United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2023 Decided June 7, 2024

No. 22-1220

FEDERAL EDUCATION ASSOCIATION STATESIDE REGION,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

On Petition for Review of Decisions 

of the Federal Labor Relations Authority

Richard J. Hirn argued the cause for petitioner. With him 

on the briefs were Benjamin Hunter and Suzanne E. 

Summerlin.

Thomas Tso, Solicitor, Federal Labor Relations Authority, 

argued the cause for respondent. On the brief were Rebecca J. 

Osborne, Acting Solicitor, at the time the brief was filed, and 

Nariea K. Nelson, Attorney.

Before: HENDERSON and RAO, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.
2

KAREN LECRAFT HENDERSON, Circuit Judge: The Federal 

Service Labor-Management Relations Statute (Statute), 5 

U.S.C. §§ 7101–7135, “grants federal agency employees the 

right to organize, provides for collective bargaining, and 

defines various unfair labor practices.” Nat’l Air Traffic 

Controllers Ass’n v. Fed. Serv. Impasses Panel, 606 F.3d 780, 

783 (D.C. Cir. 2010). Every federal agency must meet and 

negotiate in good faith with the chosen representative of 

employees covered by the Statute. 5 U.S.C. § 7114(a)(4); Fort 

Stewart Schs. v. Fed. Lab. Rels. Auth., 495 U.S. 641, 644 

(1990). If a federal agency or labor organization fails “to 

consult or negotiate in good faith” with its counterpart, it

commits a statutory unfair labor practice (ULP). 5 U.S.C. 

§ 7116(a)(5) and (b)(5).

Section 7119 of the Statute established the Federal Service 

Impasses Panel (FSIP or Panel) within the Federal Labor 

Relations Authority (FLRA or Authority) to “provide 

assistance in resolving negotiation impasses between agencies 

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

FSIP “serves as a mechanism of last resort in the speedy 

resolution of disputes, after negotiations have failed.” Council 

of Prison Locs. v. Brewer, 735 F.2d 1497, 1501 (D.C. Cir. 

1984). Both the agency and the labor representative may 

request FSIP assistance. 5 U.S.C. § 7119(b)(1). The FSIP 

“investigate[s] any impasse presented to it,” id.

§ 7119(c)(5)(A), and offers recommendations and assistance 

before “tak[ing] whatever action is necessary and not 

inconsistent with this chapter to resolve the impasse,” id. 

§ 7119(c)(5)(B)(iii). It can impose a contract provision that is

then considered part of the collective bargaining agreement 

(CBA). Am. Fed’n of Gov’t Emps. (AFGE), Locs. 225, 1504, 

and 3723 v. FLRA, 712 F.2d 640, 646 n.24 (D.C. Cir. 1983). 

Any final action of the FSIP “shall be binding on such parties 

during the term of the agreement, unless the parties agree 
3

otherwise.” 5 U.S.C. § 7119(c)(5)(C). An agency or labor 

organization commits a ULP by “fail[ing] or refus[ing] to 

cooperate in impasse procedures and impasse decisions.” Id. 

§ 7116(a)(6) and (b)(6). An FSIP-imposed agreement is 

“subject to approval by the head of the agency.” Id. 

§ 7114(c)(1). The agency head has 30 days from the date of the 

agreement’s execution to approve or disapprove. Id. 

§ 7114(c)(2). If the agency head does not approve or 

disapprove within 30 days, “the agreement shall take effect and 

shall be binding.” Id. § 7114(c)(3). 

The Statute creates a two-track labor dispute resolution 

system. Overseas Educ. Ass’n v. FLRA, 824 F.2d 61, 62 (D.C. 

Cir. 1987). On one track, either party alleging a ULP under 

Section 7116 can file a charge with the Authority’s General 

Counsel, who then investigates. 5 U.S.C. § 7118(a). If the 

General Counsel issues a complaint, the Authority holds a 

hearing and provides any appropriate relief. Id. § 7118(a)(6)–

(8). On the other track, under a CBA’s required “procedure[]

for the settlement of grievances,” either party can invoke 

“binding arbitration” if grievance negotiations fail. Id. 

§ 7121(a)(1), (b)(1)(C)(iii). “An 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). 

