In a letter addressed to President Biden, the Federal Workers Alliance is urging the President to “send immediately to the Senate a nomination for FLRA Member to accompany the nomination of Ernest W. DeBester as FLRA Chairman.”
See the full text of the letter below, or download the pdf.
Dear President Biden:
We, the undersigned, write as members of the Federal Workers Alliance (FWA), an alliance of more than 30 national unions that collectively represent more than 300,000 federal workers across the country, to request that the Biden-Harris Administration take urgent action to restore order and functionality to the Federal Labor Relations Board (FLRA). It is our request that the Biden Harris Administration send immediately to the Senate a nomination for FLRA Member to accompany the nomination of Ernest W. DuBester as FLRA Chairman.
In passing the Civil Service Reform Act, Congress made the specific finding that “labor organizations and collective bargaining in the civil service are in the public interest.” In that vein, the Federal Labor Relations Authority is tasked with “carrying out the purpose of [Federal Service Labor Management Relations Statute.]” While Kiko and Abbott remain on the FLRA, the Authority continues to act in a manner that undermines the law promoting collective bargaining. Their judgment on FLRA cases continues to produce decisions that are inherently biased against labor and the collective bargaining process. Their decisions are clearly aimed at diminishing the Federal Service Labor-Management Relations Statute meant to protect the proper balance of workplace labor rights.
The failure of Abbot and Kiko to adhere to sound legal reasoning has become even more apparent as cases have been reviewed by the U.S. Court of Appeals for the D.C. Circuit. A good example is the case National Treasury Employees Union v. FLRA, where the Court found that the FLRA’s finding that NTEU’s proposal was not negotiable did not constitute “reasoned decision-making.” This was a unanimous decision that included a panel existing of two republican appointed judges, including a Trump nominee. Telework discussions and negotiations will be vitally important as the government seeks to reopen safely in the midst of the Delta variant of COVID-19. The current makeup of the FLRA will be a detriment to that process.
Furthermore, U.S. Representative Gerald E. Connolly, Chairman of the Subcommittee on Government Operations, directed a stern letter of reprimand to then-Chairman Kiko, criticizing three “radical policy decisions” that “discarded decades of labor-management relations precedent and violated their own rules to achieve the goal of limiting collective bargaining” for nearly 1.2 million federal employees. See Attachment, November 30, 2020 Letter.
If the goal is to protect collective bargaining rights to federal employees, and to promote the collective bargaining process, the lack of respect that Kiko and Abbot have shown for precedent and the rule of law makes them wholly unqualified to serve on the FLRA. The manufactured legal reasoning cited in decisions by Kiko and Abbott have resulted in thousands of employees being stripped of legitimate workplace rights and union protections. These decisions have severely restricted employees’ free exercise of rights guaranteed by the Federal Service Labor-Management Relations Statute — even on the most fundamental of things — such as bargaining over working conditions.
The current majority provided by Kiko and Abbott have vacated decades of workable precedent. It will take years, if not decades, to rebuild these frameworks, and some of the damage may be permanent. In 2021 alone, poor decisions and concurrences have done considerable harm, such as radically expanding the applicability of 7116(d) bar on grievances. Any delay in changing the current makeup of the FLRA indulges the risk of further damage.
On a separate but related note, we appreciate the Biden-Harris Administration’s decision to remove all members of the Federal Service Impasse Panel (FSIP) upon taking office in January. We believe it is time to appoint new members. Given that the appointments to FSIP do not require Senate confirmation, it is our hope that the Administration can move quickly to staff those positions with qualified, experienced personnel to begin again its important work to resolve impasses during collective bargaining. A growing FSIP backlog halts progress on critical workplace issues and leaves both employees and agencies in limbo as they await adjudication, potentially for years on end. This delay will likely negatively impact the ability of unions to eradicate the harmful effects of the executive orders issued by the Trump Administration.
In the interest of the welcomed and admirable commitment of the Biden-Harris Administration to bring respect and dignity into the workplace, we urge you to nominate new members to the FLRA and FSIP as quickly as possible. Doing so will provide relief from a disturbing precedent installed by the previous administration to diminish the systematic protections that administer fairness and effectiveness within the federal workforce.