Attorneys for a union challenging how members of the Federal Service Impasses Panel are appointed called recent changes to the Federal Labor Relations Authority website a “cynical” effort to influence the case.
Federal officials published a revised version of the Federal Labor Relations Authority organizational chart to its website late last month, in apparent response to a statement made by union lawyers during a hearing about the constitutionality of how members of a panel resolving collective bargaining disputes are appointed.
The Federal Service Impasses Panel is the target of multiple lawsuits as it increasingly has become the flashpoint in the Trump administration’s efforts to crack down on federal employee unions. The White House has stacked the panel with members who are openly hostile toward organized labor, and some have continued to pursue litigation against unions since their appointments.
The American Federation of Government Employees’ National Veterans Affairs Council is pursuing a lawsuit against the panel, arguing that given members’ power and lack of direct supervision—panel decisions are considered final can only be reviewed indirectly if a party refuses to abide by its ruling—they should be subject to Senate confirmation.
However, the Justice Department has argued that the panel is supervised by the members of the Federal Labor Relations Authority, because the authority may issue policy guidance that the impasses panel should follow in its deliberations. Last fall, President Trump sought to bolster that argument by delegating his authority to remove panel members to the FLRA.
At a motions hearing last month, AFGE attorneys said that argument doesn’t pass muster, in part because for decades, the FLRA has itself referred to the impasses panel as an independent entity, although they share the same career staff.
“If you look at the FLRA organizational chart, you see three boxes going across [for the general counsel, the FLRA and the impasses panel], and the authority constantly talks about the panel as an independent entity,” said attorney Matthew Collette. “Now, Congress may have not thought they weren’t creating principal officers, just as they thought in [SEC v. Lucia] that they weren’t creating officers at all, but the fact is Congress created a structure in which they are principal officers.”
Just five days after the hearing, Collette’s statement was no longer true. On June 29, the FLRA updated its organizational chart on its website, moving the impasses panel under the FLRA’s jurisdiction and then informed U.S. District Judge Carl Nichols of the change.
“The new chart accurately reflects that the Federal Service Impasses Panel ‘is an entity within the Authority’ that ‘provides assistance in resolving negotiation impasses,’” the agency said in a press release. “Consistent with the panel’s placement within the authority, the statute confers upon the authority broad supervisory powers over the panel and its work.”
But perhaps notably, two boards that serve similar functions for members of the Foreign Service, the Foreign Service Labor Relations Board and the Foreign Service Impasse Disputes Panel, appear to remain equal and independent of one another on the new organizational chart.
Shortly thereafter, Collette responded to the change, urging Nichols to disregard what he described as a “cynical” attempt to change unfavorable evidence to improve the administration’s defense.
“The government had an opportunity in its reply brief and at the hearing to assert that the chart was not accurate, but made no effort to do so,” he wrote. “Instead, five days after the hearing, the authority deleted the chart from its website and replaced it with a new one which (conveniently) lists the panel as subordinate to the authority. This court should not reward the government’s cynical action by taking this new, self-serving evidence into account. At best, all this new evidence means is that the authority (through its website) has offered inconsistent explanations as to the status of the panel.”
The Justice Department also sought to provide additional clarity to the possible consequences of its desired method for unions to challenge impasses panel decisions. Although attorneys suggested that the FLRA would only issue cease and desist orders in such cases, they could not promise Nichols that the agency would not recommend decertifying a union.
In a separate June 29 filing, FLRA attorneys said that the agency follows guidance issued in 2000 by the then-FLRA general counsel recommending that remedies to unfair labor practice complaints “[be] not punitive.” Still, the FLRA “cannot offer a binding stipulation” that decertification would not be considered.
“The remedies guidance also makes clear that a party that refused to implement panel-imposed collective bargaining terms would most likely face: a cease-and-desist order; a remedial posting; a direction for the respondent to implement the collective bargaining agreement; and a direction to give retroactive effect to the panel-imposed terms,” the FLRA wrote.
The government’s argument apparently provided little solace to Collette, who noted that the 2000-era guidance constitutes “non-binding policy.” The current FLRA also has had no qualms about upending longstanding precedent when it feels is necessary, including on the definition of “working conditions,” official time for speaking to Congress, and union dues collection.
“The government’s citation of a non-binding policy guidance comes as cold comfort to a union faced with the prospect of provoking an unfair labor practice, when in the same breath the government admits it ‘cannot offer a binding stipulation as to what specific remedy would result from a ULP proceeding,’” Collette wrote. “[Moreover], while the government points out that remedies may not be ‘punitive,’ the guidance emphasizes that ‘the deterrence of future violative conduct is an essential purpose of a remedy.’ That suggests that the remedy must be painful enough to dissuade the union from committing future unfair labor practices.”