In this petition for review, Federal Education Association 

Stateside Region (FEA-SR), a teachers’ union, challenges the 

FLRA’s decision to set aside an arbitration award in FEA-SR’s 

favor on the ground that the arbitrator lacked authority to 

review a contested Panel order. FEA-SR contends that the 

FLRA erred by failing to defer to the arbitrator’s factual 

findings, by foreclosing arbitration regarding the Panel order 

and by disregarding the parties’ agreement that both parties’ 

signatures are required to “execute” the CBA. The FLRA, in 
4

turn, argues that we lack jurisdiction of the petition for review. 

In the alternative, the FLRA contends that FEA-SR is wrong 

on the merits. We hold that we have jurisdiction of the petition 

because the FLRA’s decisions sufficiently “involve[] an unfair 

labor practice.” 5 U.S.C. § 7123(a)(1). On the merits, however, 

we reject FEA-SR’s claims and, accordingly, deny the petition 

for review.

I. BACKGROUND FACTS

In 2005, FEA-SR entered a CBA with the U.S. Department 

of Defense, Domestic Dependent Elementary and Secondary 

Schools (DDESS). In 2010, the parties began negotiating a new 

agreement. They established ground rules for the negotiations, 

including that agency head review would occur only after 

formal execution; that is, after both parties had signed the 

agreement. Another ground rule permitted re-opening any 

previously agreed-upon sections until the parties reached 

agreement on an article as a whole. The parties reached 

agreement on several articles, including Article 11 on Health 

and Safety. Section 5 of Article 11 allows DDESS to extend 

the work year or reschedule days previously set aside for noninstructional activity in the event of school closures. 

Employees are to be compensated for “days required to be 

made up beyond the work year requirements as described in 

Article 18.” J.A. 357.

In 2018, the parties reached an impasse in their bargaining 

and DDESS sought the assistance of the FSIP. The FSIP helped

the parties reach agreement on nearly 30 issues, including 

workday length set forth in Article 18, Section 1. The FSIP then 

issued an order resolving the remaining issues. Dep’t of Def.

Educ. Activity Domestic Dependent Elementary & Secondary 

Schs., 18 F.S.I.P. 073 (2018). One outstanding issue involved 

Article 18, Section 3(f). DDESS proposed that within the 190-
5

day work year, rescheduled workdays—due to inclement 

weather or other emergencies—would trigger no additional 

compensation. FEA-SR offered no counterproposal and instead 

argued that Article 11 already guaranteed additional 

compensation for rescheduled days. According to FEA-SR, the 

parties were not at impasse on the issue and thus the FSIP

lacked jurisdiction to resolve it. The FSIP found no conflict

between the articles: Article 18 covers rescheduled days within 

the 190-day work year and Article 11 provides additional 

compensation for days beyond the 190-day work year. The 

FSIP then adopted DDESS’s proposal: no additional 

compensation for rescheduled days within the 190-day work 

year.

After the FSIP issued its order, the parties continued 

discussing a four-word change to Article 22. On February 11, 

2019, DDESS informed FEA-SR that the agreement had taken 

effect on January 11, 2019, when the agreement was approved 

through the Department of Defense’s agency head review

process.

1 FEA-SR protested that it had not signed the 

agreement and therefore no execution had occurred under the 

parties’ ground rules. FEA-SR then filed an arbitral grievance 

claiming DDESS’s submission of the agreement for agency

head review without FEA-SR’s signature violated the 

contractual ground rules and constituted bad faith bargaining 

under Section 7116(a)(5). It filed a second grievance alleging 

that DDESS’s implementation of the agreement without 

signatures repudiated the earlier CBA and also constituted bad 

faith bargaining under Section 7116(a)(5). It reasserted its 

claim that the FSIP lacked jurisdiction of Article 18. It

acknowledged that its refusal to implement the FSIP’s impasse 

1 An agency head may delegate his authority to review a CBA. 

Fort Bragg Ass’n of Teachers, 44 F.L.R.A. 852, 855 (1992). DDESS

delegated agency head review to the Defense Civilian Personnel 

Advisory Service.
6

decision could constitute a ULP under Section 7116(b)(6) but 

took the risk in order to challenge the FSIP’s jurisdiction. 

