ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED

No. 22-1220

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

FEDERAL EDUCATION ASSOCIATION-STATESIDE REGION, 

Petitioner,

v.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent.

ON PETITION FOR REVIEW OF DECISIONS OF

THE FEDERAL LABOR RELATIONS AUTHORITY

BRIEF FOR RESPONDENT

FEDERAL LABOR RELATIONS AUTHORITY

REBECCA J. OSBORNE

Acting Solicitor

NARIEA K. NELSON

Attorney

Federal Labor Relations Authority

1400 K Street, N.W. Suite 200

Washington, D.C. 20424

(771) 444-5775

solmail@flra.gov

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CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES

A. Parties

Appearing below before the Federal Labor Relations Authority 

(the “Authority” or “FLRA”) were the Federal Education AssociationStateside Region (the “Union”) and the U.S. Department of Defense,

Domestic Dependents Elementary and Secondary Schools. In this 

Court proceeding, the Union is the petitioner and the Authority is the 

respondent.

B. Rulings Under Review

The Union seeks review of two Authority decisions U.S. 

Department of Defense, Domestic Dependent Elementary and Secondary 

Schools (“DOD I”), 72 FLRA 601 (2021) (then-Chairman DuBester 

concurring) and U.S. Department of Defense, Domestic Dependent 

Elementary and Secondary Schools, 73 FLRA 149 (2022) (denying 

reconsideration of DOD I) (then-Chairman DuBester concurring).

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C. Related Cases

This case was not previously before this Court or any other court, 

nor is the FLRA aware of any related cases currently pending before 

this Court or any other court.

/s/ Rebecca J. Osborne

Rebecca Osborne

Acting Solicitor

Federal Labor Relations Authority

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TABLE OF CONTENTS

CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES.......i

A. Parties ...............................................................................................i

B. Rulings Under Review ......................................................................i

C. Related Cases ...................................................................................ii

TABLE OF CONTENTS ......................................................................... iii

TABLE OF AUTHORITIES......................................................................v

GLOSSARY ...............................................................................................x

STATEMENT REGARDING JURISDICTION ........................................1

STATEMENT OF THE ISSUES PRESENTED.......................................3

RELEVANT STATUTORY PROVISIONS ...............................................4

STATEMENT OF THE CASE ..................................................................4

A. Relevant statutory background .......................................................4

B. Procedural History .........................................................................10

STATEMENT OF THE FACTS ..............................................................14

A. Background ....................................................................................14

B. FSIP Decision.................................................................................15

C. Grievances ......................................................................................17

D. Appeal to Authority........................................................................20

SUMMARY OF THE ARGUMENT ........................................................25

STANDARD OF REVIEW.......................................................................32

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ARGUMENT ...........................................................................................34

I. The Authority reasonably set aside the Arbitrator’s award 

because it was contrary to law.......................................................34

A. The Union’s grievances, and the Arbitrator’s award, were 

direct attacks on the FSIP decision. ..............................................35

B. The Authority correctly found that the FSIP decision resolved 

all outstanding issues, and that the Union’s claims to the 

contrary merely reflect its attempts to overturn the FSIP 

decision. ..........................................................................................40

i. The FSIP decision resolved all outstanding issues........................... 41

ii. The Union created disputes resolved by the FSIP decision—

it did not engage in substantive negotiations after that 

decision............................................................................................................................ 42

II. The Authority reasonably determined that agency-head review 

was appropriate after FSIP issued its decision.............................45

III.The Authority’s decisions do not reflect a change in Authority 

precedent or positions. ...................................................................49

A. The Authority’s decisions are consistent with the statutory 

framework and do not limit the means by which a union may 

challenge matters pertaining to a Panel order..............................50

B. The Authority’s decisions are consistent with arguments it 

made in District Court litigation concerning constitutional 

challenges to the appointment of FSIP Members. ........................53

CONCLUSION ........................................................................................57

FED. R. APP. P. RULE 32(a) CERTIFICATION ...................................58

CERTIFICATE OF SERVICE.................................................................58

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TABLE OF AUTHORITIES

Page(s)

Cases

Am. Fed’n of Gov’t Emps.,

16 FLRA 318 (1984)................................................................................8

Am. Fed’n of Gov’t Emps., AFL-CIO v. FLRA,

778 F.2d 850 (D.C. Cir. 1985)...................................................2, 6, 7, 37

Am. Fed'n of Gov't Emps. AFL-CIO Loc. 1815,

69 FLRA 309 (2016)............................................................ 30, 44, 47, 48

Am. Fed'n of Gov't Emps., AFL-CIO v. Trump,

929 F.3d 748 (D.C. Cir. 2019).................................................................5

Am. Fed’n of Govt’ Emps. v. Chao,

409 F.3d 377 (D.C. Cir. 2005)...............................................................32

Am. Fed’n. of Gov’t Emps. v. FLRA,

691 F.2d 565 (D.C. Cir. 1982).................................................................6

Am. Fed’n of Gov’t Emps., Loc. 2303 v. FLRA,

815 F.2d 718 (D.C. Cir. 1987)...............................................................34

Am. Fed’n of Gov’t Emps., Loc. 2343 v. FLRA,

144 F.3d 85 (D.C. Cir. 1998).................................................................33

Am. Fed’n of Gov’t Emps., Loc. 2510 v. FLRA,

453 F.3d 500 (D.C. Cir. 2006).................................................................3

Am. Fed’n of Gov’t Emps., Loc. 3254,

73 FLRA 325 (2022)..............................................................................35

Am. Fed’n of Gov’t Emps., Loc. 3937,

64 FLRA 17 (2009)......................................................................9, 27, 41

Am. Fed’n of Gov’t Emps., Nat’l VA Council,

40 FLRA 195 (1991)...............................................................................48

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Am. Fed’n of Gov’t Emps., Nat’l VA Council,

39 FLRA 1055 (1991)......................................................................30, 48

Antilles Consol. Educ. Ass’n v. FLRA,

977 F.3d 10 (D.C. Cir. 2020)...................................................................2

Ass’n of Civilian Technicians, N.Y. State Council v. FLRA,

507 F.3d 697 (D.C. Cir. 2007).............................................................2, 3

Ass’n of Civilian Technicians, Ky. Long Rifle Chapter,

70 FLRA 968 (2018)..............................................................................49

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,

419 U.S. 281 (1974)...............................................................................34

Cellco P’ship v. FCC,

357 F.3d 88 (D.C. Cir. 2004).................................................................33

Chevron USA Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984).........................................................................32, 33

Council of Prison Locs. v. Brewer,

735 F.2d 1497 (D.C. Cir. 1984)..........2, 5, 8, 9, 25, 29, 34, 36, 50, 52, 56

Department of Army Corps Engineers,

64 FLRA 405 (2010)..............................................................................35

Dep’t of Energy, Office of Science & Technical Information,

63 FLRA 219 (2009)..............................................................................35

Dep't of HHS, Health Care Fin. Admin.,

39 FLRA 120 (1991)................................................................................9

Elgin v. Dep't of Treasury,

567 U.S. 1 (2012)...................................................................................37

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009)...............................................................................33

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Fort Bragg Ass’n of Teachers,

44 FLRA 852 (1992)..............................................................................49

Interpretation & Guidance,

15 FLRA 564 (1984)................................................................................9

Int’l Org. of Masters, Mates & Pilots,

36 FLRA 555 (1990)..............................................................................48

Jarkesy v. Secs. & Exch. Comm’n,

803 F.3d 9 (D.C. Cir. 2015)...................................................................37

Nat’l Air Traffic Controllers Ass’n AFL-CIO v. FSIP,

437 F.3d 1256 (D.C. Cir. 2006).....................................................2, 5, 36

Nat'l Air Traffic Controllers Ass'n v. FSIP,

606 F.3d 780 (D.C. Cir. 2010).................................................................4

Nat’l Labor Relations Board,

72 FLRA 334 (2021)..............................................................................40

Nat’l Treasury Emps. Union,

71 FLRA 962 (2020)................................................................................2

National Treasury Emps. Union v. FLRA,

45 F.4th 121 (D.C. Cir. 2022)................................................................46

Nat’l Treasury Emps. Union v. FLRA,

754 F.3d 1031 (D.C. Cir. 2014).......................................................32, 33

Nat'l Treasury Emps. Union v. FLRA,

712 F.2d 669 (D.C. Cir. 1983).................................................................7

New Hampshire v. Maine,

532 U.S. 742 (2001)...............................................................................53

Overseas Educ. Ass’n v. FLRA,

824 F.2d 61 (D.C. Cir. 1987)...................................................................8

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Pat. Off. Pro. Ass'n,

41 FLRA 795 (1991)..............................................................................48

Shays v. Fed. Election Comm’n,

414 F.3d 76 (D.C. Cir. 2005).....................................................33, 34, 46

State of N.Y., Div. of Mil. & Naval,

2 FLRA 185 (1979).............................................................. 2, 7, 9, 25, 56

Temple Univ. Hosp., Inc. v. NLRB,

929 F.3d 729 (D.C. Cir. 2019)...............................................................53

U.S. Army Corps of Eng’rs Kan. City Dist. Kan. City, Mo.,

16 FLRA 456 (1984)..........................................................................7, 56

U. S. Department of Defense, Domestic Dependent Elementary and 

Secondary Schools,

72 FLRA 601 (2021).... 1, 3, 10, 11, 12, 13, 14, 18, 29, 22, 24, 26, 37, 42,

43, 44, 45, 48, 49, 50, 53, 54, 55

U. S. Department of Defense, Domestic Dependent Elementary and 

Secondary Schools,

73 FLRA 149 (2022).... 1, 3, 13, 14, 22, 24, 26, 27, 28, 31, 39, 41, 50, 51,

53, 54, 55, 56

U.S. Dep’t of Navy v. FLRA,

665 F.3d 1339 (D.C. Cir. 2012)...............................................................8

Statutes

5 U.S.C. § 7105 ............................................................................2, 7, 8, 25

5 U.S.C. § 7114 ...................................4, 6, 9, 12, 20, 21, 29, 45, 47, 48, 49

5 U.S.C. § 7116(a),(d) ........................................................ 8, 17, 18, 27, 50

5 U.S.C. § 7118(a)(1)..................................................................................8

5 U.S.C. § 7119 ............. 3, 5, 6, 7, 12, 20, 21, 25, 26, 35, 40, 45, 46, 47, 50

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5 U.S.C. § 7123(a)(c).............................................................. 1, 2, 3, 33, 36

5 U.S.C. § 7311 ....................................................................................5, 36

18 U.S.C. § 1918 ..................................................................................5, 36

Rules

Fed. R. App. P. 32(a)................................................................................58

Regulations

5 C.F.R. § 2471.6 .......................................................................................6

Other Authorities

124 Cong. Rec. H. 9698 .......................................................................5, 36

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GLOSSARY

Agency U.S. Department of Defense, Domestic 

Dependents Elementary and Secondary Schools

Arbitrator Neal Orkin

Authority The Federal Labor Relations Authority

Br. Petitioner’s opening brief 

DOD I U.S. Department of Defense, Domestic Dependent 

Elementary and Secondary Schools, 72 FLRA 601 

(2021) (then-Chairman DuBester concurring)

DOD II U.S. Department of Defense, Domestic Dependent 

Elementary and Secondary Schools, 73 FLRA 149 

(2022) (then-Chairman DuBester concurring)

FLRA The Federal Labor Relations Authority

FSIP The Federal Service Impasses Panel

JA Joint Appendix

Panel The Federal Service Impasses Panel

Statute The Federal Service Labor-Management 

Relations Statute, 5 U.S.C. §§ 7101-7135 (2018)

ULP Unfair labor practice

Union Petitioner, Federal Education AssociationStateside Region 

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STATEMENT REGARDING JURISDICTION

This Court lacks appellate jurisdiction over the Petition for 

Review filed by the Federal Education Association Stateside (affiliated 

with the National Education Association) (the “Union”).

The Union seeks review of the decisions of the Federal Labor 

Relations Authority (“FLRA” or “Authority”) in United States

Department of Defense, Domestic Dependent Elementary and Second 

Schools and Federal Education Association Stateside Region, 0-AR5590, 72 FLRA 601 (2021) (“DOD I”), motion for recons. denied, 73 

FLRA 149 (2022) (“DOD II”). In those cases, the Authority set aside an 

arbitration award on the ground that the Arbitrator did not have the 

power to determine whether the Federal Service Impasses Panel (the 

“Panel” or “FSIP”) properly exercised jurisdiction over a dispute. All 

other findings and conclusions in DOD I and DOD II flow from that core 

issue. 

