Labor Authority General Counsel Nominee Vows Impartiality, But Unions Cry Foul

President Trump’s pick to be general counsel at the Federal Labor Relations Authority told senators Tuesday that she would be impartial as she administers the federal labor relations statute, while federal employee unions insisted her track record in government suggests the opposite.

Catherine Bird was nominated in March to the long-vacant post, where she would be responsible for vetting unfair labor practice complaints ahead of sending them to the FLRA board for adjudication. She currently serves as principal deputy assistant secretary of Health and Human Services for administration.

Although Bird acknowledged that she has no formal experience practicing federal labor law, she cited her work on contract negotiations between HHS and the National Treasury Employees Union as a qualification for the position.

“I participated in term bargaining negotiations on behalf of management in discussions with NTEU,” Bird said. “This experience taught me the importance of an objective and impartial FLRA in ensuring labor negotiations proceed efficiently and effectively. This first-hand experience of the collective bargaining process has given me a keen understanding of the dynamics of the process, allowing me to understand it in a practical, not only theoretical manner.”

Federal employee unions cited that same experience to argue she should not be confirmed as FLRA general counsel. NTEU has a pending unfair labor practice charge against HHS over its handling of contract negotiations, alleging bad faith bargaining.

“Based on what our team observed at the HHS bargaining table, it was pretty clear that Catherine Bird has really no experience in federal sector collective bargaining and lacks what I say is a basic understanding of an agency’s collective bargaining obligations under the law,” NTEU National President Tony Reardon told Government Executive. “For example, she was completely unwilling to answer any questions about the HHS proposals, and wouldn’t engage in any meaningful discussion about the proposals . . . She would just repeat generic mantras like, ‘Well, look. This is just making the agency more efficient.’ ”

NTEU last year accused HHS of walking away from negotiations after two days of bargaining, and one day of mediation, in an effort to rush the process to the Federal Service Impasses Panel, which adjudicates disputes that arise in collective bargaining negotiations. Bird denied engaging in bad faith bargaining, although she did not entirely dispute the union’s timeline of events.

“I don’t agree with that characterization,” she said. “The collective bargaining had begun on that contract back in 2016, so there were multiple instances of bargaining. We had multiple days of negotiations, and HHS management thought it was important early on, because of the contentiousness, to bring in the [Federal Mediation and Conciliation Service] to help oversee these negotiations to reach agreement. Parties found themselves to be at impasse quickly, so we went to the FSIP.”

Sen. Kyrsten Sinema, D-Ariz., asked Bird about her commitment to federal labor law, given that the FSIP found several of HHS’ last best offers to be contrary to statute and case law in an April decision on the contract with NTEU. The FSIP nonetheless ruled mostly in the agency’s favor.

“In April of this year, the Federal Service Impasses [Panel] issued a decision on many disputed issues [between HHS and NTEU],” Sinema said. “In your policy questionnaire, you answered several questions by stating that you would be guided by statute, regulations and relevant case law. But the impasses panel found multiple places where the HHS management position didn’t follow federal labor relations statute, regulations and applicable case law.”

Bird responded: “My role in HHS management negotiations, and really my duty, was to represent management to the best of my ability at that negotiations table, which is what I did. My role and my duty as general counsel of the FLRA would be to be an impartial decision maker, and I can commit to looking at the facts of each case, apply the applicable rules and regulations to the individual facts of the case, and come to an impartial and a fair decision.”

In a letter to the Senate Homeland Security and Governmental Affairs Committee last week, the American Federation of Government Employees accused Bird of acting as an “unauthorized counsel” to management negotiators at the Veteran Affairs Department, advising negotiators despite not being part of the official bargaining team.

“[Bird] has provided unauthorized counsel to at least one other agency, the Department of Veterans Affairs, as they are currently engaged in negotiating a new collective bargaining agreement with AFGE,” wrote AFGE National President J. David Cox. “While the agency representatives removed her from the bargaining room when her presence was questioned, she remained on site at two significant intervals of bargaining and was observed providing direction to agency representatives . . . The agency told union officials Ms. Bird instructed the agency not to make any movement in negotiations.”

Asked by Sen. James Lankford, R-Okla., about these allegations, Bird acknowledged her role in contract negotiations at the VA.

“I provided brief support to the VA management team as somewhat of a consultant to them to provide experience and knowledge for a short period of time,” she said.

“OK, but not as an official VA negotiator as a VA representative?” Lankford asked.

“No, I was—there was a detail in place to the VA, but no, I was not officially a part of the VA bargaining team, just more of a consulting role,” Bird said.