The arbitrator concluded that DDESS had committed 

unfair labor practices by cutting negotiations short and 

submitting an unexecuted agreement for agency head review. 

These two actions, he found, repudiated the earlier CBA and 

constituted bad faith bargaining. He also determined that 

Article 18, Section 3(f) was merely a permissive bargaining 

subject because it conflicted with the already agreed-to Article 

11, impliedly placing it beyond FSIP jurisdiction. He then

reinstated the 2005 CBA as a remedy.

DDESS excepted to the arbitration award and FEA-SR 

filed an opposition thereto. The FLRA set aside the arbitrator’s 

award. U.S. Dep’t of Def. Domestic Dependent Elementary & 

Secondary Schs. (DOD I), 72 F.L.R.A. 601 (2021). It first 

found that the arbitrator could not review whether or not the 

FSIP had jurisdiction of the Article 18 issue. Id. at 603.

Because an FSIP order is “binding” under the Statute, id.; 5 

U.S.C. § 7119(c)(5)(C), an arbitrator may review an FSIP order 

only if (1) Party A charges Party B with noncompliance with 

an FSIP order—a ULP under Section 7116(a)(6) and (b)(6)—

and (2) Party B then challenges the FSIP order’s legality

(including jurisdiction as well as the merits) as a defense. DOD 

I, 72 F.L.R.A. at 603; see State of New York, 2 F.L.R.A. 185, 

188 (1979). DDESS did not charge FEA-SR with a ULP based 

on noncompliance and so the arbitrator improperly ruled on 

FEA-SR’s challenge to the FSIP’s jurisdiction. DOD I, 72 

F.L.R.A. at 603. For the same reason, the arbitrator erroneously 

reviewed the FSIP’s interpretations of Articles 11 and 18. Id.

Next, the Authority concluded that DDESS’s submission of the 

agreement for agency head review complied with Section 

7114(c). Id. at 604. Because the FSIP order resolved all 

outstanding issues at impasse, the agreement was “executed”
7

when the FSIP issued its order. Id. Thus, DDESS properly 

submitted the executed agreement for agency head review. Id.

at 605.

FEA-SR moved for reconsideration but was unsuccessful.

U.S. Dep’t of Def. Domestic Dependent Elementary & 

Secondary Schs. (DOD II), 73 F.L.R.A. 149 (2022). In its 

denial, the FLRA iterated the proper procedure—under either 

track—to challenge an FSIP order: (1) Party A charges Party B 

with non-compliance with a Panel order and (2) Party B then 

challenges the order’s legality. Id. at 150. It also concluded that 

Article 22 did not constitute an unresolved bargaining issue 

because FEA-SR failed either to raise it before the arbitrator or

to file a timely exception to the award. Id. at 152.2

FEA-SR now petitions this Court for review of both FLRA 

orders, arguing that the FLRA failed to defer to the arbitrator’s 

factual findings, wrongly foreclosed arbitration regarding the 

FSIP-imposed provision and disregarded the parties’ 

agreement to “execute” the CBA via both parties’ signatures.

The FLRA challenges our jurisdiction; additionally, it 

disagrees with FEA-SR on the merits. 

2 Chairman DuBester wrote separately to express his view that 

a party might be able to challenge certain “matters pertaining to an 

[FSIP] order” outside the Authority’s State of New York noncompliance regime. DOD II, 73 F.L.R.A. at 153. In his view, Party 

B could skip the first step and lodge a direct ULP charge against 

Party A “alleging that agency action related to the Panel proceeding 

constituted an unfair labor practice.” Id. Because DOD I had found 

that DDESS did not commit a ULP, however, the Chairman 

concurred in the decision. Id.
8

II. ANALYSIS 

A. Jurisdiction

We have jurisdiction of an FLRA order reviewing an 

arbitrator’s award only if the order “involves an unfair labor 

practice.” 5 U.S.C. §§ 7122(a), 7123(a)(1). We interpret 

“involves” to require that a ULP be “discussed in some way in, 

or be some part of, the Authority’s order” or “necessarily 

implicated by” the Authority’s decision. Overseas, 824 F.2d at 

65, 68.