Under § 7123 of the Federal Service Labor-Management Relations 

Statute (“Statute”), 5 U.S.C. § 7101-7135 (2018), federal courts lack 

subject-matter jurisdiction to review Authority decisions regarding 

arbitration awards unless the Authority’s order “involves an unfair 

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labor practice.” 5 U.S.C. § 7123(a)(1). To “involve” an unfair labor 

practice, the Authority’s decision must “include some sort of substantive 

evaluation of a statutory unfair labor practice.” Ass’n of Civilian 

Technicians, N.Y. State Council v. FLRA (“ACT”), 507 F.3d 697, 699 

(D.C. Cir. 2007) (internal quotation marks omitted). “A passing 

reference to an unfair labor practice or a mere effect on the 

reviewability of an unfair labor practice claim is not enough.” Id. at 700.

The Authority’s decisions in this case do not involve a “substantive 

evaluation of a statutory unfair labor practice.” The decisions instead 

relate to the central question of whether an arbitrator has the power to 

directly review Panel decisions—a power that neither this Court1 nor 

the Authority2 has. Indeed, the arbitrator’s underlying award hinges 

not on whether one of the parties engaged in an unfair labor practice, 

 

1 See Antilles Consol. Educ. Ass’n v. FLRA, 977 F.3d 10, 14 (D.C. Cir. 

2020); Nat’l Air Traffic Controllers Ass’n AFL-CIO v. FSIP, 437 F.3d 

1256, 1258 (D.C. Cir. 2006); Am. Fed’n of Gov’t Emps., AFL-CIO v. 

FLRA, 778 F.2d 850, 854 (D.C. Cir. 1985); Council of Prison Locs. v. 

Brewer, 735 F.2d 1497, 1499 (D.C. Cir. 1984).

2 See 5 U.S.C. § 7105; see also Nat’l Treasury Emps. Union, 71 FLRA 

962, 962 (2020); State of N.Y., Div. of Mil. & Naval Affs., 2 FLRA 185, 

188 (1979).

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but rather whether the Panel properly exercised jurisdiction over a 

dispute about a collective bargaining agreement. 

As the Authority’s decisions in DOD I and DOD II concern the 

power of an arbitrator to directly review a Panel decision, the decisions 

do not further “Congress’s other stated interest of ensuring ‘a single, 

uniform body of case law concerning unfair labor practices.’” ACT, 507 

F.3d at 699 (quoting Am. Fed’n of Gov’t Emps., Local 2510 v. FLRA, 453 

F.3d 500, 505 (D.C. Cir. 2006)). The Petition for Review should 

therefore be dismissed for lack of jurisdiction under § 7123(a)(1).

STATEMENT OF THE ISSUES PRESENTED

1. Does this Court have the jurisdiction to review Authority 

decisions setting aside an arbitration award on the ground that it 

violated 5 U.S.C. § 7119 because it directly reviewed a Panel decision? 

2. Did the Authority act arbitrarily and capriciously when it 

determined that the Union directly challenged a Panel decision by 

repeatedly claiming the Panel “lacked jurisdiction” over the matter it 

had decided or “exceeded its authority”? 

3. Did the Authority act arbitrarily and capriciously when it 

determined that an arbitration award violated 5 U.S.C. § 7119 because 

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the arbitrator determined that the Panel “should not have issued a 

decision ordering the parties” to accept a collective bargaining term 

based on his belief that the Panel did not have jurisdiction over that 

dispute?

4. Did the Authority act arbitrarily and capriciously when it 

determined that agency-head review properly occurred 30 days after a 

Panel decision resolved all remaining bargaining issues in the case?

RELEVANT STATUTORY PROVISIONS

All relevant statutory and regulatory provisions are in the 

attached Statutory Addendum. (Add. 1.)

STATEMENT OF THE CASE

A. Relevant statutory background 

When it passed the Statute, “Congress established a distinct 

regulatory framework for collective bargaining between federal agencies 

and their employees.” Nat'l Air Traffic Controllers Ass'n v. FSIP, 606 

F.3d 780, 783 (D.C. Cir. 2010). The Statute “grants federal agency 

employees the right to organize, provides for collective bargaining, and 

defines various unfair labor practices.” Id.; see also 5 U.S.C. 

§§ 7114(a)(1), 7116. It also imposes a duty on “unions and federal 

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agencies [to] negotiate in good faith over certain matters.” Am. Fed'n of 

Gov't Emps., AFL-CIO v. Trump (“AFGE v. Trump”), 929 F.3d 748, 752 

(D.C. Cir. 2019) (citations omitted). “The FLRA is primarily responsible 

for administering the [S]tatute.” Nat'l Air Traffic Controllers Ass'n 

AFL-CIO v. FSIP (“NATCA 2006”), 437 F.3d 1256, 1257 (D.C. Cir. 

2006). 

The Panel is “an entity within the Authority, the function of which 

is to provide assistance in resolving negotiation impasses between 

agencies and exclusive representatives.” 5 U.S.C. § 7119(c)(1). It 

“serves as a forum ‘of last resort in the speedy resolution of disputes’ 

between a federal agency and the exclusive representatives of its 

employees ‘after negotiations have failed.’” NATCA 2006, 437 F.3d at 

1257-58 (quoting Council of Prison Locs. v. Brewer (“Brewer”), 735 F.2d 

1497, 1501 (D.C. Cir. 1984)). Congress created the Panel to resolve 

impasses without the need for strikes, which are prohibited in federalsector employment. See 124 Cong. Rec. H. 9698 (daily ed. Sept. 13, 

1978) (discussing the Statute’s effect on 5 U.S.C. § 7311 and 18 U.S.C. 

§ 1918, which bar federal worker strikes). 

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Either a federal employer or a union may request the Panel’s 

assistance to resolve a negotiation impasse. 5 U.S.C. § 7119(b). 

Pursuant to the Statute, the Panel must “promptly investigate any 

impasse presented to it,” Id. § 7119(c)(5)(A), and then “either (1) 

[d]ecline to assert jurisdiction in the event that it finds that no impasse 

exists or that there is other good cause for not asserting jurisdiction” or 

“(2) [a]ssert jurisdiction,” 5 C.F.R. § 2471.6(a). If the Panel asserts 

jurisdiction, then it may “take whatever action is necessary and not 

inconsistent with [the Statute] to resolve the impasse. . . .” Am. Fed’n. 

of Gov’t Emps. v. FLRA, 691 F.2d 565, 569 n.26 (D.C. Cir. 1982) (citing 5 

U.S.C. § 7119(c)(5)(B)(iii)); see also 5 C.F.R. § 2471.6(a)(2)(ii).

“Panel impasse-resolving action often takes the form of ordering 

the parties to adopt particular contract provisions. The FLRA and the 

courts consider such Panel-imposed terms to be part of the collective 

bargaining agreement.” Am. Fed'n of Gov't Emps., AFL-CIO v. FLRA

(“AFGE 1985”), 778 F.2d 850, 863 (D.C. Cir. 1985). As such, they are 

subject to review by the head of the agency affected. See 5 U.S.C. 

§ 7114 (“An agreement between any agency and an exclusive 

representative shall be subject to approval by the head of the agency.”); 

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AFGE 1985, 778 F.2d at 857 (“This court and the Authority have 

interpreted the term ‘agreement’ as used in the head of the agency 

provision, to include all terms—whether achieved by negotiation or 

imposed by the Impasses Panel.”). 

Neither this Court nor the Authority have the power to directly 

review a Panel decision. See 5 U.S.C. § 7105 (list of powers of the 

Authority does not include the power to review Panel decisions); id. 

§ 7119(c)(5)(C) (actions of the Panel are “final and binding”); AFGE 

1985, 778 F.2d at 854; U.S. Army Corps of Eng’rs Kan. City Dist. Kan. 

City, Mo., 16 FLRA 456, 458–59 (1984) (“a party to a proceeding before 

the FSIP may not appeal directly to the Authority” (citing State of N.Y., 

Div. of Mil. & Naval Affs. (“State of N.Y.”), 2 FLRA 185 (1979)). 

Instead, Panel decisions may be indirectly attacked through the 

Statute’s detailed remedial scheme by which parties may file or be the 

subject of ULP proceedings, appeal those findings to the FLRA, and 

then to this Court. See also Nat'l Treasury Emps. Union v. FLRA, 712 

F.2d 669, 671 n.5 (D.C. Cir. 1983) (“The Panel’s decision is reviewable, 

first before the Authority, then in court, in an unfair labor practice 

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proceeding.”); see also Brewer, 735 F.2d at 1500-501 (same); 5 U.S.C. 

§§ 7105, 7118, 7121, 7123(a). 

“The Statute establishes essentially a two-track system for 

resolving” allegations of a ULP. Overseas Educ. Ass’n v. FLRA, 824 

F.2d 61, 62 (D.C. Cir. 1987). First, either party may file a ULP charge. 

5 U.S.C. § 7118(a)(1). Second, either party may submit a grievance to 

an arbitrator under provisions set forth in an existing CBA. Id. 

§ 7122(a). The choice of which track to pursue belongs to the 

complaining party. Under 5 U.S.C. § 7116(d), “[a]n aggrieved party may 

elect either track—the statutory complaint procedure or binding 

arbitration—but not both.” U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339, 

1344 (D.C. Cir. 2012). 

Although Panel orders are not directly reviewable by the 

Authority, the Statute provides a particular avenue for an indirect 

challenge. Either party’s noncompliance with a Panel decision 

constitutes an ULP. 5 U.S.C. § 7116(a)(6), (b)(6) (making “fail[ure] or 

refus[al] to cooperate in impasse procedures and impasse decisions” by 

agency or union alike an ULP); e.g., Am. Fed’n of Gov’t Emps., 16 FLRA 

318, 318–19 (1984) (holding that a union committed an ULP when it 

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refused to sign the parties’ pre-negotiation agreement incorporating a 

Panel decision); Interpretation & Guidance, 15 FLRA 564, 567–68 

(1984) (explaining that an agency head’s erroneous rejection of a Panel 

decision as contrary to any applicable law, rule, or regulation under 5 

U.S.C. § 7114(c) is an ULP). A party charged with such an ULP may 

challenge the validity of the Panel decision as a defense against the 

ULP. See Brewer, 735 F.2d at 1500-01; State of N.Y., 2 FLRA at 188.

Challenging the circumstances surrounding a Panel decision as 

distinguished from challenging the validity of the Panel decision itself -

may be accomplished in a number of ways. For example, a party also 

could contend that the other party had committed a ULP by bargaining 

to impasse over permissive subjects. Am. Fed’n of Gov’t Emps., Loc. 

3937 (“AFGE, Loc. 3937”), 64 FLRA 17, 21 (2009) (“It is well established 

that insisting to impasse on a permissive subject of bargaining violates 

the Statute.”). A party could also be found to have committed a ULP by 

refusing to bargain in good faith over matters left unresolved by a Panel 

decision. Dep't of HHS, Health Care Fin. Admin., 39 FLRA 120, 131 

(1991) (unilateral implementation of a policy while matter was before 

the Panel was a ULP). 

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But although a party may bring a variety of ULP claims arising 

from that party’s conduct both before and after a Panel decision, and 

remedies for those ULPs could nullify a portion of the Panel’s decision, 

the party cannot directly attack the Panel decision itself. ULP claims 

that are based in whole or in part on a challenge to a Panel decision 

constitute such forbidden direct attacks.

B. Procedural History

The dispute arose after the Union and the U.S. Department of 

Defense, Domestic Dependents Elementary and Secondary Schools (the 

“Agency”) submitted to the Panel for resolution, articles of a successor 

Master Labor Agreement (“MLA”) that the parties had been unable to 

resolve. DOD I, 72 FLRA 601. 

With the Panel’s assistance, the parties voluntarily resolved most 

of the disputed articles, including Article 18, Section 1(a), which 

concerned the number of hours in the workday. Id. 

Ten issues remained unresolved, including Article 18, Section 3(f), 

relating to compensation for school days rescheduled due to weather. 

Id. The Union argued to the Panel that it lacked jurisdiction over 

Article 18, Section 3(f) because the subject matter of that section was 

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covered by Article 11. Id. On December 14, 2018, the Panel issued an 

order resolving all ten issues, including Article 18, Section 3(f). Id. at 

602. In that order, the Panel determined that no conflict existed 

between Article 11 and Article 18, because Section 3(f) of Article 18 

establishes a “190-day work year” and Article 11 was meant to address 

compensation beyond the 190-day work year requirement. Id.

As the Panel decision resolved all remaining issues in the case, 

the Agency forwarded the MLA to the Director of Defense Civilian 

Personnel Advisory Service (“DCPAS” or the “Agency Head”) for review. 

Id. at 602.

The Union filed two grievances alleging that the Agency 

unlawfully: (1) submitted the MLA to the agency-head for review (JA 

120-121) and (2) repudiated the parties’ ground rules and former MLA 

(JA 133-134). In its second grievance, the Union disputed the Panel's 

jurisdiction over Article 18, Section 3(f). (JA 133-134.)

