Among other things, the American Federation of Government Employees argues that the panel, currently composed of anti-labor activists, violates statutory requirements that it be impartial.
A union representing employees at the Veterans Affairs Department last week asked a federal court to step in and prevent the Federal Service Impasses Panel from issuing a decision in its collective bargaining dispute with the department.
The American Federation of Government Employees in March filed a lawsuit in the U.S. District Court for the District of Columbia challenging the constitutionality of the impasses panel’s makeup, arguing that given the panel’s powers, the Appointments Clause of the Constitution requires that nominees be confirmed by the Senate.
The crux of the lawsuit’s argument hinges on the fact that the impasses panel’s decisions are “final and not reviewable” by either the Federal Labor Relations Authority or the federal courts. Additionally, members of the impasses panel do not have a direct supervisor, answering only to the president. According to the union and other employee groups that have sued the panel in recent days, these circumstances mean panel members are principal officers under the Constitution, and thus cannot be appointed without consulting the Senate.
Last week, the union filed a motion for a preliminary injunction against the impasses panel, which is in the midst of receiving proposals from AFGE and the VA and said it could issue a decision on the parties’ next collective bargaining agreement as early as July.
In addition to the purely constitutional argument, AFGE argued that the Trump administration has violated the plain text of the law establishing the impasses panel, which requires that members be chosen solely based on their experience as neutral arbitrators in federal labor management relations. The current panel is made up largely of anti-labor activists, some of whom have continued to pursue litigation against labor unions while serving on the board.
“Beverly Schaffer, one of the original members of the first panel established following the passage of the [Civil Service Reform Act of 1978], noted that . . . ‘any attempt to politicize the Panel will likely result in a serious diminution of the panel’s effectiveness in resolving negotiation impasses and redound to the detriment of the labor-management relations program,’” the union stated. “Unfortunately, politicizing the panel is precisely what the present administration has done, to the predicted detriment of labor-management relations in the federal government.”
The union also sought to counter the administration’s argument that the court lacks jurisdiction to hear the case, and that instead labor groups seeking review must first channel their challenges through the Federal Labor Relations Authority.
“According to the government, the only way for a union to get judicial review is to refuse to negotiate or refuse to abide by an agreement imposed by the panel,” AFGE wrote. “At that point, the general counsel [of the FLRA] would have the discretion to bring an unfair labor practice charge against the union, which would be subject to review by the FLRA and subsequently the courts.”
According to the union, that method of review is lacking in a number of ways. First, there has not been a Senate-confirmed FLRA general counsel since 2017, and an agency could simply decline to pursue the complaint. Additionally, AFGE argued that the Supreme Court has frowned upon requiring plaintiffs to violate the law to press a claim.
“The Supreme Court ‘normally does not require plaintiffs to bet the farm . . . by violative action before testing the validity of the law,’” the union wrote. “The potential consequences of violating a bargaining agreement can be severe. If a union’s violation can be characterized as ‘instigating a strike, work stoppage or slowdown,’ the union risks decertification. The government has not explained precisely how a union should violate a panel order on an issue important enough to generate an unfair labor practice action while threading the needle to ensure that the consequences of its violation will not be catastrophic.”
If granted, the preliminary injunction would prevent the impasses panel from imposing a collective bargaining agreement on the VA and AFGE while the case can proceed. Ultimately, the union hopes that the court will rule that impasses panel members are principal officers requiring Senate confirmation, and render all of the current panel’s decisions null and void.