Our court has found no ULP involvement—and therefore 

no jurisdiction—if a claim could be, but is not, framed as a 

statutory ULP. See, e.g., U.S. Dep’t of Interior v. FLRA, 26 

F.3d 179, 184 (D.C. Cir. 1994) (no ULP involvement when 

union framed arguments as governed by contract law and did 

not cite Section 7116). Similarly, we lack jurisdiction if an

arbitration award lists no ULP issues and the FLRA order 

includes “no discussion, mention or implication of an unfair 

labor practice.” AFGE Loc. 3690 v. FLRA, 3 F.4th 384, 388 

(D.C. Cir. 2021). 

We have also found no ULP involvement if an arbitrator 

addresses a ULP but the Authority does not. In AFGE, Local 

2510 v. FLRA, a union submitted a ULP charge to an arbitrator 

but the FLRA order addressed only an attorney’s fee award. 

453 F.3d 500, 504 (D.C. Cir. 2006). The FLRA order did not 

“involve” a ULP. Id. In another case, the union pressed contract 

and ULP claims but the arbitrator dismissed the ULP claim as 

not properly before her. Ass’n of Civilian Techs., N.Y. State 

Council v. FLRA, 507 F.3d 697, 698–99 (D.C. Cir. 2007). The 

FLRA upheld the arbitrator’s decision but did not evaluate the 

ULP allegations; accordingly, the Court found no ULP 

involvement and dismissed the petition. Id. This precedent 

manifests that the “involves” test focuses on the FLRA’s order, 
9

not the arbitral award. See Broad. Bd. of Governors Office of 

Cuba Broad. v. FLRA, 752 F.3d 453, 457 (D.C. Cir. 2014)

(“[I]t is the order of the FLRA that is the subject of the petition 

for judicial review, not the arbitrator’s decision or the initial 

grievance.” (alteration adopted) (quotation omitted)). 

On the other hand, we have found the “involves” test 

satisfied in some circumstances. In Overseas, we exercised our 

jurisdiction to review an FLRA order that precluded an 

arbitrator’s consideration of a ULP because the union had 

earlier raised the ULP charge before the FLRA. 824 F.2d at 70. 

The Authority’s discussion of the union’s arbitral grievance 

vis-à-vis the earlier ULP charge “abundantly suffice[d] to 

satisfy the relatively imprecise ‘involves’ standard,”

notwithstanding the FLRA did not address the ULP on the 

merits. Id. at 71. In National Weather Service Employees 

Organization (NWSEO), an arbitrator concluded that the

agency had not unlawfully repudiated an earlier agreement in 

violation of Section 7116(a)(1) and (5). 71 F.L.R.A. 380, 382 

(2019). On review, we held the “involves” test met because the 

Authority order explicitly addressed the unlawful repudiation 

ULP. NWSEO v. FLRA, 966 F.3d 875, 880 (D.C. Cir. 2020). 

We believe the FLRA orders sub judice involve statutory 

ULPs. FEA-SR’s claims were litigated as ULPs before the 

arbitrator. Both of FEA-SR’s arbitral grievances alleged that 

DDESS committed ULPs. FEA-SR Grievance, SY 2018-2019 

No. 19 (alleging that submission of an unexecuted agreement 

for agency head review violated the ground rules and 

constituted bad faith bargaining in violation of Section 

7116(a)); FEA-SR Grievance, SY 2018-2019 No. 21 (alleging 

that DDESS’s notice of the agreement’s implementation 

repudiated the earlier CBA and constituted a ULP under 

Section 7116(a)). In post-hearing briefing, both parties again 

listed the ULP allegations as the main issues presented. DDESS 
10

Post-Hearing Brief at *2–3 (whether DDESS violated Section 

7116(a) by submitting the agreement for agency head review 

or by implementing the agreement); FEA-SR Post-Hearing 

Brief at *15–16 (whether DDESS violated Section 7116(a) by 

submitting an unexecuted draft agreement for agency head 

review or by repudiating the earlier agreement). The arbitrator 

ultimately concluded that DDESS failed to negotiate in good 

faith and committed ULPs when it ceased negotiating on 

unresolved provisions and submitted a partially unsigned

agreement for agency head review. In re Arb. between FEA-SR 

and DDESS, FMCS Case No. 190227-04572, at *17–18 

(2020). 

