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Trump Agency Protecting Federal Unions Wants to Kill Its Own

Jan. 16, 2019, 11:03 AM

The head of a tiny federal agency that enforces government workers’ right to unionize says her own employees can’t join a union.

The Federal Labor Relations Authority no longer will negotiate with the union that has represented agency employees for nearly 40 years, Chairwoman Colleen Kiko (R) recently announced in a letter obtained by Bloomberg Law. Kiko says FLRA workers aren’t covered by the law, which generally gives federal employees the right to form unions and bargain collectively.

“The FLRA will not recognize the UAE, or any other labor organization, as an exclusive representative of the employees,” Kiko told the leaders of the Union of Authority Employees and the workers it represents.

The union battle comes as President Donald Trump has pushed executive orders to limit government workers’ union rights and other protections. That includes at agencies such as the Education Department and the National Labor Relations Board, which have been locked in battles with unions representing their workers. Trump also hasn’t nominated an FLRA general counsel, leaving the agency for two years without anyone to prosecute unfair labor practice claims on behalf of federal employees, unions, and agencies.

“People already have low morale because we’re not allowed to do half of our jobs,” a current FLRA employee, who spoke on condition of anonymity because of fear of retaliation, told Bloomberg Law. “Now, knowing what we do every day, it’s more upsetting that our agency won’t recognize our own union.”

Trump in May issued a trio of executive orders making it easier to fire federal workers, requiring agencies to take another look at collective bargaining agreements, and limiting the amount of work time government employees can spend on union matters. A federal judge blocked significant portions of those moves, a decision that’s currently on appeal.

Kiko and agency spokesmen didn’t immediately respond to Bloomberg Law’s requests for comments. The FLRA is largely shuttered as part of the partial government shutdown.

The FLRA hears labor-management disputes involving some 2.1 million non-postal federal employees. The Union of Authority Employees represents roughly 50 FLRA employees, mostly lawyers.

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Kiko in the Dec. 21 letter said she “heartily agrees” with the premise of the law securing collective bargaining rights for government workers, namely that it “safeguards the public interest” by helping to ensure labor peace. But she also said lawmakers didn’t intend for it to cover FLRA employees.

Congress in 1978 specifically excluded the FLRA, along with a smattering of agencies that includes the Central Intelligence Agency and Federal Bureau of Investigation, when it passed the law.

“To me it was always you don’t want people overseeing the system if they’re in a place to benefit from that oversight,” William Wiley, a former FLRA general counsel, told Bloomberg Law.

Wiley and others say the agency and its employees created a helpful workaround in which the FLRA voluntarily recognized the Union of Authority Employees as the exclusive collective bargaining organization. The union didn’t have the right to pursue unfair labor practice complaints through the FLRA, but it was authorized to take certain disputes to nonbinding arbitration. The only problem is that the union had no way to enforce those decisions if agency leadership decided not to abide by them.

“It’s like me recognizing my kids in a union,” Wiley said. “I can take it away from them at any time.”

The union in recent years successfully negotiated agreements for the FLRA to cover employees’ bar membership fees and to update performance review standards, according to employees. It also served as something of a safety net, ensuring that employees had some form of representation on the job.

The Justice Department in 1980 issued an advisory opinion affirming the FLRA’s authority to recognize the union. No one argues that the agency is required by law to play ball with the group. But Ernest DuBester, the only Democrat on the three-member FLRA, told Bloomberg Law that doing so is a matter of “modeling good behavior.”

“This is not a question about whether we are mandated to recognize the union,” DuBester said. “But that’s a different question than, as the federal agency charged with overseeing labor management relations, why you would say we’re not going to recognize the union.”

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editors responsible for this story: Cynthia Harasty at charasty@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com