Agency and union labor relations representatives have been wondering when President Trump would nominate a person to fill the position of General Counsel at the Federal Labor Relations Authority (FLRA). That nomination has now been submitted.
How Long Has GC Been Vacant?
The position of General Counsel (GC) at the FLRA is covered by the Federal Vacancies Reform Act (Vacancies Act).
Upon the resignation of the former General Counsel, Julia Clark, on January 20, 2017, Peter Sutton automatically became the Acting General Counsel as he was the Deputy General Counsel (a career position). He was the Acting GC until November 16, 2017—the statutory maximum under the Vacancies Act in the absence of a nominee to the General Counsel position.
Until a General Counsel of the FLRA has been confirmed, a complaint cannot move forward to a hearing before an Administrative Law Judge (ALJ).
The Office of General Counsel is the investigative and prosecutorial component of the agency. Catherine Bird has been nominated to fill this position but no action has been taken by the Senate on the nomination.
Ms. Bird currently serves as the Principal Deputy Assistant Secretary for Administration at the Department of Health and Human Services where she oversees components including Human Resources, Information Technology, Real Estate and Logistics, and Acquisition.
There cannot be a hearing on a case as the labor relations statute states the issuance of a complaint is reserved to the discretion of the General Counsel. 5 U.S.C. §§ 7104(f)(2)(B), 7118(a)(1).
The General Counsel rules on appeals from a Regional Director’s dismissal of a ULP charge. Since November 16, 2017, no ULP complaints or ULP appeal decisions have issued.
The appointment of Ms. Bird as the next General Counsel of the FLRA now resides with the Senate.
Number of Recommendations and Appeals on Hold
As of September 30, 2018, there were 142 ULP-complaint recommendations and 158 appeals awaiting review by a new General Counsel.
Despite the absence of a General Counsel, the FLRA has continued to provide other services to the federal labor relations community including timely investigative, adjudicatory, and other case-processing services.