The FLRA’s orders “involve” a ULP under Section 

7123(a) because they conclude that the basis of the arbitrator’s 

ULP finding was contrary to law. First, the FLRA described 

the arbitral award as finding ULPs based on DDESS’s

cessation of negotiations, submission of an unexecuted 

agreement for agency head review and repudiation of the 

parties’ 2005 CBA. DOD I, 72 F.L.R.A. at 601. Second, in Part 

B of the DOD I order, the FLRA addressed the arbitrator’s ULP 

findings.3 The FLRA determined that the FSIP had resolved all 

bargaining issues. Id. at 604. This determination directly 

overturned the arbitrator’s finding that DDESS failed to 

continue negotiating an incomplete agreement. See Arb.

between FEA-SR and DDESS, at *17–18. Next, the FLRA 

found the agreement “executed” when the FSIP issued its 

order. DOD I, 72 F.L.R.A. at 604–05. DDESS therefore 

submitted a fully executed agreement for agency head review 

in compliance with Section 7114(c). Id. at 605. In other words, 

the FLRA overturned the arbitrator’s finding that DDESS

committed a ULP by submitting an unexecuted agreement for 

3 We may review the entire FLRA order if at least one portion 

of the order involves a ULP. NWSEO, 966 F.3d at 879–80. 
11

review. See Arb. between FEA-SR and DDESS, at *17–18. The 

DOD II order declined to reconsider these conclusions. 73 

F.L.R.A. at 152. Because the FLRA controverted the bases on 

which the arbitrator found a ULP, its orders “necessarily 

implicated” a statutory ULP and “suffice[d] to satisfy the 

relatively imprecise ‘involves’ standard.” Overseas, 824 F.2d 

at 71; cf. Nat’l Treasury Emps. Union v. FLRA, 745 F.3d 1219, 

1222 (“The [FLRA]’s reversal of the Arbitrator’s unfair labor 

practice finding clearly involves an unfair labor practice.”). 

We review the FLRA orders in accordance with the 

Administrative Procedure Act. 5 U.S.C. § 7123(c); see id. 

§ 706(2). In reviewing the FLRA’s interpretation of the Statute, 

we ask whether the Congress “has directly spoken to the

precise question at issue” and give “effect to [the Congress’] 

unambiguously expressed intent.” Nat’l Treasury Emps. Union 

v. FLRA (NTEU), 754 F.3d 1031, 1041 (D.C. Cir. 2014) 

(quoting Chevron USA Inc. v. Nat. Res. Def. Council, Inc., 467 

U.S. 837, 842–43 (1984)); see SAS Inst., Inc. v. Iancu, 138 S. 

Ct. 1348, 1358 (2018). We defer to the FLRA’s reasonable 

interpretation only if the statute is silent or ambiguous. NTEU, 

754 F.3d at 1041. 

FEA-SR challenges the Authority’s conclusions that (1) 

the arbitrator lacked authority to review the FSIP order under 

Section 7119 and (2) the agreement “executed” upon the 

FSIP’s issuance of its order. Because the FLRA orders 

correctly interpret Sections 7119 and 7114, we deny FEA-SR’s 

petition for review. 

B. Arbitrator’s Review of FSIP Order—Section 7119

The FLRA correctly determined that the arbitrator lacked 

authority to review the FSIP order under Section 7119. The 

Statute’s text, structure and history indicate the Congress’ 

intent to insulate FSIP orders from direct review by an 
12

arbitrator, the FLRA or a court. The Statute sets out a single 

procedure for reviewing the legality of an FSIP order: Party B 

can challenge an FSIP order as contrary to law only after Party 

A charges Party B with noncompliance with the order. Because 

we believe the Congress “has directly spoken to the question at 

issue,” we give effect to its “unambiguously expressed intent.” 

NTEU, 754 F.3d at 1041 (cleaned up).

