Obama’s merit board nominees have deep background in union law

The lawyers President Obama nominated to head the Merit Systems Protection Board have played significant roles in some of the major campaigns that federal employee unions have waged in recent years. But labor leaders also said Susan Grundmann, tapped to lead the board, and Anne Wagner, nominated to be Grundmann's deputy, would not automatically rule against management and likely would work within the parameters of legal precedent.

Grundmann, who graduated from American University and earned a law degree at Georgetown University, has been general counsel for the National Federation of Federal Employees since 2002. NFFE declined to comment on her nomination, citing the pending confirmation process. But Mark Roth, general counsel for the American Federation of Government Employees, said Grundmann shouldered a significant load at the union because she did not have sufficient support staff.

She took on major responsibilities outside NFFE as well. According to Matt Biggs, legislative director of the International Federation of Professional and Technical Engineers, Grundmann was chosen unanimously by the 36 unions that are part of the United Department of Defense Workers Coalition to head the organization's legal committee, and she handled some of the arguments for the group's lawsuit against the Pentagon's National Security Personnel System. She also was part of the negotiating team that met with the Homeland Security Department and the Office of Personnel Management during DHS' efforts to establish an alternative personnel system.

Biggs said Grundmann is "one of the foremost authorities in the labor community when it comes to federal labor law." He also emphasized her role as an effective advocate for federal workers and said she had earned the respect of the management teams with which she worked.

Wagner, a graduate of Notre Dame University and The George Washington University Law School, worked on a range of employee issues as an assistant general counsel at the American Federation of Government Employees, and as a member and former general counsel of the Government Accountability Office's Personnel Appeals Board. That organization is similar to the Merit Systems Protection Board and makes judgments on adverse actions and discrimination complaints, and in cases of prohibited personnel practices that occur within GAO. The general counsel investigates allegations filed by GAO employees and can represent them before the board if there is sufficient evidence that a violation occurred.

As general counsel to the Personnel Appeals Board, Wagner helped determine the ground rules for an election that led to the creation of GAO's first union, a local of the International Federation of Technical and Professional Engineers. She also led an investigation into the agency's decision to deny annual pay adjustments to analysts who received satisfactory ratings in 2006 and 2007 under a new pay system. That new personnel system was influential in the effort to form a union at GAO.

At AFGE, Wagner helped challenge a law forbidding federal employees from accepting fees for making speeches or writing articles on subjects unrelated to their government jobs. As a counsel on the case, Wagner argued that the rule was not tailored carefully enough to be a legitimate exception to the First Amendment, and the law eventually was overturned. She also argued that the Food Safety Inspection Service and the Agriculture Department needed to preserve an active role for food inspectors, and worked on one of the earliest cases challenging bidding preferences for Native American corporations, an issue that has resurfaced in recent debates over contracting reform.

AFGE's Roth said Wagner's experience would serve her well on the Merit Systems Protection Board. "I don't think I've ever used the term 'the perfect choice' before," he said. "But she has been groomed for this position, she has been trained for this position."

But Roth was quick to emphasize that despite the 20 years Wagner spent at AFGE, the union would not receive preferential treatment from her. And Roth said both nominees would have to navigate through a sea of precedents created by the federal circuit courts, to which the Merit Systems Protection Board must adhere. But members' decisions ultimately could become part of that precedent if they are upheld in court, he added.

"The fact that you have two folks who are brilliant legally, excellent writers and have their hearts in the right place can ultimately move that agency," Roth said. "I don't think anyone can expect a 180-degree change in direction, but there's a lot of room for more coherent decisions and different results where appropriate."