The parties proceeded to arbitration. On January 2, 2020, the 

Arbitrator issued his award. The Arbitrator found in relevant part, “the 

Panel “should not have issued a decision ordering the parties to accept 

the Agency's proposed version of Article 18, Section 3(f).” DOD I, 72 

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FLRA at 602. The Arbitrator therefore set aside the Panel decision and 

found that the issues the Panel decision had resolved were reopened. 

Id. Based on his invalidation of the Panel decision, the Arbitrator found 

that there were now unresolved bargaining issues involving Article 18, 

Section 3(f), Article 18 was reopened, and the Union could consequently 

withdraw from Article 18, Section 1(a). Id. Based on his determination 

that the Panel lacked jurisdiction over Article 18, Section 3(f), and his 

related finding that bargaining over Article 18 was unresolved, the 

Arbitrator concluded that the Agency should not have submitted an 

unsigned agreement – including the Panel-imposed provisions of Article 

18 – for agency-head review. On February 3, 2020, the Agency filed 

exceptions with the Authority, contending the Arbitrator’s award was 

contrary to law. (JA 27-57.) 

On December 20, 2021, the Authority issued DOD I. 72 FLRA at 

601. In that Decision, the Authority set aside the Arbitrator’s award on 

three grounds. First, the Authority found that the award was contrary 

to § 7119 because the Union’s ULP grievances constituted a direct 

attack on the FSIP decision. Id. at 603. Second, the Authority 

determined the award was contrary to § 7114 because the Arbitrator 

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erroneously concluded there were unresolved provisions remaining in 

the MLA after the FSIP decision. Id. at 604. Third, the Authority 

found that the Arbitrator erred in finding that the MLA was not 

properly executed since “the successor MLA was executed when the 

Panel issued its order.” Id. at 605. On December 27, 2021, the Union 

filed a motion for reconsideration of DOD I. (JA 372-80.) 

On August 16, 2022, the Authority denied the Union’s motion for 

reconsideration in DOD II, finding that the Union’s arguments failed to 

establish extraordinary circumstances warranting reconsideration. 73 

FLRA 149. Addressing the Union’s specific objections, the Authority 

found that there had been no change in law regarding the statutory 

scheme for reviewing FSIP decisions and that FSIP decisions are not 

subject to direct review. Id. at 150-51. The Authority reiterated that 

the Union’s grievances constituted an impermissible direct attack on 

the FSIP decision. Id. at 150-52. In rendering those determinations, the 

Authority found that its Decision did not “limit the methods by which a 

union can challenge matters pertaining to an order by the Panel.” Id. at 

152 n.32 (note by then-Member Grundmann). Finally, the Authority 

rejected as both untimely, and failing to demonstrate that it had erred, 

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the Union’s arguments that there were unresolved MLA terms when 

FSIP issued its decision. Id. at 151-52.

Thereafter, the Union filed this Petition for Review of the 

Authority’s decisions in DOD I and DOD II. 

STATEMENT OF THE FACTS

A. Background

The Agency provides elementary and secondary education to 

children of military employees. (JA 173-174.) The Union represents 

certain Agency professional employees. (JA 174.) 

In 2010, the Agency and the Union began negotiating a successor 

MLA. DOD I, 72 FLRA at 601. The Agency and the Union 

implemented ground rules stating, in relevant part, that “[o]nce 

agreement is reached on all proposals/provisions of the [successor 

MLA], and it is signed, the agreement will be formally executed (signed 

and dated) and submitted for agency[-]head review.” (JA 131.) 

In 2015, the Agency and the Union reached a new ground-rules 

agreement through a Memorandum of Understanding that added, 

“Except by mutual agreement, all agreed upon [a]rticles . . . remain 

agreed and not subject to further modification” but “[p]arties reserve 

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the right to modify their proposals concerning any [a]rticle . . . to which 

the parties have not yet reached agreement.” 72 FLRA at 601. The 

Agency and Union then continued to negotiate the successor MLA.

B. FSIP Decision

In 2018, after being unable to come to an agreement on various 

MLA provisions, the Agency notified FSIP that the parties were at 

impasse on those issues. (JA 173.) FSIP agreed and on October 23 and 

October 25, 2018, the Agency and Union had an informal conference 

with a FSIP Member. (JA 173.) During that conference, the parties 

resolved nearly 30 of the outstanding issues, including issues related to 

Article 18, Section 1(a), which concerned working hours. (JA 173.) 

However, at the conclusion of the informal conference, there were 10 

articles over which the Agency and the Union had not reached an 

agreement, including Article 18, Section 3(f). (JA 173.) The FSIP 

Member directed the parties to file written submissions on the 

remaining issues by November 9, 2018. (JA 173.) 

In its submission, the Agency proposed language for Article 18, 

Section 3(f), which concerned working days and school closings. (JA 

176.) The Union opposed that proposal and argued that FSIP did not 

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have jurisdiction over it because a different article (Article 11, Section 

5(b)) already addressed (or “covered” that issue) and the two articles 

conflicted with one another. (JA 176-77.) The Union did not, however, 

offer a counter proposal to the Agency’s proposed language for Article 

18, Section 3(f). (JA 176.)

On December 14, 2018, the Panel issued a decision on the Union 

and Agency’s remaining disputes. (JA 173-97.) In relevant part, FSIP 

determined that it did have jurisdiction over Article 18, Section 3(f). 

The Panel determined that no conflict existed between Article 11 and 

Article 18, because Section 3(f) of Article 18 establishes a “190-day work 

year” and Article 11 was meant to address compensation beyond the 

190-day work year requirement. (JA 178.) FSIP then ordered the 

parties to adopt the Agency’s proposal regarding Article 18, Section 3(f). 

(JA 179.) 

Pursuant to the FSIP decision, on January 11, 2019, DCPAS 

signed a memorandum approving the agreement as directed by FSIP. 

(JA 198.) The Union refused to sign the agreement claiming, in spite of 

the FSIP decision to the contrary, that there were still unresolved 

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articles in the MLA. (JA 122.) On January 23, 2019, the Union sent an 

email to the Agency stating: 

[t]he remaining roadblock to executing a term bargaining 

agreement concerns FSIP’s adoption of the Agency’s 

proposed Article 18.3.f. As you are aware, it is [the Union’s] 

position that FSIP lacked jurisdiction over the Agency’s 

proposal . . . [the Union] asks that the agency seriously 

consider withdrawing its proposed Article 18.3.f altogether. 

(JA 122.) 

C. Grievances

On February 9, 2019, the Union filed a grievance asserting “the 

Agency’s decision to submit an unexecuted draft of the parties’ 

successor MLA to DCPAS is in violation of the parties’ ground rules and 

law and constitutes bad faith bargaining and an ULP under § 7116(a) of 

the Statute.” (JA 120-21.) 

On February 11, 2019, the Agency sent the Union an email stating 

that the effective date of the successor MLA was January 11, 2019, the 

date the Agency Head approved the agreement. (JA 137.) On February 

13, 2019, the Union responded that it considered the Agency’s email to 

be:

an express repudiation of the parties’ Master Labor 

Agreement. The agreed upon requirement for the parties to 

execute a final agreement is a statutory right. Until such 

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time a new agreement is executed and becomes effective, 

under the duration clause of the MLA and the parties’ 

ground rules, the terms of the 2005 MLA remain in effect. 

(JA 136.) 

On February 21, 2019, the Union filed a separate grievance 

alleging that “the Agency’s repudiation of the terms of the parties’ 

Master Labor Agreement and the Agency’s notification that it will be 

implementing the terms of an unexecuted successor Master Labor 

Agreement” was an ULP under § 7116(a) of the Statute. (JA 133-34.) It 

also disputed the Panel's jurisdiction over Article 18, Section 3(f), 

explaining, “[The Union] would not execute a final agreement until the 

parties have finalized the unsigned [a]rticles and resolved the dispute 

over [the Panel's] jurisdiction.” DOD I, 72 FLRA at 602 & n.10. The 

Agency denied both grievances. (JA 153-57.) 

The Arbitrator consolidated the grievances and held arbitration 

hearings on them on September 11, and September 12, 2019. (JA 7). In 

its post-arbitration brief, the Union argued, “FSIP Exceeded Its 

Authority by Adopting the Agency’s Proposed Article 18, Section 3(f).” 

(JA 302.) The Union’s argument that Article 18, Section 3(f) was a 

permissive subject was premised on its position—previously rejected by 

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the Panel—that Article 11, Section 5(a) covered the same subject matter 

regarding weather-related absences. (JA 302-03.) 

On January 20, 2020, the Arbitrator issued his Award. The 

Arbitrator framed the issues as whether Article 18, Section 3(f)—which 

FSIP had already imposed—was enforceable, and whether the Union 

could lawfully withdraw its previous approval of Article 18, Section 1(a). 

(JA 12.) 

The Arbitrator’s resolution of the grievance hinged on his initial 

findings that the “The Union had a right not to accept FSIP’s order and, 

in turn, to file grievances leading to arbitration.” (JA 21-22 (emphasis 

added).) On the merits of the Union’s objections to FSIP’s order, the 

Arbitrator found the “Union was correct in its argument that FSIP 

should not have issued a decision ordering the parties to accept the 

Agency’s proposed version of Article 18, Section 3(f), as it was a 

permissive subject of bargaining.” (JA 21-22.) 

From these determinations, the Arbitrator made his remaining 

findings. Having invalidated the Panel’s imposition of Article 18, 

Section 3(f), the Arbitrator concluded that bargaining over Article 18 as 

a whole was incomplete. Consequently, the Arbitrator found that the 

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parties’ ground-rules agreement permitted the Union to withdraw from 

Article 18, Section 1(a). (JA 21.) He then found that the Agency 

violated the ground-rules agreement and the Statute by submitting an 

unsigned agreement for Agency-head review. (JA 22-23.) Finally, he 

found that the Agency’s unilateral implementation of the successor 

MLA (which the Agency implemented based on the FSIP decision) 

resulted in a repudiation of the 2005 MLA in violation of the groundrules agreement and the Statute. (JA 22-24). 

D. Appeal to Authority

On February 3, 2020, the Agency filed exceptions to the award 

with the Authority, and on March 3, 2020, the Union filed an opposition 

to the Agency’s exceptions. (JA 27-57; JA 202-60.)

On December 20, 2021, the Authority issued its decision in DOD I

setting aside the Arbitrator’s award and finding it contrary to § 7119

and § 7114 of the Statute. 72 FLRA 601. First, the Authority found 

that “[i]n the second grievance, and before the Arbitrator, the Union 

contested the Panel's imposition of Article 18, Section 3(f) by repeatedly 

claiming that the Panel ‘lacked jurisdiction’ or ‘exceeded its authority.’” 

Id. at 603 (internal citations omitted). Noting that the “Authority has 

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repeatedly stated that Panel orders are not directly reviewable,” the 

Authority found that “[t]he Union's grievances directly contesting the 

Panel's order fail to respect the statutory framework for review of Panel 

orders and circumvent the procedure set in § 7119.” Id. Accordingly, 

the Authority concluded that the award was contrary to § 7119. Id.

Next, the Authority found that no further action was required to 

finalize the successor MLA after the Panel issued its order. Id. at 604. 

The Authority determined that “the Arbitrator found that the only 

unresolved bargaining issues were Article 18, Sections 1(a) and 3(f).” 

Id. at 604. It further found that “[b]ecause the Arbitrator's conclusion 

that the Union properly withdrew from Article 18, Section 1(a) hinged 

on the erroneous conclusion that Article 18, Section 3(f) was 

unenforceable, there were no unresolved bargaining issues after the 

Panel issued its order.” Id. As a result, the Authority concluded the 

Agency properly conducted Agency-head review within 30 days of the 

Panel’s order as required by § 7114, and the Agency’s actions did not 

constitute a repudiation of the 2005 MLA. Id. Because the Authority 

determined that the Arbitrator’s contrary conclusions conflicted with 

§ 7114, the Authority set aside the Arbitrator’s award. Id. at 605.

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On December 27, 2021, the Union filed a Motion for 

Reconsideration of DOD I. (JA 372-80.) The Authority denied that 

motion on August 16, 2022. DOD II, 73 FLRA 149. The Authority first 

found there had been no change in law regarding the statutory scheme 

for reviewing FSIP decisions. Id. at 150. It reiterated that “the 

Authority and courts have repeatedly held that Panel orders are not 

subject to direct review. . . .” Id. Rather, the Authority held that 

parties may challenge the circumstances surrounding a Panel decision 

in a ULP proceeding that may ultimately be appealed to the Courts. Id.

The Authority addressed the Union’s contention that the Statute’s lack 

of a direct appeal procedure is “irrational” by noting that “the scheme of 

review is statutory in nature and any changes to it must come from 

Congress, not the Authority.” Id. 

