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Trump’s Government Labor Pick Comes Accused of Union Violations

March 27, 2019, 7:53 PM

President Donald Trump’s pick for the top lawyer job at the agency that protects federal government workers’ union rights is part of a group accused of violating the labor rights of Health and Human Services Department employees.

The White House announced March 26 that Trump intends to nominate Catherine Bird, an HHS lawyer who oversees negotiations with the department’s employee union, to serve as the Federal Labor Relations Authority’s general counsel.

If confirmed by the Senate, she would be responsible for prosecuting unfair labor practice charges in cases involving government employees, unions, and agencies.

Bird’s nomination comes as the union representing HHS workers has filed unfair labor practice charges against the department, alleging that it forcefully pushed through changes to the union contract without bargaining. The charges are currently before an arbitrator, but similar allegations against other agencies are pending at the FLRA.

“While working in the HHS Office of General Counsel, Bird was directly involved in the agency’s bad faith bargaining last year,” National Treasury Employees Union President Tony Reardon told Bloomberg Law by email. “We have four national grievances now pending over the unfair labor practices of HHS, which together map out the agency’s illegal bargaining tactics and disregard for employee rights in nearly every step of the term bargaining process.”

A former FLRA official said it’s helpful to have someone with at least some government labor relations background in the general counsel position, even if it means that the person may not necessarily be viewed by everyone as neutral.

“It’s hard to find someone for that position that hasn’t been on one side or the other,” San Francisco-based attorney William Wiley told Bloomberg Law. Wiley was chief of staff to the FLRA general counsel in the George H.W. Bush administration. “It’s a positive that she’s had the real life recent experience,” Wiley said.

White House spokesman Judd Deere declined to comment. HHS spokeswoman Caitlin Oakley said the agency is taking lawful steps to improve operations, which came after the agency reached a bargaining impasse with the union. The Federal Service Impasses Panel is reviewing the dispute.

“HHS is working with employees and their union representation to improve the operations of the department with the aim of making the federal government a better place to work and better able to deliver the services to the American people,” Oakley told Bloomberg Law.

Meanwhile, the FLRA is facing a backlog of charges because it hasn’t had a Senate-confirmed general counsel since President Barack Obama appointee Julie Clark left in January 2017. That means there’s no one at the agency with the power to issue complaints when investigators say there’s good cause to believe that a government agency violated employees’ rights.

Government workers and unions can take unfair labor practice charges to the FLRA or an arbitrator. But the FLRA general counsel is the only agency official empowered to enforce arbitrator decisions.

Trump Orders Pending

Federal worker unions are fighting off attacks on other fronts. President Donald 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 judge later blocked significant portions of those orders, a decision that’s on appeal.

Union officials say government leaders are employing hard—and possibly illegal—bargaining tactics to push contract changes while the Trump executive orders remain tangled up in court.

The NTEU says HHS officials refused to bargain in good faith over a new contract, unfairly declared that the sides had reached an impasse, and then used that impasse to jam through a wide range of changes. The agency is trying to strip employees of telework and other alternative work arrangements and other rights under the previous collective bargaining agreement, the union says.

Bird, the principal deputy assistant secretary for administration, is the second ranking official in the office, behind Assistant Secretary for Administration Scott Rowell.

Allegations of similar tactics have been made against the Education Department, Veterans Affairs, and other agencies.

Charges Against Agencies Pile Up

Clark was temporarily replaced by Acting General Counsel Peter Sutton until November 2017. Career FLRA lawyers have been rotating in as the temporary deputy general counsel since then.

Once Trump officially nominates Bird for the job, he can also install a new acting general counsel while Bird goes through the confirmation process. The acting general counsel, unlike the deputy general counsel, has the authority to sign off on unfair labor practice complaints.

The FLRA has received more than 6,500 unfair labor practice charges from government workers and their unions in the two-plus years since it last had a Senate-confirmed general counsel, according to information obtained by Bloomberg Law.

Although investigators are continuing to review those charges, lawyers can’t file complaints to stop federal agencies from violating labor laws without someone in the general counsel’s office to sign off on them.

The FLRA typically issues complaints—essentially filing a lawsuit against a government employer—in about 200 cases a year. The complaint then goes before an administrative law judge and can be appealed by either side to the three-member FLRA panel. The agency issued at least 43 complaints in the 11 months that Sutton served as acting general counsel, according to agency data.

Another 3,300 cases are typically withdrawn or settled annually.

Unions and workers whose cases aren’t settled also have the option of going through private arbitration. But if a government agency refuses to abide by an arbitrator’s decision, it’s up to the FLRA general counsel to enforce the ruling.

FLRA employees themselves recently lost the ability to bargain collectively. Chairwoman Colleen Kiko (R) in December told the union that has represented agency employees for nearly 40 years that the FLRA will no longer negotiate with the group.

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

To contact the editors responsible for this story: Cathleen O'Connor Schoultz at cschoultz@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com