[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

                               __________

      Printed for the use of the Committee on Oversight and Reform
      
      
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]      


                  Available on: http://www.govinfo.gov
                     http://www.house.oversight.gov
                       http://www.docs.house.gov
                       
                              __________
                               

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
36-830 PDF                  WASHINGTON : 2019                     
          
--------------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected]                                
                       
                       
                   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

                              ----------                              
                                                                   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

                              ----------                              


                         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]