We start with the text of Section 7119. The Statute 

established the FSIP to “investigate any impasse” presented to 

it, 5 U.S.C. § 7119(c)(5)(A), and instructed it to “take whatever 

action is necessary and not inconsistent with this chapter to 

resolve the impasse,” id. § 7119(c)(5)(B)(iii). The FSIP’s final 

action “shall be binding on such parties during the term of the 

agreement, unless the parties agree otherwise.” Id.

§ 7119(c)(5)(C) (emphasis added). The Statute provides for no 

direct review of FSIP orders, whether by an arbitrator, the 

FLRA or a court. The Statute does include other review 

provisions: both the FLRA and an arbitrator can review ULP 

allegations (id. §§ 7116(d); 7118; 7121), the FLRA can review 

an arbitral award (id. § 7122(a)) and the court can review a final 

FLRA order (id. § 7123(a)). The absence of an FSIP review 

provision manifests the Congress’ intent to restrict review. 

Review is limited to a ULP proceeding for noncompliance with 

impasse procedures and FSIP orders. See id. § 7116(a)(6) and 

(b)(6).4 What legislative history there is reinforces the text. A 

House Committee Report clarifies that an FSIP order is binding 

and “not subject to appeal.” H.R. REP. NO. 95-1403, at 54 

(1978). That report envisioned only one avenue for review of 

4 According to Subsections 7116(a)(6) and (b)(6), an agency or 

labor organization commits a ULP by “fail[ing] or refus[ing] to 

cooperate in impasse procedures and impasse decisions as required 

by this chapter.” A party charged with a non-compliance ULP can

then challenge the FSIP order’s legality as a defense. State of New 

York, 2 F.L.R.A. at 188.
13

an FSIP order: that is, as a defense to a ULP charge for failure 

to comply with an FSIP order. Id.; see 5 U.S.C. § 7116(a)(6) 

and (b)(6); State of New York, 2 F.L.R.A. at 188.

We long ago acknowledged the lack of judicial review of 

FSIP orders. In Brewer, we reviewed the statutory text, 

structure and legislative history before concluding that the 

Congress could not have provided “[a] clearer suggestion” that 

it “intended no appeal from Panel decisions.” 735 F.2d at 1500. 

Instead, Brewer noted the availability of review of an FSIP 

order only when reviewing a ULP charge for noncompliance 

with a Panel order. Id. (citing AFGE, Locs. 225, 1504, and 

3723, 712 F.2d at 641 n.4; Dep’t of Treasury v. FLRA, 707 F.2d 

574, 577 n.7 (D.C. Cir. 1983) (explaining that an FSIP decision 

can be reviewed “first before the Authority, then in court, in an 

unfair labor practice proceeding”)). The FLRA itself abjured 

any power to review an FISP order directly, explaining that the 

Congress established the “unfair labor practice procedure as the 

exclusive means of obtaining” Authority review of an FSIP 

order. State of New York, 2 F.L.R.A. at 188.

In its second arbitral grievance, FEA-SR declined to 

execute the FSIP-imposed agreement until both parties signed 

it and “resolved the dispute over FSIP’s jurisdiction.” FEA-SR 

Grievance, SY 2018-2019 No. 21. Its declination arguably 

constituted a ULP by not complying with an impasse decision 

under Section 7116(b)(6). If DDESS had lodged a ULP charge, 

FEA-SR could have defended itself by arguing that the FSIP

order was contrary to law. See Headquarters, Nat’l Guard 

Bureau Washington, D.C., 54 F.L.R.A. 316, 323–25 (1998); 

NTEU, 61 F.L.R.A. 729, 732 (2006). Indeed, FEA-SR expected

DDESS to file a ULP charge against it on this ground. J.A. 136.

But DDESS did not do so and thus FEA-SR had no opportunity 

to challenge the validity of the FSIP order under the State of 

New York/Brewer regime. DOD II, 73 F.L.R.A. at 151. 
14

Relying on several district court decisions holding that a 

union might bring a collateral challenge to an FSIP order—for 

example, a challenge under the Appointments Clause of the 

Constitution—FEA-SR proposes expanding the State of New 

York/Brewer regime. See Nat’l Veterans Affs. Council v. FSIP

(NVAC), 552 F. Supp. 3d 21, 30 (D.D.C. 2021); Ass’n of 

Admin. L. Judges v. FSIP (AALJ), 2021 WL 1999547, at *7 

(D.D.C. May 19, 2021). According to FEA-SR, it can bypass 

the State of New York/Brewer regime by lodging a ULP charge 

against DDESS and bootstrapping a challenge to the FSIP 

order’s legality—attacking its jurisdiction or the order’s merits. 

