-CIO and about 30
affiliated unions asking that the consolidation not be----
Mr. Connolly. Without objection, so ordered.
Mr. Lynch. Thank you, Mr. Chairman.
So I'm trying to get this right. You say that you have no
anti-union bias, and I'll just have to take that at face value.
So you come into your position and the first thing you do
is you reach back 40 years, basically 40 years of precedent, to
overturn a decision that the result of which strips your
employees from union representation so that they cannot
collectively bargain, they cannot collectively represent each
other, they have to go up against the agency one individual at
a time.
Is that correct?
Ms. Kiko. Well, I did make the decision to no longer
recognize the Union of Authority Employees----
Mr. Lynch. Right. So you stripped them of their collective
bargaining rights. That's what you did, right?
Ms. Kiko. Well, the statute doesn't provide them collective
bargaining rights. But I did----
Mr. Lynch. No, but this is what you did, though. You know,
you can say the statute did it, but the statute didn't do it
for 40 years until you got there. So you're the secret sauce
that made this stuff happen, right? Okay.
Ms. Kiko. Yes.
Mr. Lynch. So you basically did that.
I looked at the previous decisions, and it says that--it
says that an individual in the agency cannot be represented
collectively if that union also represents other unions that
are either associated or affiliated. So it doesn't say that
they can't have any representation, it basically says that they
can't have representation that would invite a conflict of
interest.
And as a legislator, it says: Employees engaged in
administrating--administering, excuse me--a labor-management
relation law or this Order . . . shall not be represented by a
labor organization which also represents other groups of
employees under law or this Order, or which is affiliated
directly or indirectly with an organization.
So they're trying to get at conflict of interest among your
employees, not--or the unions representing your employees.
And if that were not clear enough, Representative Udall,
who at the time proposed this language--he proposed this
language. So it's not like you have to do a deep interpretation
word by word. He tells you. He tells you why he offered the
legislation.
In this particular section he says that subsection (c) of
the substitute provides that any employee who is engaged in
administrating any provision of law relating to labor-
management relations may not be represented by a labor
organization which represents other individuals to whom such
provisions apply, or which is affiliated directly or
indirectly.
And then he goes further and he says: This provision, which
is not found in the report at title VII, is intended to help
prevent conflict of interest and appearance of conflict of
interest.
So that's the purpose. So in decertifying this union,
basically, rejecting this union, stripping your employees of
the ability to bargain collectively, are you saying that
they're not entitled to any representation or representation
that also has this conflict of interest that Representative
Udall pointed out is a possibility?
Ms. Kiko. I look to the Section 7112(b) of the statute,
which says that there shall be no unit determined to be
appropriate if it includes an employee engaged in the
administration of the provisions of this chapter. I do believe
that that is controlling in this situation.
The section that you're referring to, which is section (c),
an employee who is engaged in administering any provision of
law relating to labor management relations may not be
represented by a labor organization, I would think that that
referred to people who are not administering this particular
chapter, such as the National Labor Relations Board. There's
some legislative history that refers to the Federal Election
Commission not having unions that also were lobbying for
particular results of the election.
Mr. Lynch. But the overriding interest in government and in
the public is to allow employees to be represented by unions.
Do you----
Ms. Kiko. I agree.
Mr. Lynch. Okay. So you would agree with that.
Ms. Kiko. I would agree with that, yes.
Mr. Lynch. So there's an overriding wish or directive or
mission here to provide employees with representation?
Ms. Kiko. That's correct.
Mr. Lynch. And you're coming up with this one instance for
your employees where they are severed from that right, and your
reasoning is that they are administrating this law and
therefore there might be conflict of interest?
Ms. Kiko. I'm not exactly saying why the statute was
written the way it was.
Mr. Lynch. Or you're not giving a reason.
Ms. Kiko. I do believe that the statute specifically
excludes the FLRA from collective bargaining. Yes, I do.
Mr. Connolly. Would my friend yield just for a second?
Mr. Lynch. Sure.
Mr. Connolly. Just an observation to add to your point. As
I indicated earlier in my questioning, that would be an
interesting and maybe even cogent point if we were looking at a
brand new law.
Mr. Lynch. Right.
Mr. Connolly. But Chairman Kiko is the first Chairman ever
to interpret the law the way she has chosen to interpret it,
and I think that is important in context.
