Impasses Panel, Union Debate Appellate Court Decision’s Impact on Appointments Challenge

Attorneys for federal employee unions and the Federal Service Impasses Panel are again trading barbs over whether a tangentially connected court decision is relevant to unions’ contention that members of the panel should be subject to Senate confirmation.

Unions have filed multiple lawsuits against the impasses panel, which presides over collective bargaining disputes between labor organizations and federal agencies, arguing that because the panel has no direct supervision and parties cannot directly appeal its decisions, appointees should go through the Senate confirmation process in accordance with the Constitution’s Appointments Clause.

In one of those cases, the panel and the American Federation of Government Employees’ National Veterans Affairs Council have been waiting for a decision from U.S. District Judge Carl Nichols since they held a motions hearing in June.

Last week, attorneys for the impasses panel filed a “notice of supplemental authority” highlighting a recent decision by a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit finding that the Federal Labor Relations Authority acted properly in reviewing an impasses panel decision in the context of an unfair labor practice case. In that case, the Defense Department’s Domestic Dependent Elementary and Secondary Schools refused to implement a contract imposed by the impasses panel, leading to an unfair labor practice complaint by the union.

“The D.C. Circuit’s [Antilles Consolidated Education Association v. FLRA] decision . . . underscores the defendants’ argument that district courts do not have subject-matter jurisdiction over challenges to panel actions and decisions,” wrote FLRA and FSIP attorney Noah Peters. “It reaffirmed that parties may obtain meaningful review of FSIP orders by following the federal service labor-management relation statute’s comprehensive review scheme, which channels all challenges to panel orders through proceedings before the authority and then a court of appeals.”

The government attorneys also highlighted that the circuit court described the impasses panel as a “subordinate entity within the FLRA” that is subject to the FLRA’s “leadership in establishing policies and guidance relating to matters involving federal-sector collective bargaining.” The language appears to endorse the government’s argument that the impasses panel has Senate-confirmed direct supervisors in the membership of the FLRA.

But attorneys for AFGE argued that the circuit court’s decision does not actually aid the government’s cause, noting that the decision “merely cited the usual route in which parties obtain review of panel decisions,” without passing judgment on whether that route constitutes “meaningful” review.

 “The FLRA’s authority to review panel decisions after an unfair labor practice charge has been filed, accepted, and appealed is not at issue here,” the union attorneys wrote. “[As] we noted in our briefs, the prospect of judicial review is uncertain, and a union that violates a panel order in an attempt to obtain judicial review faces consequences that an agency disavowing a contract does not.”

The union also argued that the circuit court’s decision did not, in fact, affirm that the FLRA serves as the direct supervisor to the impasses panel and does not weigh in at all on the question of whether impasses panel members are principal officers under the Constitution.

“Nothing in ACEA suggests that the FLRA’s review extends beyond the element of the unfair labor practice charge to include the composition of the panel itself,” the attorneys wrote. “Moreover, the court’s dicta characterizing the panel as subordinate to the authority and subject to the authority’s general ‘leadership’ did not address the question whether panel members are principal officers . . . Because the impasses panel exercises significant authority unchecked by the supervision of any Senate-confirmed officials, its composition violates the Appointments Clause.”