The Authority rejected the Union’s contention that it did not have 

the opportunity to brief why it collaterally attacked the Panel’s decision. 

Id. at 151. The Authority distinguished the decisions relied upon by the 

Union, observing that the Union’s ULP grievances constituted a direct 

attack on the Panel’s decision. Id. In support, the Authority cited the 

Union’s arguments to the Arbitrator, including the Union’s postUSCA Case #22-1220 Document #1985582 Filed: 02/10/2023 Page 33 of 88
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arbitration brief that stated, “It is the Union’s position that the Panel 

lacked jurisdiction over Article 18, Section 3(f)” and “The Panel 

exceeded its authority by adopting the Agency's proposed Article 18, 

Section 3(f).” Id. at 152 n.19 (alterations and citations omitted). 

The Authority also addressed the Union’s contention that 

intervening litigation, and more specifically the Authority’s briefs in 

federal District Court litigation, were evidence that the “union is not 

relegated to waiting for an agency to file a charge against it.” Id. at 

151. A majority of the Authority found that the Union’s avenues for 

challenging matters pertaining to a Panel decision were broader than 

“waiting for an agency to file a charge against it.” Id. at 152 n.32. It 

specifically found:

Member Grundmann notes, and the Chairman’s concurrence 

acknowledges, the majority decision does not limit the 

methods by which a union can challenge matters pertaining 

to an order by the Panel and should not be viewed as such. 

Id. In his concurrence, then-Chairman DuBester outlined some of 

those “methods by which a union can challenge matters pertaining 

to an order by the . . . Panel”:

a union may challenge matters pertaining to a Panel 

decision by bringing an unfair labor practice charge alleging 

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that an agency action related to the Panel proceeding 

constituted an unfair labor practice.

For instance, it is well-established that a party commits an 

unfair labor practice by bargaining to impasse over 

permissive subjects. Additionally, an agency could be found 

liable for failing or refusing to bargain in good faith over 

matters left unresolved by a Panel decision. 

Id. at 153 (internal citations omitted). The Authority noted that its 

decisions should not be read as limiting the ability of unions to pursue 

such ULPs. Id. at 152, 153 (concurrence of then-Chairman DuBester).

Finally, the Authority rejected the Union’s argument that the 

parties had not resolved Article 22, Section 3 of the CBA before the 

Panel issued its decision. As in DOD I, the Authority rejected this 

argument because: (1) the Arbitrator had not adopted the Union’s 

argument that Article 22, Section 3 was unresolved and (2) the Union 

had not challenged the Arbitrator’s decision before the Authority. Id. at 

152, 153. 

On August 24, 2022, the Union filed the Petition for Review of the 

Authority’s decisions in DOD I and DOD II.

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SUMMARY OF THE ARGUMENT

The Court should dismiss and/or deny the Petition for Review 

because it seeks direct review of a Panel decision and the Authority’s 

determinations that it does so were neither arbitrary nor capricious. 

The Statute makes the Panel’s orders “binding on [the] parties 

during the term of the agreement, unless the parties agree otherwise.” 

5 U.S.C. § 7119(c)(5)(C). Panel orders are not directly reviewable by the 

Authority or courts. See id. § 7105; Brewer, 735 F.2d at 1499 (finding 

“the [S]tatute gives every reasonable indication that orders by the 

Impasses Panel are final and nonreviewable”); see also State of N.Y., 2 

FLRA at 188 (direct review of Panel orders is unavailable). Parties may 

challenge the circumstances surrounding Panel orders through ULP 

proceedings.

Although the Union argues that its grievances were collateral 

attacks (Br. 48), its grievances are inconsistent with the statutory 

framework for limited review of Panel orders. Moreover, the grievances 

plainly sought direct review of the Panel’s decision. That the legal 

theories underlying the Union’s grievances hinged entirely on the 

Arbitrator finding the Panel lacked jurisdiction to impose Article 18, 

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Section 3(f) demonstrates that the grievances required the Arbitrator to 

directly review the Panel’s decision. To the extent that the Union 

challenged the Agency’s conduct, the success of that challenge was 

contingent on the Union first establishing that the Panel decision was 

unlawful. The Union cannot dispute that in its second grievance and 

post-hearing brief, the Union argued that the Panel lacked jurisdiction 

over Article 18, Section 3(f) of the MLA. This constituted a direct attack 

on the Panel’s December 14, 2018, decision. The Arbitrator relied on 

the Union’s arguments in making the two main rulings in his decision: 

(1) that the Union was correct that the Panel lacked jurisdiction over 

Article 18, Section 3(f); and (2) that the Union could therefore 

withdraw its approval of Article 18, Section1(a). (JA 21-24.) 

It is for these reasons that the Authority decided that the Union’s 

grievance and the Arbitrator’s award constituted an impermissible 

direct attack on the Panel’s decision in violation of § 7119. DOD I, 72 

FLRA at 603. And as the majority clarified on reconsideration, its 

decision did not limit the avenues by which unions can challenge 

agencies’ conduct pertaining to FSIP decisions. DOD II, 73 FLRA at 

152 n.32 (note of then-Member Grundmann) & 153 (then-Chairman 

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DuBester concurring). Rather the Authority simply did not believe that 

the Union followed such an avenue or prevailed in such an argument. 

Id.

For example, despite repeatedly claiming FSIP lacked jurisdiction 

over Article 18, Section 3(f), the Union never filed an ULP grievance 

against the Agency alleging that it violated § 7116(a)(5) by bargaining 

to impasse on a permissive subject of bargaining. (JA 120-21, JA133-

34.) As then-Chairman DuBester observed, such a grievance would 

have been a lawful way that the Union could have challenged the 

Agency’s conduct. DOD II, 73 FLRA at 153 & n.5 (citing AFGE, Local 

3937, 64 FLRA at 21-22 (party that bargained to impasse a matter 

covered by existing agreements between the parties—a permissive 

subject of bargaining—committed a ULP). 

But the Union did not make that claim. DOD II, 43 FLRA at 153; 

JA 120-121, JA 133. Instead, it claimed that the Agency had unlawfully 

submitted the MLA for Agency Head review and allegedly repudiated 

the former MLA while the parties “resolved the dispute over FSIP’s 

jurisdiction.” (JA 133; JA 120-21.) 

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Similarly, the Union’s grievances do not establish that there were 

matters left unresolved by the FSIP decision that the Agency failed to 

negotiate in good faith. DOD II, 73 FLRA at 153; (JA 120-121, JA 133 ). 

That is because the allegedly “unresolved” matters either flow from the 

Union’s argument that the Panel lacked jurisdiction over Article 18, 

Section 3(f) or were not substantive. Thus, the grievances sought direct 

review of the Panel decision in a manner not authorized by law.

Indeed, the Authority properly found that the Panel’s decision 

addressed all remaining bargaining issues between the Union and 

Agency. Among those issues, FSIP addressed the Union’s claim that 

Article 18, Section 3(f) was covered by Article 11, Section 5(b), and 

determined the claim was unsupported. (JA 178.) Specifically, FSIP 

found that Article 11, Section 5(c), was different from Article 18, Section 

3(f) because:

Article 11, Section 5(c) — which the Union omits from its 

analysis — states that employees "on a seasonal work 

schedule will be compensated in accordance with Article 20, 

for all days required to be made up beyond the work year 

requirements as described in Article 18." (emphasis added). 

This language establishes that compensation under this 

Article goes to days "beyond" the work requirements already 

set forth in Article 18. And as noted earlier, the parties have 

already agreed to a 190-day work year in Article 18. Thus, it 

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is clear that Article 11 is meant to address those situations 

above the agreed to 190-day window, as the Agency argues. 

(JA 178.)

Having decided that the proposal in Article 18, Section 3(f) was 

not covered by Article 11, FSIP turned to the parties’ proposals 

concerning that provision. As the Union failed to provide any proposal 

regarding Article 18, Section 3(f), FSIP ordered the parties to adopt the 

agency’s proposal regarding Article 18, Section 3(f) and made 

determinations regarding all remaining bargaining issues. Congress 

intended determinations such as this to be unreviewable. See Brewer, 

735 F.2d at 1499. The Panel’s decision is therefore the final word on 

the subject and the Authority’s determination to that effect was 

reasonable. 

As the Panel’s decision addressed all remaining bargaining issues, 

the Authority properly determined the Agency submitted the MLA for 

agency-head review in accordance with §§ 7114 (related to agency-head 

review) and 7119 (related to the powers of FSIP). Section 7119(c)(5)(B) 

of the Statute permits the Panel to “take whatever action is necessary 

and not inconsistent” with the Statute to resolve impasses—including 

imposing collective bargaining terms on the parties without their 

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consent. The Authority has therefore long held that, in the context of 

impasse proceedings, a CBA is executed on the date the Panel issues its 

order. See Am. Fed’n of Gov’t Emps., Nat’l VA Council (“VA Council”), 

39 FLRA 1055, 1057 (1991). Thus, “the date on which the [Panel] 

decision was issued to, and served on, the parties constitutes the date 

on which the parties’ agreement was executed, for purposes of agency[-

]head review under [§] 7114(c) of the Statute.” Id. 

The Union’s argument that a successor MLA could not take effect 

until the parties agree to sign it ignores the structure and purpose of 

statutory provisions concerning FSIP. FSIP proceedings are expressly 

designed for situations, such as this, where there is no agreement 

between the parties. Permitting a party to side-step a FSIP decision by 

simply refusing to sign an agreement, would reward that party for 

refusing to comply with a FSIP decision and undermine the entire 

statutory scheme. The Authority correctly refused to permit such an 

abrogation of the Statute in this case, as it has done in the past. See

Am. Fed'n of Gov't Emps. AFL-CIO Loc. 1815 (“AFGE, Loc. 1815”), 69 

FLRA 309, 309 & 320 (2016) (“If, by refusing to sign the deal it had 

already initialed, the Union could successfully prevent the execution of 

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the CBA, a party would be rewarded for its own unlawful conduct. . . . It 

was for just this sort of case that the Authority reserved the possibility 

of considering an agreement executed without requiring it to be 

signed.”).

The Union’s remaining arguments, that the Authority’s decisions 

overturned its own precedent and that the decisions conflicted with 

arguments that it made to U.S. District Courts in relation to FSIP 

appointment clause claims, are without merit. As the Authority 

clarified in DOD II, 73 FLRA at 152 n.32 & 153, “the majority decision 

does not limit the methods by which a union can challenge matters 

pertaining to an order by the Panel and should not be viewed as such. 

This case addresses only the statutory framework for ‘review of Panel 

orders’ and does not pertain to the types of ULPs described by the 

concurrence.” DOD II, 73 FLRA at 152. This meant that the Union’s 

claims fail not because of the form or forum in which those claims were 

made. They fail because they are a direct attack on the substance of the 

FSIP decision, which is precluded by the Statute. And the Authority 

has never held, nor has it argued, that such direct attacks are lawful.

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Based on the foregoing, the Authority’s decisions were neither 

arbitrary nor capricious. This Court should therefore dismiss or deny 

the Petition to Review. 

STANDARD OF REVIEW

This Court “reviews the Authority’s interpretation of the [Statute] 

under the two-step framework announced in [Chevron USA Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984)]” 

because “Congress has clearly delegated to the Authority the 

responsibility in the first instance to construe the [Statute].” Nat’l

Treasury Emps. Union v. FLRA (“NTEU 2014”), 754 F.3d 1031, 1041 

(D.C. Cir. 2014) (alteration in original) (quotation omitted). Under 

Chevron step one, the Court considers “whether Congress has spoken 

directly to the precise question at issue.” Id. at 1042. If a law is silent 

or ambiguous, this Court moves to step two. Id. 

At Chevron step two, “‘the question for the [C]ourt is whether the 

agency’s interpretation is based on a permissible construction of the 

[S]tatute in light of its language, structure, and purpose.’” Id. at 1042 

(quoting Am. Fed’n of Govt’ Emps. v. Chao, 409 F.3d 377, 384 (D.C. Cir. 

2005)). The Court “need not conclude that the Authority’s 

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33

interpretation of the Statute is ‘the only one it permissibly could have 

adopted,’” id. (quoting Chevron, 467 U.S. at 843 n.11), or “‘even the 

interpretation deemed most reasonable’” by the Court, id. (quoting 

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009)). On the 

contrary, the Court will “defer to an agency’s interpretation of a statute 

so long as it is reasonable.” Id. (citations omitted). 

Chevron step two analysis “overlaps with” the Administrative 

Procedure Act’s arbitrary and capricious standard. Shays v. Fed. 

Election Comm’n, 414 F.3d 76, 96 (2005) (quotation omitted). “Under 

this highly deferential standard of review, the court presumes the 

validity of agency action and must affirm unless the [Authority] failed 

to consider relevant factors or made a clear error in judgment[.]” Cellco 

P’ship v. FCC, 357 F.3d 88, 93-94 (D.C. Cir. 2004) (internal quotation 

marks and citations omitted). 

