Judge Rules He Lacks Jurisdiction to Hear Impasses Panel Case

U.S. District Judge Carl Nichols dismissed a lawsuit filed by a union representing VA employees challenging the appointment process for members of the Federal Service Impasses Panel.

A federal judge last week ruled that he could not weigh in on a federal employee union’s legal challenge asserting that members of a panel tasked with resolving collective bargaining disputes should be subject to Senate confirmation, concluding instead that a union must first bring a complaint to the Federal Labor Relations Authority.

During the Trump administration, the Federal Service Impasses Panel was often the implementation mechanism for the former president’s policies aimed at cracking down on unions. Labor groups accused agencies of engaging in so-called “surface level” bargaining to rush to an impasse, at which point the impasses panel, a board composed of 10 members appointed directly by the president, would routinely issue pro-management contracts, often with draconian limits on practices such as official time.

The American Federation of Government Employees’ National Veterans Affairs Council sued the impasses panel last March, arguing that because of parties’ inability to directly appeal panel decisions and the lack of a direct supervisor over panel members, their appointments should be subject to Senate confirmation in accordance with the Constitution’s Appointments Clause. But attorneys for the panel argued that in order to bring its legal challenge, the union must first go before the FLRA, either via an unfair labor practice complaint or an arbitrated grievance.

Last week, U.S. District Judge Carl Nichols sided with the impasses panel, finding that the union’s claims that their only option to trigger such a proceeding was to “bet the farm” by refusing to abide by the panel’s decision and inviting the agency to file an unfair labor practice complaint against them wanting.

“The union likely can bring an unfair labor practice charge against the VA, even if the VA does not initiate proceedings,” Nichols said. “Panel orders are not self-enforcing, but are ‘binding on the parties’ only if they fail to ‘agree otherwise.’ The phrase ‘agree otherwise’ creates a ‘good faith’ duty for the VA ‘to consult or negotiate’ with the union about whether the panel’s decision should become part of the parties’ collective bargaining agreement. If the VA refuses to negotiate or opts to impose the panel’s decision unilaterally, the union could file its own unfair labor practice charge directly against the VA.”

Last November, the impasses panel issued its decision in the impasse between the VA and its union, again siding mostly with the department. And in January, the union voted overwhelmingly against ratification of the contract. But in the month that followed, including several weeks after the inauguration of President Biden and the signing of an executive order rescinding Trump’s workforce policies, union officials said the department has continued to stonewall them in negotiations.

Earlier this month, Government Executive first reported that Biden demanded the resignations of all members of the impasses panel. Although eight of the 10 appointees agreed to resign, two were fired.

Officials with AFGE’s VA union did not respond to a request for comment about the court case or the current state of negotiations on Monday. In a statement, VA spokesman Randal Noller declined to comment specifically on the court decision, but said the department is “committed to actively engaging with our labor partners to best serve veterans.”