Federal Employee Union Sues Impasses Panel, Calls Its Appointment ‘Unlawful’

The nation’s largest federal employee union sued the Trump administration last week seeking to remove the membership of a board tasked with resolving union contract negotiation impasses and to nullify its recent decisions, arguing the body has been improperly appointed and filled with non-expert partisans.

The American Federation of Government Employees’ National Veterans Affairs Council filed the lawsuit against the Federal Service Impasses Panel in U.S. District Court for the District of Columbia on March 27. In some respects, the legal challenge mirrors similar pending lawsuits, which argued that given the impasses panel’s authority and lack of a Senate-confirmed supervisor, the members’ selection to the panel violates the Appointments Clause of the Constitution.

This latest lawsuit charts new territory in that it argues that President Trump’s appointees to the impasses panel violate the law that established the body, which requires it to be a “neutral arbiter.”

“Given their enormous power, panel members must remain scrupulously neutral,” AFGE wrote. “Indeed, Congress has circumscribed the requirements for panel membership, requiring that members be appointed based solely on their ‘fitness’ to perform the duties of the office, and that they be ‘familiar with government operations and knowledgeable in labor-management relations.”

The union said that the current membership of the impasses panel is made up almost entirely of anti-labor advocates. David Osborne runs a nonprofit that provides legal services to people “hurt by public sector union officials,” while Jonathan Riches pursues “public union and pension reform” litigation for the conservative Goldwater Institute.

“Mr. Riches has continued to serve as counsel in litigation challenging public employee unions while serving as a member of the panel,” AFGE wrote.

Additionally, the union said that few members have any experience in labor-management arbitration, mediation or other relevant dispute resolution systems. 

“Few, if any, of the current panel members meet this criteria,” AFGE wrote. “On information and belief, not a single member of the panel has a background, training, certification or credential in arbitration or mediation. Moreover, at least four members have blatant conflicts of interest that disqualify them from meeting the statutory fitness requirements for service on the panel.”

AFGE argued that the impasses panel’s current make-up creates an inherent bias that ultimately violates union members’ due process rights under the Fifth Amendment of the Constitution, noting that in some cases, the panel has ignored both the union and agency’s proposals in favor of a more draconian anti-worker decision.

“This panel has also acted in clear disregard of its job as a neutral arbiter and imposed more extreme positions than those taken by either party,” the union wrote. “For example, in a decision concerning the percentage of official time allotted to a local union president, the union requested a schedule of three days per week and the agency countered with two days per week. The panel determined that ‘neither party’s proposal is warranted’ and, engaging in its own analysis of the union’s workload, imposed its own schedule of one day per week.”

Last November, the White House published a memo delegating the president’s authority to fire members of the impasses panel to the Federal Labor Relations Authority, in an apparent effort to blunt the growing lawsuits over how panel members are appointed. But on Tuesday, the FLRA declined to issue a stay in an impasse case between the Social Security Administration and the Association of Administrative Law Judges, claiming it may only intervene to stay impasse panel cases under narrow circumstances.

“The union is asking the [FLRA] to stay further [impasses] panel proceedings ‘until such time as the [FLRA] rules on the union’s objections’ regarding the panel’s jurisdiction,” the FLRA wrote. “But, as noted, panel orders are not directly reviewable by the authority. It necessarily follows that we cannot stay further proceedings by the panel pending a ruling on objections that we are not empowered to make.”

This story has been corrected to clarify that the FLRA may issue stays in impasse panel cases in narrow circumstances.