Thus, Courts uphold Authority decisions unless they are 

“arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law.” NTEU 2014, 754 F.3d at 1041 (quoting Am. 

Fed’n of Gov’t Emps., Loc. 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 

1998)); see also5 U.S.C. § 7123(c) (incorporating Administrative 

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34

Procedure Act standards of review). The scope of such review is narrow. 

See, e.g., Am. Fed’n of Gov’t Emps., Loc. 2303 v. FLRA, 815 F.2d 718, 

721-22 (D.C. Cir. 1987) (citing Bowman Transp., Inc. v. Arkansas-Best 

Freight Sys., Inc., 419 U.S. 281, 285-86 (1974)). 

ARGUMENT

I. The Authority reasonably set aside the Arbitrator’s 

award because it was contrary to law.

The Authority properly set aside the Arbitrator’s award because 

the Union’s grievances and the arbitration award constituted direct 

attacks on the Panel’s decision. This is apparent from the Union’s 

second grievance, the Union’s arguments concerning the grievance, and 

the Arbitrator’s award. As the grievances and arbitration award were 

direct attacks on the Panel decisions, denial of the Petition is 

appropriate under Chevron step one because, “Congress has spoken 

directly to the precise question at issue” in this case. Shays, 414 F.3d at 

96. Specifically, Congress clearly intended to preclude both the 

Authority and Courts from directly reviewing Panel decisions. Brewer, 

735 F.2d at 1497 & n.9.

But even if the law on this point were ambiguous—and it is not—

the Authority should prevail on Chevron step two because the 

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Authority’s interpretation and application of § 7119 was reasonable. 

First, the Authority set the arbitration award aside because the 

Arbitrator based his decision on the erroneous legal conclusion that he 

had the power to review a FSIP decision. 72 FLRA at 603 & n.18.3 The 

Authority did not set aside the Arbitrator’s award based on his factual 

findings—the Union’s arguments to the contrary (Br. 33-41) 

notwithstanding. Second, the “unresolved issues” that the Union claims 

existed after the FSIP decision were addressed by the FSIP decision—

they were only “unresolved” to the extent that the Union refused to 

accept the FSIP decision as binding. 

A. The Union’s grievances, and the Arbitrator’s award, 

were direct attacks on the FSIP decision.

The Union’s grievances and the Arbitrator’s award were direct, 

not collateral, attacks on the FSIP decision because they were aimed at 

overturning the FSIP decision. To the extent the grievances alleged 

 

3 The Union’s citation to Department of Army Corps Engineers, 64 FLRA 

405 (2010) and American Federal of Government Employees, Local 3254, 

73 FLRA 325 (2022), for the proposition that the Authority defers to 

arbitrator factual findings concerning a CBA (Br. 33) is thus inapposite. 

Department of Energy, Office of Science & Technical Information, 63 

FLRA 219, 221 (2009), which the Union cites for the proposition that 

arbitrators do not have to set forth their specific factual findings in 

their decisions (Br. 38-39) is inapplicable for the same reason.

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36

that the Agency engaged in wrongdoing, these allegations were all 

premised on the illegality of the FSIP decision. The Arbitrator lacked 

the authority to decide whether the Panel erred by imposing a 

permissive subject of bargaining. In so holding, the Authority relied on 

longstanding precedent holding that Congress did not intend for Panel 

orders to be directly reviewable.

Congress created the Panel to resolve impasses without the need 

for strikes, which are prohibited in federal-sector employment. See 124 

Cong. Rec. H. 9698 (daily ed. Sept. 13, 1978) (discussing the Statute’s 

effect on 5 U.S.C. § 7311 and 18 U.S.C. § 1918, which bar federal 

worker strikes). The Panel was designed by Congress to serve “as a 

forum ‘of last resort in the speedy resolution of disputes’ between a 

federal agency and the exclusive representatives of its employees ‘after 

negotiations have failed.’” NATCA 2006, 437 F.3d at 1257-58 (quoting 

Brewer, 735 F.2d at 1501). In order to ensure “swift and final Panel 

authority” Congress provided that FSIP decisions are not subject to 

direct review by the Authority or this Court. Brewer, 735 F.2d at 1497 

& n.9. “While § 7123 specifically provides for judicial review of orders 

by the Authority, there is no provision for such review of Panel orders, 

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37

and Panel orders are not appealable even to the Authority.” Id. at 1499 

(emphasis in the original).

Rather parties may challenge the circumstances surrounding a 

Panel decision through ULP proceedings. Id.; AFGE 1985, 778 F.2d at 

854. In other words, the Statute only permits collateral attacks on 

decisions. However, this Court has held that claims are not wholly 

collateral if they serve as the “vehicle by which” a party seeks to 

prevail. Jarkesy v. Secs. & Exch. Comm’n, 803 F.3d 9, 23 (D.C. Cir. 

2015) (citing Elgin v. Dep't of Treasury, 567 U.S. 1, 21-22 (2012)). 

Here, the Union’s ULP claims were the vehicle by which the 

Union directly attacked the Panel decision. The Union’s grievance, 

post-hearing briefs, and the Arbitrator’s award all demonstrate that the 

Union’s primary target was the Panel decision. DOD I, 72 FLRA at 

603. The Union claimed the Agency’s compliance with an allegedly 

unlawful Panel decision created a cause of action. Such a claim can 

only be characterized as seeking direct review of the Panel’s decision. 

Highlighting the centrality of the Union’s direct attack on the 

Panel’s decision to its claims, the Union specifically stated in the second 

grievance that it “would not execute a final agreement until the parties 

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38

have finalized the unsigned [a]rticles and resolved the dispute over [the 

Panel's] jurisdiction . . . to adopt the Agency’s proposed Article 18, 

[S]ection 3(f).” Id. at 603 & n.25. The Authority found that the Union’s 

challenge of the Panel decision continued “before the arbitrator” as the 

Union “contested the Panel’s imposition of Article 18, Section 3(f) by 

repeatedly claiming the Panel ‘lacked jurisdiction’ or ‘exceeded its 

authority.’” Id. at 603 & nn.27 & 28. 

The Union’s second grievance and arguments to the Arbitrator 

thus laid the basis for the Arbitrator’s finding that “FSIP should not 

have issued a decision ordering the parties to accept the Agency’s 

proposed version of Article 18, Section 3(f), as it was a permissive 

subject of bargaining . . . the Union had a right not to accept FSIP’s 

order. . . . , and the Union was within its rights to withdraw its 

acceptance of Article 18, Section 1(a) under the parties’ Ground Rules.” 

(JA 21-22.) These determinations are the core and primary substance 

of the Arbitrator’s award, and all other conclusions in the decision flow 

from them. That is why the Authority concluded that the Arbitrator’s 

award constituted a direct attack on the FSIP decision. 

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The grievances also demonstrate that the Union only attacked the 

Agency’s actions to the extent that the Agency attempted to comply 

with the FSIP decision. As then-Chairman DuBester observed, the 

Union did not claim that the Agency had unlawfully negotiated a 

permissive subject to impasse. DOD II, 73 FLRA at 153; JA 120-121, 

JA 133. Instead, it claimed that Agency had unlawfully submitted the 

MLA for Agency Head review and allegedly repudiated the former MLA 

while the parties “resolved the dispute over FSIP’s jurisdiction” in its 

decision. (JA 133; JA 120-21.) Similarly, the Union’s grievances do not 

establish that there were matters left unresolved by the FSIP decision 

that the Agency failed to negotiate in good faith. DOD II, 73 FLRA at 

153; (JA 120-121, JA 133 ). As discussed at greater length below, that 

is because the matters that the Union claims were “unresolved” were 

either the result of the Union’s challenges of the FSIP decision or were 

not substantive. The grievances therefore demonstrate that the Union’s 

claims depended on persuading the Arbitrator to directly review the 

Panel’s analysis and conclude that the Panel lacked jurisdiction over 

Article 18, Section 3(f).

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The Union’s ULP proceedings served as a “vehicle by which” the 

Union sought to appeal the Panel’s decision resolving the parties’ 

impasse regarding Article 18, Section 3(f) and thus constituted a direct 

attack on the Panel decision. As FSIP decisions are final, binding, and 

not subject to direct review, the Authority properly set aside the 

Arbitrator’s award as contrary to § 7119.4

B. The Authority correctly found that the FSIP decision 

resolved all outstanding issues, and that the Union’s 

claims to the contrary merely reflect its attempts to 

overturn the FSIP decision.

The Union’s arguments that there were unresolved issues 

following the issuance of the FSIP decision (Br. 33-41) are attempts to 

obscure the reality that its ULP claims were direct attacks on the FSIP 

decision. The truth is that the FSIP decision resolved all outstanding 

 

4 The Union’s reliance on National Labor Relations Board (“NLRB”), 72 

FLRA 334 (2021) is unavailing because that case is distinguishable from 

this case. In NLRB, the Authority determined, in relevant part, that 

“the Arbitrator is authorized to determine the legality of the Agency’s 

actions in bringing the allegedly permissive subject to FSIP.” 72 FLRA 

at 339 (emphasis added). Here, the Union’s ULP proceedings challenged 

the validity of the Panel decision by claiming the Panel lacked 

jurisdiction over Article 18, Section 3(f), not the Agency’s actions in 

bringing Article 18, Section 3(f) to the Panel. 

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unresolved issues related to the MLA, and that the alleged outstanding 

issues related to the Union’s attempt to overturn the FSIP decision.

i. The FSIP decision resolved all outstanding issues

The Panel’s December 18, 2018, decision resolved all remaining 

bargaining issues related to the MLA. 

At the time the Union and the Agency provided written 

submissions to FSIP, there were 10 matters over which the Union and 

the Agency could not reach an agreement. (JA 173.) FSIP considered 

each of those matters including the parties’ dispute concerning Article 

18, Section 3(f). The Union argued to FSIP that Article 18, Section 3(f) 

was covered by Article 11, Section 5. (JA 176-77.) 

Resolution of the legal issues related to Article 18, Section 3(f) was 

significant because it affected FSIP’s jurisdiction over the provision. If 

the substance of a proposed CBA provision overlaps with the substance 

of an existing provision, the proposed provision is deemed to be “covered 

by” the existing provision. AFGE, Loc. 3937, 64 FLRA at 21-22. A 

proposal that is covered by an existing provision of a contract cannot be 

negotiated to impasse. Id. Consequently, if the proposal is covered by 

another provision, FSIP does not have jurisdiction over that proposal, 

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42

because FSIP has jurisdiction only over matters that have been 

negotiated to impasse. 

In this case FSIP, however, determined Article 18, Section 3(f) 

was not covered by Article 11. (JA 178.) FSIP therefore found that it 

had jurisdiction over resolution of the proposal. (JA 178.) Because the 

Union failed to provide any proposal regarding Article 18, Section 3(f), 

FSIP ordered the parties to adopt the agency’s proposal regarding 

Article 18, Section 3(f). (JA 178.) FSIP then made determinations 

regarding all remaining issues. (JA 174-175.) 

At that point, there were no other bargaining issues left 

outstanding. As described more fully below, the only bargaining issues 

that existed after the FSIP decision were those the Union created by 

refusing to accept the decision. 

ii. The Union created disputes resolved by the FSIP 

decision—it did not engage in substantive 

negotiations after that decision.

The Union’s contention that negotiations continued after the FSIP 

rendered its decision (Br. 38-39) are without merit. The Authority 

addressed this contention in both DOD I, 72 FLRA at 604 and DOD II, 

73 FLRA at 151. In his twenty-page award, the Arbitrator never 

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mentioned unresolved issues other than those springing from the 

Union’s continued insistence that the Panel did not have jurisdiction 

over Article 18, Section 3(f). (JA 7-26.) That question had already been 

answered by the Panel—and the Panel’s decision could not be directly 

reviewed by the Authority or this Court—let alone an Arbitrator.

The Union’s argument that the arbitration award’s silence 

regarding unresolved bargaining issues should be interpreted to mean 

that there were possibly other outstanding bargaining issues (Br. 38-39) 

strains the text of the award. A more natural reading of the award 

would be that the other alleged “unresolved” terms were not the subject 

of substantial negotiations after the FSIP decision. That is borne out by 

the facts surrounding the two other terms the Union claims were 

“unresolved.” (Br. 39-40.)

The Union claims that Article 18, Section 1(a) was one such term. 

(Br. 39-40.) But as the Authority found, “the Arbitrator's conclusion 

that the Union properly withdrew from Article 18, Section 1(a) hinged 

on the erroneous conclusion that Article 18, Section 3(f) was 

unenforceable.” DOD I, 72 FLRA at 604. Thus, the term was only 

“unresolved” to the extent that the Union challenged FSIP’s decision.