I thank my friend for yielding.
Mr. Lynch. Yes, if I could courteously reclaim my time.
Here is the problem. Your interpretation leaves your
employees with zero representation, no rights, no recourse.
Under Taft-Hartley they are stripped of the right to strike.
Under your interpretation, under civil service law, they don't
have a right to strike, they're stripped of that. They don't
have rights to arbitration. They don't have any rights to
collectively, you know, group and bargain.
So under your severe interpretation, we get a result that
is clearly not intended by Congress. You said yourself the idea
is to make sure that employees have the right to be
represented. That's where you believe, you said you believed
that the overriding interest is to have people represented. And
you have 40 years of precedents to look back upon where those
employees had that protection.
So you believe in that. They have the right. It's in the
public interest. They had it for 40 years. But you come up with
this construction that is new and unique and totally different
that leaves your employees in a position where you agree they
shouldn't be.
Do you have any--I mean, where's the underlying, you know,
basis for that. What's the public service that's being provided
or the public mission that's being completed here if you
believe, as you say, that they should have representation?
Ms. Kiko. Well, I believe that the way the statute was
worded--and I did not write the statute, but I attempted to----
Mr. Lynch. No, no, but we have an opinion of someone who
did.
Ms. Kiko. No, I do.
Mr. Lynch. I just read you what Mr. Udall said. And his
interpretation is different than yours, and he wrote the bill.
He wrote it. He's not a stranger. He wrote the bill, said what
it means, and you've come up with a different--after 40 years,
you've come up with a different interpretation. I do have to
say, I got to go with Mr. Udall on this since he wrote it.
Ms. Kiko. Okay.
Mr. Lynch. You know? And the end result is, you leave your
employees with no protections at all. You strip them of their
rights. And I cannot believe that the source of this is not
anti-union bias. I just cannot believe that.
Let me ask you a closing question. Do you agree that you
don't have the right to issue advisory opinions?
Ms. Kiko. Excuse me?
Mr. Lynch. Advisory opinions. Do you have the right--do you
believe your agency has the right to issue----
Ms. Kiko. We do not issue advisory opinions.
Mr. Lynch. Have you issued advisory opinions?
Ms. Kiko. Not according to what I would say, no, absolutely
not.
Mr. Lynch. Okay. I'd like to get into this, but my time is
expired.
I'll yield back.
Mr. Connolly. I thank my friend from Massachusetts. What a
cogent point about the author of the law having a certain
opinion. I thank my friend for reminding us of that.
I now call on the gentleman from Maryland, our good friend
Mr. Raskin.
Mr. Raskin. Mr. Chairman, thank you very much.
And, Chairman Kiko, delighted to be with you today.
You're making some history also in terms of the
unprecedented reversal of arbitrator awards in your tenure at
the FLRA.
Tell me--well, let me--first of all, I'll give you my sense
of the role of the arbitrator and you tell me if you agree with
this or not.
The Federal courts have always said that they're obligated
to give deference to arbitrator awards, and this follows a
series of rulings in the U.S. Supreme Court in the so-called
Steelworkers Trilogy, which was handed down in 1960. And there
the court stated famously, and I quote: ``The question of
interpretation of the collective bargaining agreement is a
question for the arbitrator, and the courts have no business
overruling his construction of the contract.''
And that principle that the arbitrator does the
interpretation and the construction of the collective
bargaining agreement is standard boilerplate concept unless you
get some interpretation that is contrary to law or regulation,
which, of course, would bind an arbitrator in any, you know,
appellate review.
Is that generally your sense of what should take place?
Ms. Kiko. The arbitrator does get a significant amount of
deference in an arbitration award, yes.
Mr. Raskin. Okay.
Now, there's an article written recently by a professor Dr.
Helburn called ``The Trump FLRA: Fair or Foul?'' And, Mr.
Chairman, with your permission, I'd like to submit it to the
record.
Mr. Connolly. Without objection.
Mr. Raskin. In there, there's a fascinating table on page 6
which shows the number of arbitration awards that were set
aside under President Bush's FLRA and under President Obama's
FLRA and then under the Trump FLRA under your leadership. And,
amazingly, under both the Bush and the Obama FLRAs there were
eight arbitrator awards that were set aside, and in both cases
that was for 26.7 percent of the overall awards.
