Labor law experts say a memo granting the Federal Labor Relations Authority the ability to fire members of the Federal Service Impasses Panel undermines the law establishing the two boards.
The Trump administration this week granted the Federal Labor Relations Authority the power to dismiss members of another board tasked with resolving labor-management disputes, in an apparent attempt to resolve constitutional complaints in multiple pending lawsuits.
But experts say the effort upends the law establishing both organizations, which intended them to be independent from one another.
On Tuesday, the White House published the memo delegating the president’s authority to fire members of the Federal Service Impasses Panel to the FLRA. Although both boards share support staff, they traditionally have been independent from one another, and they handle different types of disputes between federal agencies and employee unions.
“In exercising the authority delegated by this section, the FLRA shall consider the extent to which decisions of members of the FSIP are consistent with the requirements of [federal law], with particular attention to whether the decisions are consistent with the requirement of an effective and efficient government . . . in addition to any other factors that the FLRA may consider appropriate,” the memo states.
The change comes as the American Federation of Government Employees pursues a lawsuit challenging multiple impasse panel decisions in part on constitutional grounds. AFGE has argued that the way that panel members are appointed without Senate confirmation is unconstitutional, claiming that they are effectively “principal officers.”
The union points to the fact that the decisions issued by the impasses panel are considered final, binding and cannot be appealed in most instances, as well as the fact that members can only be removed by the president as evidence that they must go through the Senate confirmation process.
Tuesday’s memo appears to be an attempt to address that complaint, effectively making members of the impasse panel report to the FLRA, a board made up of appointees who face Senate confirmation. In a statement, AFGE National Secretary-Treasurer Everett Kelley said that the memo fails to adequately fix the underlying problem.
“The appointment process for the chair and members of the impasses panel is constitutionally flawed,” Kelley said. “The president’s memorandum, while clearly acknowledging the constitutional problem, cannot and does not fix it. The memorandum is really nothing more than a distraction and is not a substitute for Senate confirmation.”
Labor law experts who are not involved in the case said the memo could cause additional legal headaches for the administration, unrelated to how impasses panel members are appointed. Suzanne Summerlin, associate general counsel of the National Federation of Federal Employees, described the measure as “fundamentally inappropriate.”
“None of this makes sense,” she said. “It is diametrically opposed to the letter and the spirit of the law, and it’s not supported by the statute.”
Robert Tobias, director of business development for the Key Executive Leadership Program at American University and former president of the National Treasury Employees Union, said the law that establishes the FLRA and the impasses panel purposefully created an independent agency with three distinct and co-equal sets of officers. The FLRA adjudicates union and agency complaints against each other; the FLRA general counsel oversees the investigation and vetting of those complaints, and the impasses panel weighs in on disputes that arise during collective bargaining negotiations.
“The FLRA is an adversarial system, and that’s what it does,” Tobias said. “It’s an administrative law creation intended as a substitute for filing lawsuits. The FSIP, in contrast, is created to bring people together, without winners and losers per se, but in a collaborative method . . . The balance created by maintaining a sufficient separation [between the FLRA and the impasses panel] to bring the parties together would be destroyed if they were appointed or dismissed by members of the FLRA.”
Stripping impasses panel members of their independence from the FLRA could be a prelude to further power consolidation in that panel, Summerlin said.
“There’s nothing in the statute that would make the impasses panel susceptible to the whim of the authority in this particular way,” she said. “And then, if you extrapolate then that the White House is delegating its ability to terminate appointments in a way that is really inappropriate, it could then apply to the general counsel, despite the fact that there was a wall [between these officers] built into the statute.”