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With respect to Article 22, Section 3 (Br. 39-40), the Authority 

properly rejected as untimely the Union’s argument that the provision 

was unresolved at the time of the award. DOD I, 72 FLRA at 604 & 

n.45. But even if the Union had timely raised that argument, it would 

have been unavailing. The Agency notes in a January 10, 2019, email 

that a four-word difference in the opening paragraphs of Article 22, 

Section 3 was the only outstanding issue with respect to that term. (JA 

141-42.) The Agency’s February 11, 2019 email makes it clear that the 

four-word difference in Article 22, Section 3 was “course and 24-hour” 

versus “subject area or one (1) day” and that the parties opted to use the 

former language (JA 137). Clarifying the four-word difference between 

these two proposals can hardly be characterized as “substantive 

negotiations.”5 In light of these circumstances, it is not surprising that 

the Arbitrator did not mention Article 22, Section 3 as an unresolved 

issue. 

The three provisions: Article 18, Section 3(f); Article 18, Section 

1(a); and Article 22, Section 3, are the only provisions mentioned in the 

 

5 See AFGE, Loc. 1815, 69 FLRA at 309 (adopting ALJ’s finding that 

changes made after a Panel order were not substantive).

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Union’s brief and emails the Union claims reflected communications the 

parties had concerning “outstanding issues” in January 2019. (Br. 39-

41; JA 137-142.)6 Thus, even addressing the Union’s argument on its 

own terms, the Authority correctly concluded that “there were no 

unresolved bargaining issues after the Panel issued its order.” DOD I, 

72 FLRA at 604. 

As the Authority reasonably found that there were no unresolved 

issues following the FSIP decision, denial of the Petition for Review is 

appropriate.

II. The Authority reasonably determined that agency-head 

review was appropriate after FSIP issued its decision.

The Authority properly found that the Agency lawfully submitted 

the MLA to the Agency Head for review pursuant to § 7114 of the 

Statute after the Panel resolved the remaining terms of the agreement 

under § 7119. The Union’s argument that agency-head review was 

inappropriate because the parties had not voluntarily executed the 

 

6 The emails also mention the need for a revised index (JA 139), but the 

Union has never alleged that was an unresolved issue.

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46

agreement (Br. 41-47), is contrary to the Authority’s long-established 

precedent. 

Section 7114 of the Statute permits agency-head review 30 days 

from the date an agreement is executed. The term “executed” is not 

defined by the Statute, so the issue of when an agreement has been 

executed cannot be resolved at Chevron step one. Cf. Shays, 414 F.3d at 

96. The Authority correctly held the default interpretation is that 

agreements are executed when they are signed by the parties. 72 FLRA 

at 604. However, as this Court noted in National Treasury Employees 

Union v. FLRA (“NTEU 2022”), 45 F.4th 121, 125 (D.C. Cir. 2022), a 

statutory directive may overcome a default rule that agreements 

require the mutual consent of parties. The Authority’s interpretation of 

the interplay of the statutory directives in Sections 7114 and 7119 is 

such a situation. 

As this Court observed in Brewer, parties appear before the Panel 

because they cannot come to an agreement. 735 F. 2d at 1499. In 

§ 7119, Congress empowered the Panel to impose terms on parties that 

they would not voluntarily choose. Giving parties the option whether to 

execute contracts containing Panel-imposed terms would unravel the 

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statutory scheme that Congress put in place when it gave the Panel the 

power to resolve impasses under § 7119. It would mean that an 

unwilling party could countermand a Panel decision under § 7119 and 

stop agency-head review under § 7114—rendering both provisions 

meaningless. And this case demonstrates what happens when a party 

believes that its signature trumps § 7119. 

The case at bar is not the first case where the Authority was faced 

with this type of recalcitrance. In AFGE, Loc. 1815, the union argued 

that a CBA did not become binding when a FSIP decision was rendered 

because additional terms were left to be argued. 69 FLRA at 309, 320. 

The Authority adopted an ALJ’s finding that the union’s claims were 

without merit. Specifically, “the Union here was unreasonably holding 

out its execution of the CBA in order to extract concessions it had 

already signed away. If, by refusing to sign the deal it had already 

initialed, the Union could successfully prevent the execution of the 

CBA, a party would be rewarded for its own unlawful conduct” in 

refusing to be bound by the Panel decision at issue in that case. Id. at 

320. “It was for just this sort of case that the Authority reserved the 

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possibility of considering an agreement executed without requiring it to 

be signed.” Id. 

This is why the Authority has found that the imposition of a CBA 

on the parties by a Panel order triggers the 30-day period for agencyhead review under § 7114(c) by operation of law. DOD I, 72 FLRA at 

604 (citing AFGE, Loc. 1815, 69 FLRA at 318; VA Council, 39 FLRA at 

1057); see also Pat. Off. Pro. Ass'n, 41 FLRA 795, 804 (1991) (agreement 

deemed executed for the purpose of agency head review 30 days after 

“last portion of the interest arbitrator's award was issued”); Int’l Org. of 

Masters, Mates & Pilots, 36 FLRA 555, 559–62 (1990) (where interest 

arbitrator’s decision encompassed the parties’ entire agreement, the 

date of the arbitrator’s award was the date of execution for agency head 

review); Am. Fed’n of Gov’t Emps., Nat’l VA Council, 40 FLRA 195, 201 

(1991) (where no further actions were necessary for the parties to 

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“execute” the Panel decision, CBA became final and subject to agency 

head review as of the date the Panel decision). 7

The Agency lawfully submitted the successor MLA to the Agency 

Head for review within 30 days of the Panel’s decision, as required by 

§ 7114(c)(2) of the Statute. Accordingly, the Authority’s determination 

that the Agency properly submitted the successor MLA for agency-head 

review was neither arbitrary nor capricious.

III. The Authority’s decisions do not reflect a change in 

Authority precedent or positions.

As described more fully above, the Authority correctly found that 

the Union’s ULP proceedings constituted an impermissible direct 

appeal of the Panel’s December 14, 2018, decision. But the Authority’s 

decisions did not limit the methods by which parties may collaterally 

attack FSIP decisions going forward. Nor did the Authority abandon 

the positions it had previously taken before the U.S. District Court. 

 

7 In its brief, the Union contends the application of DOD I cannot be 

reconciled with the Authority’s decisions in Association of Civilian 

Technicians, Kentucky Long Rifle Chapter, 70 FLRA 968 (2018) and 

Fort Bragg Association of Teachers, 44 FLRA 852, 857-58 (1992), in 

which the Authority reaffirmed that “parties may set the conditions on 

the execution of their agreements before triggering agency-head 

review.” (Br. 42) Once again, these cases are distinguishable because 

neither case involved a Panel decision.

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The Union’s arguments to the contrary are without merit and should be 

rejected by this Court. 

A. The Authority’s decisions are consistent with the 

statutory framework and do not limit the means by 

which a union may challenge matters pertaining to a 

Panel order.

The Authority’s decisions in DOD I and DOD II are consistent 

with the statutory framework for judicial review of Panel decisions and 

applicable precedent. The Union’s claims that DOD I and DOD II 

unfairly curtail union options for challenging FSIP decisions while 

leaving open agency options for challenging those decisions (Br. 56-58), 

ignore the text and legislative history of the Statute, this Court’s 

precedent, and the text of the Authority’s decision in DOD II. 

As previously noted, the framework for judicial review of Panel 

decisions is statutory. Under § 7119, a final Panel order “shall be 

binding on [both] parties during the term of the agreement, unless the 

parties agree otherwise.” 5 U.S.C. § 7119(c)(5)(C). Panel orders are not 

directly reviewable by the Authority or the courts. Brewer, 735 F.2d at 

1499. Instead, Section 7116(a)(6) provides that it is an ULP for an 

agency or a labor organization “to fail or refuse to cooperate in impasse 

procedures and impasse decisions.” 5 U.S.C. § 7116(a)(6). Therefore, a 

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party that fails or refuses to comply with a Panel order may be charged 

with an ULP. However, a party charged with such an ULP may defend 

the lawfulness of its noncompliance by alleging the unlawfulness of the 

Panel’s order, i.e., seek indirect review of the validity of the Panel’s 

order as part of its ULP defense. 

The Union contends there is “no incentive for an agency to file a 

ULP charge that would provide a union with an opportunity to 

challenge the Panel’s decision.” (Br. 57.) However, then-Chairman 

DuBester’s concurrence and then-Member Grundmann’s footnote, there 

are other methods by which a union can challenge matters pertaining to 

a Panel order. DOD II, 73 FLRA at 152 & n.32, 153. Then-Chairman 

DuBester’s concurrence, in which then-Member Grundmann joined, 

specifically states that “a union may challenge matters pertaining to a 

Panel decision by bringing an unfair labor practice charge alleging that 

an agency action related to the Panel proceeding constituted an unfair 

labor practice.” Id. at 153. The decision declined to list all specific ways 

that a union could allege ULPs. It noted, however, that the Union could 

have filed a ULP charge alleging that the Agency bargained to impasse 

over permissive subjects of bargaining. Id. As described more fully 

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above, instead of accusing the Agency of unlawfully bargaining a 

permissive subject to impasse, (See JA 120-121, 133-134.) the Union 

asked an arbitrator to find that the Panel unlawfully asserted 

jurisdiction over a permissive subject. (JA 133.)

Even if there were a disparity in the options unions and agencies 

have for challenging FSIP decisions, that does not mean that the 

Authority erred in its decisions. Indeed, this Court held in Brewer:

We recognize, however, the shortcomings of the unfair labor 

practices proceeding as the exclusive means for assuring 

judicial review of Panel orders. . . . [I]n many situations—for 

instance, where an employee benefit rather than a burden is 

at issue—it is difficult to see what the union could do to 

challenge the disputed contract term, since it may not resort 

to a “strike, work stoppage, or slowdown” under pain of 

decertification. See id. § 7120(f).

Presented with such a choice, it is most likely that a union 

would often go along with the contract, and relinquish the 

opportunity for judicial review, rather than risk such 

calamities. Perhaps Congress wished to pay this price in 

return for swift and final Panel authority. In any event, our 

decision today adheres to the language and legislative 

history of the Act. Of course, Congress remains free to alter 

the scheme of review as it sees fit.

Brewer, 735 F.2d at 1502 n.9. The Authority’s decisions are consistent 

with Brewer and do “not limit the methods by which a union can 

challenge matters pertaining to an order by the Panel and should not be 

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viewed as such.” DOD II, 73 FLRA at 152 n.32. Denial of the Petition 

for Review is therefore appropriate. 

B. The Authority’s decisions are consistent with 

arguments it made in District Court litigation 

concerning constitutional challenges to the 

appointment of FSIP Members.

The District Court briefs cited by the Union are consistent with 

the Authority’s decisions in DOD I and DOD II. The Union’s claims of 

judicial estoppel (Br. 59) are therefore without merit. 

The doctrine of judicial estoppel provides, “where a party assumes 

a certain position in a legal proceeding, and succeeds in maintaining 

that position, he may not thereafter, simply because his interests have 

changed, assume a contrary position[.]” Temple Univ. Hosp., Inc. v. 

NLRB, 929 F.3d 729, 733 (D.C. Cir. 2019) (quoting New Hampshire v. 

Maine, 532 U.S. 742, 749 (2001)). This Court has set forth three key 

factors that “inform the decision” whether “the balance of equities” 

favors applying the doctrine: (1) whether the party’s later position is 

“clearly inconsistent” with its earlier position; (2) “whether the party 

has succeeded in persuading a court to accept that party’s earlier 

position, so that judicial acceptance of an inconsistent position in a later 

proceeding would create the perception that either the first or the 

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second court was misled”; and (3) “whether the party seeking to assert 

an inconsistent position would derive an unfair advantage or impose an 

unfair detriment on the opposing party if not estopped.” Id. at 733. 

 The first factor weighs against finding judicial estoppel in this 

case. The Union contends, and the Authority denies, that its decisions 

in DOD I and DOD II are inconsistent with briefs that the Authority 

filed in Association of Administrative Law Judges v. Federal Service 

Impasses Panel (“AALJ”), Case No. 1:20-cv-01026-ABJ and National 

Weather Service Employees Organization v. Federal Services Impasses 

Panel (“NWSEO”), Case 1:20-cv-1563-TJK. 

In both cases, the plaintiff unions challenged FSIP decisions in 

U.S. District Court on the ground that the Panel was unlawfully 

composed of members appointed in violation of the Constitution’s 

Appointments Clause. The Authority and intervenor government 

agencies moved to dismiss both cases on the ground that the plaintiff 

unions failed to follow the statutory review procedure whereby unions 

could seek indirect review of Panel decisions through ULP processes 

and from there (if necessary) a court of appeals. AALJ, 1:20-cv-01026-

ABJ, ECF No. 22 at 21; NWSEO, 1:20-cv-1563-TJK, ECF No. 13 at 22.

