AFGE argues members of panel must be Senate-confirmed.

AFGE argues members of panel must be Senate-confirmed. By gary718 / Shutterstock.com

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New Lawsuit Argues Impasses Panel's Recent Decisions Are Illegitimate

Union argues the Federal Service Impasses Panel must have all seven members in order to issue decisions, and that panel appointees must be confirmed by the Senate.

The nation’s largest federal employee union this week launched the latest salvo in the legal fight over collective bargaining at federal agencies, challenging the authority of the board tasked with settling disputes between labor groups and agencies in contract negotiations.

The American Federation of Government Employees said in a lawsuit Monday in U.S. District Court for the District of Columbia that the Federal Service Impasses Panel’s recent decisions all have been illegitimate for two reasons: the panel does not have a full cadre of members, and the statute establishing the panel is unconstitutional because it does not require Senate confirmation for appointees.

In 2017, President Trump dismissed all seven sitting members of the impasses panel and replaced them with new appointees, a common happening after a presidential transition. But when the terms of three members—Jonathan Riches, F. Vincent Vernuccio and Donald Todd—expired in January 2019, Trump only reappointed Riches and Vernuccio, leaving the panel with six members.

In its lawsuit, AFGE argued that the statute does not allow the impasses panel to operate unless it has a full seven members. Key to the union’s logic is the fact that the statute governing labor-management relations contains a provision authorizing actions by a partially appointed Federal Labor Relations Authority, but is silent on the impasses panel operating without all of its members.

“The statute expressly provides, with respect to the [FLRA’s] ability to use its powers, that ‘a vacancy in the authority shall not impair the right of the remaining members to exercise all of the powers of the authority,’” AFGE wrote. “[The] statute also treats the [impasses] panel differently from the authority in two key respects. First, the statute provides that ‘the panel shall be composed of a chairman and at least six other members, who shall be appointed by the president,’ without the advice and consent of the Senate . . . The second key respect in which the statute treats the panel differently from the authority is that the statute contains no provision that grants the panel or its members the ability to exercise any of the panel’s powers in the event of a vacancy.”

Additionally, the union argued that the provision of the law allowing impasses panel members to be appointed without Senate confirmation violates the Appointments Clause of the Constitution.

Under the Appointments Clause, there are two classifications of political appointees: principal officers, who require the advice and consent of the Senate, and inferior officers, who do not. Although the Constitution does not clarify the exact parameters of these categories, case law suggests that inferior officers typically can be removed by an executive branch official other than the president.

The union argued that because impasses panel members can only be removed by the president, they are principal officers, and require Senate confirmation.

“Panel members exercise significant authority pursuant to the laws of the United States, inasmuch as they issue final and binding decisions, are not subject to direct supervision, and have the power to hold hearings, take testimony and issue subpoenas,” AFGE wrote. “Panel members are therefore principal officers of the United States.”

The impasses panel has received increased scrutiny in recent months. Federal unions have accused agencies of engaging in bad-faith “box checking” collective bargaining in order to rush to the panel, which has issued a number of largely pro-management decisions. An appropriations bill passed by the House in June contains a provision effectively blocking implementation of any impasses panel-decided union contract retroactive to April 30.