FEA-SR’s challenge to the FSIP order is not collateral, but 

direct. Its second grievance expressly raises the “dispute over 

FSIP’s jurisdiction.” FEA-SR Grievance, SY 2018-2019 No. 

21. FEA-SR’s post-hearing briefing alleges that the FSIP 

exceeded its jurisdiction by adopting DDESS’s proposed 

Article 18, Section 3(f). FEA-SR Post-Hearing Brief at *39–

44. NVAC and AALJ did endorse the availability of collateral 

challenges to the constitutionality of the FSIP members’

appointments. See NVAC, 552 F. Supp. 3d at 30; AALJ, 2021 

WL 1999547, at *7. Moreover, the district court merely 

surmised that a union could lodge a ULP charge against an 

agency and then bootstrap that charge into a reviewable 

challenge to an FSIP order. See NVAC, 552 F. Supp. 3d at 30 

(“[T]he Union likely can bring an unfair labor practice charge 

against the VA.”). We decline FEA-SR’s invitation to expand 

Brewer in this manner.5

5 Brewer itself casts doubt on the bootstrapping theory. There, 

we described a ULP charge of noncompliance with an FSIP order as 

the “exclusive means for assuring judicial review of Panel orders.” 

Brewer, 735 F.2d at 1502 n.9 (emphasis added). Because this case 

presents a direct challenge to an FSIP order, we do not address the

correctness of the collateral challenges endorsed by NVAC and AALJ.
15

FEA-SR raises a policy concern about the asymmetry of 

the State of New York/Brewer scheme: a union can always 

charge an agency for failure to comply with an FSIP order but,

if a union fails to comply, the agency can simply execute the 

agreement without it. An agency has little incentive to lodge a 

noncompliance ULP charge because doing so would give a

union the opportunity to challenge the FSIP order’s legality.

6

See DOD II, 73 F.L.R.A. at 150. Federal employee unions 

cannot strike or withhold labor so the union has no recourse.7

See 5 U.S.C. § 7120. As Brewer recognized, the union’s

decision to violate a labor contract “is not to be taken lightly” 

and reliance on a ULP proceeding as the exclusive method to 

obtain review of an FSIP order comes with significant 

drawbacks. Brewer, 735 F.2d at 1502 n.9. But “[p]erhaps 

Congress wished to pay this price in return for swift and final 

Panel authority.” Id. We agree with Brewer that the asymmetry 

argument should be directed to the Congress. Id.

C. Execution of FSIP Order—Section 7114(c)

The Statute gives an agency “30 days from the date the 

agreement is executed” to approve or disapprove an agreement. 

5 U.S.C. § 7114(c)(2). If the agency does not complete review 

within 30 days, the agreement “shall take effect and shall be 

binding.” Id. § 7114(c)(3). The dispute here involves when 

“execution” of the CBA between FEA-SR and DDESS 

occurred. Statutory text offers little guidance on the timing of 

6 The asymmetry point may make sense in theory but in practice 

agencies have brought ULP charges against unions for noncompliance with FSIP orders. See, e.g., AFGE, Loc. 1815, 69 

F.L.R.A. 309, 314 (2016); AFGE, Loc. 3732, 16 F.L.R.A. 318, 330 

(1984).

7 If a federal union withholds labor, the FLRA can decertify the 

union and invoke other severe penalties. See Pro. Air Traffic 

Controllers Org., 7 F.L.R.A. 34, 38–39 (1981); 5 U.S.C. § 7120.
16

execution and we therefore consider whether the FLRA

reasonably interpreted the Statute. NTEU, 754 F.3d at 1042.

We believe that the Authority’s interpretation of “executed”—

occurring when no further action is needed—gives a reasonable 

construction. See DOD I, 72 F.L.R.A. at 604–05; NTEU, 754 

F.3d at 1041. We therefore uphold the Authority’s 

interpretation and conclude that DDESS’s submission of the

executed agreement for agency head review did not repudiate 

the 2005 CBA or “violate[] the Statute.” DOD I, 72 F.L.R.A. 

at 604–05.