Under your FLRA, the Trump FLRA, there are 23 arbitrator
awards set aside for a total of 76.7 percent. In other words,
three-quarters of the arbitrator awards were set aside and
reversed by the board, by the authority in these cases, and a
disproportionate number of those were--a vastly
disproportionate number were when there was a pro-union ruling
by the arbitrator.
So how can you explain that tremendous disparity in what's
taking place in your FLRA and what took place under Bush and
under Obama?
Ms. Kiko. Well, I've seen some of those statistics and I'm
not sure I agree with all of them.
But I think what I do when I look at a case is I look at
the decision, the facts in front of me and the case law, and
also all of the facts and the law, and each case I look at, I
look at specifically before me. I don't look at what I did
before or how many times I've done it. I don't keep a scorecard
on that.
Mr. Raskin. I got you. You just do an ordinary de novo
review in each case?
Ms. Kiko. No, I do a deference to the arbitrator. But, as
you said, if the arbitrator has violated contrary to law or
regulation, we would certainly look at that. We'd look under
other opportunities of bias, denying of a fair hearing,
exceeded its authority, failing to draw its essence from the
contract.
So there are certain areas where we do have to look at
whether the arbitrator did, in fact, go outside of its
authority.
Mr. Raskin. Well, most of these arbitrators are pretty
professional folks who specialize in doing this. Most of them
don't make, simplistic legal errors.
But what are the kinds of legal errors that you've found
that have justified overruling the vast majority of arbitration
decisions and awards?
Ms. Kiko. Well, I'm not--I don't have a recollection of
each of the cases in front of me, but I do have a couple of
maybe examples that I could show you where I felt that they
were--had gone beyond their authority.
And one is a case about the mercy ship that travels around
to give health benefits to countries, where the arbitrator
overruled a decision of the captain of the ship that the
captain had made for the benefit of the employees on the ship
or the team on the ship.
I've also seen where an arbitrator overruled an agency on
its own security policies as to who could or could not get a
personal--a PIV card.
I feel that some of those cases were examples of where an
arbitrator had exceeded their authority.
Mr. Raskin. Okay. Just one final question, if I may. This
is about an apparent anti-union bias surfacing in your decision
to render advisory opinions.
I understand there's a regulation providing that the
Authority and general counsel will not issue advisory opinions,
and yet last year the Authority issued two advisory opinions
and, therefore, violated its own rule to do so. The case
numbers were 70 FLRA 452 and 70 FLRA 465.
Why did you make a decision to issue advisory opinions?
Ms. Kiko. Well, I don't agree that they were advisory
opinions. I do believe that the dissent in those decisions
characterized them as advisory positions, but I do not agree
with that.
Mr. Raskin. Well, in each case one of the parties had
withdrawn its petition for review making the matter moot, and
then when you proceeded to render an opinion it was by
definition advisory. Now isn't that right?
Ms. Kiko. I believe that our decisions speak for themselves
and I don't really believe it's appropriate for me to engage in
an analysis of why I reached the decision I did.
Mr. Raskin. But in other words, you think it would be
acceptable practice to render a decision in a moot case?
Ms. Kiko. I did not issue a decision in a moot case.
Mr. Raskin. Okay. Mr. Chairman, I yield back. Thank you.
Mr. Connolly. I thank the gentleman. I know he's chairing
another subcommittee hearing, so thank you for taking time to
join us here today.
Are there any additional questions? If not, there is--I
want to ask unanimous consent to insert in the record the
congressional testimony for this hearing from the American
Federation of Government Employees. And there may be additional
items for the record.
Mr. Connolly. We have 5 additional legislative days within
which to submit such additional material or additional written
questions for the witness, which will be forwarded through my
office to her for responses.
I want to thank our witness for coming today and trying to
be responsive to our concerns and questions. And hopefully we
can look for remedy to some of the concerns that have been
raised here today either through policy changes or legislation.
If there are additional questions, I'd ask the witness to
respond as promptly as you are able. Again, thank you for
coming here today.
Thank all my colleagues for participating.
We are adjourned.
Ms. Kiko. Thank you, sir.
[Whereupon, at 3:58 p.m., the subcommittee was adjourned.]
[all]