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In both cases, the Authority and intervenor government agencies 

addressed concerns as to whether the unions had meaningful options to 

affirmatively exhaust their constitutional claims through ULP 

proceedings against their agencies.8 And they argued that the unions 

might be able to bring affirmative ULP claims against their agencies. 

The arguments in AALJ and NWSEO are consistent with the 

Authority’s decisions in this case. Both the briefs and DOD II 

 

8 In AALJ, 1:20-cv-01026-ABJ, ECF No. 22 at 21, the Motion to Dismiss 

argued in relevant part: 

[I]f SSA declines to pursue an ULP charge or grievance against 

AALJ, it still may have an open path to judicial review. AALJ 

itself may attempt to file a charge or grievance against SSA 

based on SSA simply imposing terms in a new CBA in the face 

of AALJ’s refusal to abide by the Panel’s decision. To the 

extent AALJ believes that any Panel-imposed provisions are 

contrary to law, it may argue as much in the ensuing ULP 

proceeding. Additionally, AALJ could seek to reopen 

bargaining with SSA on the Panel-imposed articles, and, if SSA 

refuses to respond, then file an ULP charge or grievance.

Similarly, in NWSEO, 1:20-cv-1563-TJK, ECF No. 13 at 22 the Motion to 

Dismiss argued: 

The Union may have affirmative options for bringing an ULP 

charge as well, where it could raise the same arguments against 

the validity of the Panel decision. Those options may depend on 

how the parties’ ongoing negotiations and finalization of a CBA 

evolve.

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acknowledged that the Union was not limited to waiting for the Agency 

to file a ULP charge against it. Indeed, the Authority affirmed in DOD 

II that, “the majority decision does not limit the methods by which a 

union can challenge matters pertaining to an order by the Panel and 

should not be viewed as such.” 73 FLRA at 152 n.32 & 153.

But in acknowledging the variety of fact-specific opportunities 

unions may encounter for challenging matters pertaining to a Panel 

decision, the Authority has never conceded that unions may directly 

challenge FSIP decisions. It could not, because doing so would overturn 

nearly 40 years of this Court’s and the Authority’s precedent. Brewer, 

735 F.2d at 1499 (remarking that Panel orders are “not appealable 

even to the Authority”); U.S. Army Corps of Eng’rs, Kan. City Dist., 

Kan. City, Mo., 16 FLRA at 459 (“a party to a proceeding before the 

FSIP may not appeal directly to the Authority”); State of N.Y., 2 FLRA 

at 188-89 (“the Statute . . . does not sanction review of a Panel Decision 

and Order, except through the unfair labor practice procedures set forth

in the Statute. . .”).

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As the Authority’s positions in this case and in prior litigation are 

consistent, the Union’s claim of judicial estoppel fails at step one of the 

test.

CONCLUSION

For the foregoing reasons, the Authority respectfully requests that 

the Court dismiss the Union’s Petition for Review because it seeks 

direct review of the Panel’s decision or deny the Petition for Review in 

its entirety. 

Respectfully submitted,

/s/ Rebecca J. Osborne

REBECCA J. OSBORNE

Acting Solicitor

Federal Labor Relations Authority

1400 K Street, NW

Washington, DC 20424

771-444-5778

February 10, 2023

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FED. R. APP. P. RULE 32(A) CERTIFICATION

Pursuant to Fed. R. App. P. 32(a)(7)(B)(i), I hereby certify that this 

brief is double-spaced (except for extended quotations, headings, and 

footnotes) and is proportionally spaced, using Century Schoolbook font, 

14-point type. Based on a word count of my word processing system, 

this brief contains fewer than 13,000 words. It contains 11,276 words 

excluding exempt material. 

/s/ Rebecca J. Osborne

Rebecca J. Osborne

Acting Solicitor 

Federal Labor Relations Authority

CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of February, 2023, I 

electronically filed the foregoing with the Clerk of the Court for the 

United States Court of Appeals for the District of Columbia Circuit by 

using the CM/ECF system. I also certify that the foregoing document is 

being served on counsel of record and that service will be accomplished 

by the CM/ECF system. 

/s/ Rebecca J. Osborne

Rebecca J. Osborne

Acting Solicitor 

Federal Labor Relations Authority

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ADDENDUM

Relevant Statutes and Regulations

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TABLE OF CONTENTS

Authority Page

STATUTES................................................................................................2

5 U.S.C. § 7105. Powers and duties of the Authority ...........................2

5 U.S.C. § 7114. Representation rights and duties...............................5

5 U.S.C. § 7116. Unfair labor practices.................................................8

5 U.S.C. § 7118(a). Prevention of unfair labor practices ....................11

5 U.S.C. § 7119. Negotiation impasses; Federal Service Impasses 

Panel ....................................................................................................12

5 U.S.C. § 7123(a), (c). Judicial review; enforcement .........................14

5 U.S.C. § 7311. Loyalty and striking .................................................16

18 U.S.C. § 1918. Disloyalty and asserting the right to strike against 

the Government...................................................................................16

REGULATION ........................................................................................17

5 C.F.R. § 2471.6. Investigation of request; Panel procedures; 

approval of binding arbitration. ..........................................................17

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STATUTES

5 U.S.C. § 7105. Powers and duties of the Authority

(a) (1) The Authority shall provide leadership in establishing policies 

and guidance relating to matters under this chapter, and, except 

as otherwise provided, shall be responsible for carrying out the 

purpose of this chapter.

(2) The Authority shall, to the extent provided in this chapter and 

in accordance with regulations prescribed by the Authority--

(A) determine the appropriateness of units for labor 

organization representation under section 7112 of this title;

(B) supervise or conduct elections to determine whether a 

labor organization has been selected as an exclusive 

representative by a majority of the employees in an 

appropriate unit and otherwise administer the provisions of 

section 7111 of this title relating to the according of exclusive 

recognition to labor organizations;

(C) prescribe criteria and resolve issues relating to the 

granting of national consultation rights under section 7113

of this title;

(D) prescribe criteria and resolve issues relating to 

determining compelling need for agency rules or regulations 

under section 7117(b) of this title;

(E) resolves issues relating to the duty to bargain in good 

faith under section 7117(c) of this title;

(F) prescribe criteria relating to the granting of consultation 

rights with respect to conditions of employment under 

section 7117(d) of this title;

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(G) conduct hearings and resolve complaints of unfair labor 

practices under section 7118 of this title;

(H) resolve exceptions to arbitrator’s awards under section 

7122 of this title; and

(I) take such other actions as are necessary and appropriate 

to effectively administer the provisions of this chapter.

(b) The Authority shall adopt an official seal which shall be judicially 

noticed.

(c) The principal office of the Authority shall be in or about the District 

of Columbia, but the Authority may meet and exercise any or all of its 

powers at any time or place. Except as otherwise expressly provided by 

law, the Authority may, by one or more of its members or by such 

agents as it may designate, make any appropriate inquiry necessary to 

carry out its duties wherever persons subject to this chapter are located. 

Any member who participates in the inquiry shall not be disqualified 

from later participating in a decision of the Authority in any case 

relating to the inquiry.

(d) The Authority shall appoint an Executive Director and such regional 

directors, administrative law judges under section 3105 of this title, and 

other individuals as it may from time to time find necessary for the 

proper performance of its functions. The Authority may delegate to 

officers and employees appointed under this subsection authority to 

perform such duties and make such expenditures as may be necessary.

(e) (1) The Authority may delegate to any regional director its 

authority under this chapter--

(A) to determine whether a group of employees is an 

appropriate unit;

(B) to conduct investigations and to provide for hearings;

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(C) to determine whether a question of representation exists 

and to direct an election; and

(D) to supervise or conduct secret ballot elections and certify 

the results thereof.

(2) The Authority may delegate to any administrative law judge 

appointed under subsection (d) of this section its authority under 

section 7118 of this title to determine whether any person has 

engaged in or is engaging in an unfair labor practice.

(f) If the Authority delegates any authority to any regional director or 

administrative law judge to take any action pursuant to subsection (e) 

of this section, the Authority may, upon application by any interested 

person filed within 60 days after the date of the action, review such 

action, but the review shall not, unless specifically ordered by the 

Authority, operate as a stay of action. The Authority may affirm, 

modify, or reverse any action reviewed under this subsection. If the 

Authority does not undertake to grant review of the action under this 

subsection within 60 days after the later of--

(1) the date of the action; or

(2) the date of the filing of any application under this subsection 

for review of the action;

the action shall become the action of the Authority at the end of such 

60-day period.

(g) In order to carry out its functions under this chapter, the Authority 

may--

(1) hold hearings;

(2) administer oaths, take the testimony or deposition of any 

person under oath, and issue subpoenas as provided in section 

7132 of this title; and

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(3) may require an agency or a labor organization to cease and 

desist from violations of this chapter and require it to take any 

remedial action it considers appropriate to carry out the policies of 

this chapter.

(h) Except as provided in section 518 of title 28, relating to litigation 

before the Supreme Court, attorneys designated by the Authority may 

appear for the Authority and represent the Authority in any civil action 

brought in connection with any function carried out by the Authority 

pursuant to this title or as otherwise authorized by law.

(i) In the exercise of the functions of the Authority under this title, the 

Authority may request from the Director of the Office of Personnel 

Management an advisory opinion concerning the proper interpretation 

of rules, regulations, or policy directives issued by the Office of 

Personnel Management in connection with any matter before the 

Authority.

5 U.S.C. § 7114. Representation rights and duties

(a) (1) A labor organization which has been accorded exclusive 

recognition is the exclusive representative of the employees in the 

unit it represents and is entitled to act for, and negotiate collective 

bargaining agreements covering, all employees in the unit. An 

exclusive representative is responsible for representing the 

interests of all employees in the unit it represents without 

discrimination and without regard to labor organization 

membership.

(2) An exclusive representative of an appropriate unit in an 

agency shall be given the opportunity to be represented at--

(A) any formal discussion between one or more 

representatives of the agency and one or more employees in 

the unit or their representatives concerning any grievance or 

any personnel policy or practices or other general condition 

of employment; or

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(B) any examination of an employee in the unit by a 

representative of the agency in connection with an 

investigation if--

(i) the employee reasonably believes that the 

examination may result in disciplinary action against 

the employee; and

(ii) the employee requests representation.

(3) Each agency shall annually inform its employees of their rights 

under paragraph (2)(B) of this subsection.

(4) Any agency and any exclusive representative in any 

appropriate unit in the agency, through appropriate 

representatives, shall meet and negotiate in good faith for the 

purposes of arriving at a collective bargaining agreement. In 

addition, the agency and the exclusive representative may 

determine appropriate techniques, consistent with the provisions 

of section 7119 of this title, to assist in any negotiation.

(5) The rights of an exclusive representative under the provisions 

of this subsection shall not be construed to preclude an employee 

from--

(A) being represented by an attorney or other representative, 

other than the exclusive representative, of the employee’s 

own choosing in any grievance or appeal action; or

(B) exercising grievance or appellate rights established by 

law, rule, or regulation;

except in the case of grievance or appeal procedures negotiated under 

this chapter.

(b) The duty of an agency and an exclusive representative to negotiate 

in good faith under subsection (a) of this section shall include the 

obligation--

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(1) to approach the negotiations with a sincere resolve to reach a 

collective bargaining agreement;

(2) to be represented at the negotiations by duly authorized 

representatives prepared to discuss and negotiate on any 

condition of employment;

(3) to meet at reasonable times and convenient places as 

frequently as may be necessary, and to avoid unnecessary delays;

(4) in the case of an agency, to furnish to the exclusive 

representative involved, or its authorized representative, upon 

request and, to the extent not prohibited by law, data--

(A) which is normally maintained by the agency in the 

regular course of business;

(B) which is reasonably available and necessary for full and 

proper discussion, understanding, and negotiation of 

subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or 

training provided for management officials or supervisors, 

relating to collective bargaining; and

(5) if agreement is reached, to execute on the request of any party 

to the negotiation a written document embodying the agreed 

terms, and to take such steps as are necessary to implement such 

agreement.

(c) (1) An agreement between any agency and an exclusive 

representative shall be subject to approval by the head of the agency.

(2) The head of the agency shall approve the agreement within 30 

days from the date the agreement is executed if the agreement is 

in accordance with the provisions of this chapter and any other 

applicable law, rule, or regulation (unless the agency has granted 

an exception to the provision).

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(3) If the head of the agency does not approve or disapprove the 

agreement within the 30-day period, the agreement shall take 

effect and shall be binding on the agency and the exclusive 

representative subject to the provisions of this chapter and any 

other applicable law, rule, or regulation.

(4) A local agreement subject to a national or other controlling 

agreement at a higher level shall be approved under the 

procedures of the controlling agreement or, if none, under 

regulations prescribed by the agency.