Ordinarily, an agreement is executed on the “the date the 

local parties signed it.” AFGE, Loc. 1815, 69 F.L.R.A. 309, 319 

(2016). But FEA-SR did not sign the agreement. FLRA 

decisions have found an agreement executed if there is “no 

further action . . . necessary to finalize a complete agreement.” 

Pat. Office Pro. Ass’n, 41 F.L.R.A. 795, 803 (1991). Impasse 

arbitration and FSIP orders often resolve all outstanding issues 

and thus leave the parties with no further action needed. If an 

arbitration award resolves all outstanding issues at impasse, the 

FLRA has found the agreement executed. Panama Canal 

Comm’n, 36 F.L.R.A. 555, 562 (1990). A separate execution 

requirement would constitute a “meaningless formality.” Id.

Similarly, an FSIP order executed an agreement on the date of 

issuance because the parties needed to take no further steps. See 

AFGE Nat’l Veterans Affs. Council, 39 F.L.R.A. 1055, 1057 

(1991). And when the parties reviewed a CBA for accuracy 

after the arbitrator’s resolution of all outstanding issues, the 

Authority nonetheless found the agreement executed on the 

date the arbitrator issued his decision. AFGE, Loc. 1815, 69 

F.L.R.A. at 320. 

The FLRA has delayed the execution date only if a party 

must take further action to finalize an agreement after impasse 

proceedings. In National Treasury Employees Union (NTEU), 
17

an arbitrator appointed by the FSIP resolved six articles. 39 

F.L.R.A. 848, 849 (1991). The parties subsequently held 

discussions and continued negotiations on other unresolved 

articles. Id. The FLRA concluded this activity constituted 

further action necessary to finalize the agreement so that the 

issuance of the arbitrator’s decision did not trigger execution. 

Id. The Authority distinguished the NTEU arbitrator’s partial 

decision from the Panama Canal Commission arbitrator’s 

comprehensive decision resolving all outstanding issues. Id.

If the Authority’s interpretation of “executed” were 

otherwise, a party could distort the impasse procedure by 

“holding out its execution of the CBA in order to extract 

concessions it had already signed away” during negotiations.

AFGE, Loc. 1815, 69 F.L.R.A. at 320. Under the Authority’s 

interpretation, a party cannot unilaterally impede execution of 

a finalized, FSIP-imposed agreement by refusing to sign. Here, 

the Authority reasonably concluded that the FSIP order 

executed the DDESS–FEA-SR agreement by resolving all 

outstanding issues, consonant with Panama Canal 

Commission, 36 F.L.R.A. at 562, and AFGE National Veterans 

Affairs Council, 39 F.L.R.A. at 1057. DOD I, 72 F.L.R.A. at 

604. The parties submitted 10 outstanding issues and the FSIP 

resolved all of them. DOD I, 72 F.L.R.A. at 604. FEA-SR 

argues that the parties did not resolve Article 22 but they 

disagreed only on the phrasing of four words. Id. The brief 

discussion of Article 22’s phrasing falls far short of the 

substantive negotiations on unresolved articles that extended 

the execution date in NTEU. See 39 F.L.R.A. at 849. The FSIP 

also resolved Article 18 and, as a result, FEA-SR could not 

reopen Article 18, Section 1(a) under the parties’ ground rules. 

DOD I, 72 F.L.R.A. at 604. Because the parties needed to take 

no further action, the agreement executed on December 14, 

2018—the date the FSIP issued its order. See Pat. Office Pro. 

Ass’n, 41 F.L.R.A. at 803. Approval of the agreement via the 
18

agency head review process on January 11, 2019 complied with 

Section 7114(c) and did not repudiate the 2005 CBA. DOD I, 

72 F.L.R.A. at 604. The Authority’s reasonable interpretation 

of Section 7114(c) prevents FEA-SR from forestalling 

execution of a finalized agreement by refusing to sign. See 

AFGE, Loc. 1815, 69 F.L.R.A. at 320. 

For the foregoing reasons, the petition for review is denied. 

So ordered.