5 U.S.C. § 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice 

for an agency--

(1) to interfere with, restrain, or coerce any employee in the 

exercise by the employee of any right under this chapter;

(2) to encourage or discourage membership in any labor 

organization by discrimination in connection with hiring, tenure, 

promotion, or other conditions of employment;

(3) to sponsor, control, or otherwise assist any labor organization, 

other than to furnish, upon request, customary and routine 

services and facilities if the services and facilities are also 

furnished on an impartial basis to other labor organizations 

having equivalent status;

(4) to discipline or otherwise discriminate against an employee 

because the employee has filed a complaint, affidavit, or petition, 

or has given any information or testimony under this chapter;

(5) to refuse to consult or negotiate in good faith with a labor 

organization as required by this chapter;

(6) to fail or refuse to cooperate in impasse procedures and 

impasse decisions as required by this chapter;

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(7) to enforce any rule or regulation (other than a rule or 

regulation implementing section 2302 of this title) which is in 

conflict with any applicable collective bargaining agreement if the 

agreement was in effect before the date the rule or regulation was 

prescribed; or

(8) to otherwise fail or refuse to comply with any provision of this 

chapter.

(b) For the purpose of this chapter, it shall be an unfair labor practice 

for a labor organization--

(1) to interfere with, restrain, or coerce any employee in the 

exercise by the employee of any right under this chapter;

(2) to cause or attempt to cause an agency to discriminate against 

any employee in the exercise by the employee of any right under 

this chapter;

(3) to coerce, discipline, fine, or attempt to coerce a member of the 

labor organization as punishment, reprisal, or for the purpose of 

hindering or impeding the member's work performance or 

productivity as an employee or the discharge of the member's 

duties as an employee;

(4) to discriminate against an employee with regard to the terms 

or conditions of membership in the labor organization on the basis 

of race, color, creed, national origin, sex, age, preferential or 

nonpreferential civil service status, political affiliation, marital 

status, or handicapping condition;

(5) to refuse to consult or negotiate in good faith with an agency as 

required by this chapter;

(6) to fail or refuse to cooperate in impasse procedures and 

impasse decisions as required by this chapter;

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(7) (A) to call, or participate in, a strike, work stoppage, or 

slowdown, or picketing of an agency in a labor-management 

dispute if such picketing interferes with an agency's 

operations, or

(B) to condone any activity described in subparagraph (A) of 

this paragraph by failing to take action to prevent or stop 

such activity; or

(8) to otherwise fail or refuse to comply with any provision of this 

chapter.

Nothing in paragraph (7) of this subsection shall result in any 

informational picketing which does not interfere with an agency's 

operations being considered as an unfair labor practice.

(c) For the purpose of this chapter it shall be an unfair labor practice for 

an exclusive representative to deny membership to any employee in the 

appropriate unit represented by such exclusive representative except 

for failure--

(1) to meet reasonable occupational standards uniformly required 

for admission, or

(2) to tender dues uniformly required as a condition of acquiring 

and retaining membership.

This subsection does not preclude any labor organization from enforcing 

discipline in accordance with procedures under its constitution or 

bylaws to the extent consistent with the provisions of this chapter.

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(d) Issues which can properly be raised under an appeals procedure may 

not be raised as unfair labor practices prohibited under this section. 

Except for matters wherein, under section 7121(e) and (f) of this title, 

an employee has an option of using the negotiated grievance procedure 

or an appeals procedure, issues which can be raised under a grievance 

procedure may, in the discretion of the aggrieved party, be raised under 

the grievance procedure or as an unfair labor practice under this 

section, but not under both procedures.

(e) The expression of any personal view, argument, opinion or the 

making of any statement which--

(1) publicizes the fact of a representational election and 

encourages employees to exercise their right to vote in such 

election,

(2) corrects the record with respect to any false or misleading 

statement made by any person, or

(3) informs employees of the Government's policy relating to labormanagement relations and representation,

shall not, if the expression contains no threat of reprisal or force or 

promise of benefit or was not made under coercive conditions, (A) 

constitute an unfair labor practice under any provision of this chapter, 

or (B) constitute grounds for the setting aside of any election conducted 

under any provisions of this chapter.

5 U.S.C. § 7118(a). Prevention of unfair labor practices

(a) (1) If any agency or labor organization is charged by any person 

with having engaged in or engaging in an unfair labor practice, the 

General Counsel shall investigate the charge and may issue and cause 

to be served upon the agency or labor organization a complaint. In any 

case in which the General Counsel does not issue a complaint because 

the charge fails to state an unfair labor practice, the General Counsel 

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shall provide the person making the charge a written statement of the 

reasons for not issuing a complaint.

5 U.S.C. § 7119. Negotiation impasses; Federal Service Impasses 

Panel

(a) The Federal Mediation and Conciliation Service shall provide 

services and assistance to agencies and exclusive representatives in the 

resolution of negotiation impasses. The Service shall determine under 

what circumstances and in what manner it shall provide services and 

assistance.

(b) If voluntary arrangements, including the services of the Federal 

Mediation and Conciliation Service or any other third-party mediation, 

fail to resolve a negotiation impasse—

(1) either party may request the Federal Service Impasses Panel 

to consider the matter, or

(2) the parties may agree to adopt a procedure for binding 

arbitration of the negotiation impasse, but only if the procedure is 

approved by the Panel.

(c) (1) The Federal Service Impasses Panel is an entity within the 

Authority, the function of which is to provide assistance in 

resolving negotiation impasses between agencies and exclusive 

representatives.

(2) The Panel shall be composed of a Chairman and at least six 

other members, who shall be appointed by the President, solely on 

the basis of fitness to perform the duties and functions involved, 

from among individuals who are familiar with Government 

operations and knowledgeable in labor-management relations.

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(3) Of the original members of the Panel, 2 members shall be 

appointed for a term of 1 year, 2 members shall be appointed for a 

term of 3 years, and the Chairman and the remaining members 

shall be appointed for a term of 5 years. Thereafter each member 

shall be appointed for a term of 5 years, except that an individual 

chosen to fill a vacancy shall be appointed for the unexpired term 

of the member replaced. Any member of the Panel may be 

removed by the President.

(4) The Panel may appoint an Executive Director and any other 

individuals it may from time to time find necessary for the proper 

performance of its duties. Each member of the Panel who is not an 

employee (as defined in section 2105 of this title) is entitled to pay 

at a rate equal to the daily equivalent of the maximum annual 

rate of basic pay then currently paid under the General Schedule 

for each day he is engaged in the performance of official business 

of the Panel, including travel time, and is entitled to travel 

expenses as provided under section 5703 of this title.

(5) (A) The Panel or its designee shall promptly investigate any 

impasse presented to it under subsection (b) of this section. The 

Panel shall consider the impasse and shall either--

(i) recommend to the parties procedures for the 

resolution of the impasse; or

(ii) assist the parties in resolving the impasse through 

whatever methods and procedures, including 

factfinding and recommendations, it may consider 

appropriate to accomplish the purpose of this section.

(B) If the parties do not arrive at a settlement after 

assistance by the Panel under subparagraph (A) of this 

paragraph, the Panel may--

(i) hold hearings;

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(ii) administer oaths, take the testimony or deposition 

of any person under oath, and issue subpoenas as 

provided in section 7132 of this title; and

(iii) take whatever action is necessary and not 

inconsistent with this chapter to resolve the impasse.

(C) Notice of any final action of the Panel under this section 

shall be promptly served upon the parties, and the action 

shall be binding on such parties during the term of the 

agreement, unless the parties agree otherwise.

5 U.S.C. § 7123(a), (c). Judicial review; enforcement

(a) Any person aggrieved by any final order of the Authority other than 

an order under--

(1) section 7122 of this title (involving an award by an arbitrator), 

unless the order involves an unfair labor practice under section 

7118 of this title, or

(2) section 7112 of this title (involving an appropriate unit 

determination),

may, during the 60-day period beginning on the date on which the 

order was issued, institute an action for judicial review of the 

Authority’s order in the United States court of appeals in the 

circuit in which the person resides or transacts business or in the 

United States Court of Appeals for the District of Columbia. 

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(c) Upon the filing of a petition under subsection (a) of this section for 

judicial review or under subsection (b) of this section for enforcement, 

the Authority shall file in the court the record in the proceedings, as 

provided in section 2112 of title 28. Upon the filing of the petition, the 

court shall cause notice thereof to be served to the parties involved, and 

thereupon shall have jurisdiction of the proceeding and of the question 

determined therein and may grant any temporary relief (including a 

temporary restraining order) it considers just and proper, and may 

make and enter a decree affirming and enforcing, modifying and 

enforcing as so modified, or setting aside in whole or in part the order of 

the Authority. The filing of a petition under subsection (a) or (b) of this 

section shall not operate as a stay of the Authority’s order unless the 

court specifically orders the stay. Review of the Authority’s order shall 

be on the record in accordance with section 706 of this title. No objection 

that has not been urged before the Authority, or its designee, shall be 

considered by the court, unless the failure or neglect to urge the 

objection is excused because of extraordinary circumstances. The 

findings of the Authority with respect to questions of fact, if supported 

by substantial evidence on the record considered as a whole, shall be 

conclusive. If any person applies to the court for leave to adduce 

additional evidence and shows to the satisfaction of the court that the 

additional evidence is material and that there were reasonable grounds 

for the failure to adduce the evidence in the hearing before the 

Authority, or its designee, the court may order the additional evidence 

to be taken before the Authority, or its designee, and to be made a part 

of the record. The Authority may modify its findings as to the facts, or 

make new findings by reason of additional evidence so taken and filed. 

The Authority shall file its modified or new findings, which, with 

respect to questions of fact, if supported by substantial evidence on the 

record considered as a whole, shall be conclusive. The Authority shall 

file its recommendations, if any, for the modification or setting aside of 

its original order. Upon the filing of the record with the court, the 

jurisdiction of the court shall be exclusive and its judgment and decree 

shall be final, except that the judgment and decree shall be subject to 

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review by the Supreme Court of the United States upon writ of 

certiorari or certification as provided in section 1254 of title 28.

5 U.S.C. § 7311. Loyalty and striking

An individual may not accept or hold a position in the Government of 

the United States or the government of the District of Columbia if he--

(1) advocates the overthrow of our constitutional form of 

government;

(2) is a member of an organization that he knows advocates the 

overthrow of our constitutional form of government;

(3) participates in a strike, or asserts the right to strike, against 

the Government of the United States or the government of the 

District of Columbia; or

(4) is a member of an organization of employees of the 

Government of the United States or of individuals employed by 

the government of the District of Columbia that he knows asserts 

the right to strike against the Government of the United States or 

the government of the District of Columbia.

18 U.S.C. § 1918. Disloyalty and asserting the right to strike 

against the Government

Whoever violates the provision of section 7311 of title 5 that an 

individual may not accept or hold a position in the Government of the 

United States or the government of the District of Columbia if he--

(1) advocates the overthrow of our constitutional form of 

government;

(2) is a member of an organization that he knows advocates the 

overthrow of our constitutional form of government;

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(3) participates in a strike, or asserts the right to strike, against 

the Government of the United States or the government of the 

District of Columbia; or

(4) is a member of an organization of employees of the 

Government of the United States or of individuals employed by 

the government of the District of Columbia that he knows asserts 

the right to strike against the Government of the United States or 

the government of the District of Columbia;

shall be fined under this title or imprisoned not more than one year and 

a day, or both.

REGULATION

5 C.F.R. § 2471.6. Investigation of request; Panel procedures; 

approval of binding arbitration.

(a) Upon receipt of a request for consideration of an impasse, the Panel 

or its designee will promptly conduct an investigation, consulting when 

necessary with the parties and with any mediation service utilized. 

After due consideration, the Panel shall either:

(1) Decline to assert jurisdiction in the event that it finds that no 

impasse exists or that there is other good cause for not asserting 

jurisdiction, in whole or in part, and so advise the parties in 

writing, stating its reasons; or

(2) Assert jurisdiction and

(i) Recommend to the parties procedures for the resolution of 

the impasse; and/or

(ii) Assist the parties in resolving the impasse through 

whatever methods and procedures the Panel considers 

appropriate. The procedures utilized by the Panel may 

include, but are not limited to: informal conferences with a 

Panel designee; factfinding (by a Panel designee or a private 

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factfinder); written submissions; show cause orders; oral 

presentations to the Panel; and arbitration or mediationarbitration (by a Panel designee or a private arbitrator). 

Following procedures used by the Panel, it may issue a 

report to the parties containing recommendations for 

settlement prior to taking final action to resolve the impasse.

(b) Upon receipt of a request for approval of a binding arbitration 

procedure, the Panel or its designee will promptly conduct an 

investigation, consulting when necessary with the parties and with any 

mediation service utilized. After due consideration, the Panel shall 

promptly approve or disapprove the request, normally within five (5) 

workdays.

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