# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2023 Decided June 7, 2024

No. 22

- 1220

F EDERAL E DUCATION A SSOCIATION S TATESIDE R EGION , P ETITIONER

v.

F EDERAL L ABOR R ELATIONS A UTHORITY , R ESPONDENT

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: H ENDERSON and R AO , Circuit Judges , and E DWAR DS , Senior Circuit Judge

. Opinion for the Court filed by Circuit Judge H ENDERSON

.2

K

AREN L E C RAFT H ENDERSON , 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. F ed. Serv. Impasses Panel , 606 F.3d 780, 783 (D.C. Cir. 2010)

. Every federal agen cy must meet and negotiate in good faith with the chosen representative of employees covered by the S tatute. 5 U.S.C. § 7114(a)(4) ; Fort Stewart Sch s. v. F ed. 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 F ederal S ervice I mpasses P anel (FSIP or Panel) within the Feder al 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 dis putes, 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 offer s recommendations and assistance before “tak [ing] whatever action is necessary and not inconsistent with this chapter to resolve the impasse
, ” i d. § 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 agree3

otherwise.” 5 U.S.C. § 7119(c)(5)(C). A n agency or labor organization commit s a ULP by “fail[ing] or refus[ing] to cooperate in impasse procedures and impasse decisions.” Id. § 7116(a)(6) and (b)(6). A n 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 day s , “the agreement shall take effect and shall be binding.” Id. § 7114(c)(3).

The Statute create s 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 investigate s

. 5 U.S.C. § 7118(a). If the General Counsel issues a complaint, the Authority hold s 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 proced ure 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 asid e 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 regardin g the Panel order and by disregarding the parties’ agreement that both parties’ signatures are required to “execute ” the CBA. The FLRA, in4
turn, argues that we lack jurisdiction o f the petition for review. In the alternative, the FLRA contends that FEA

- SR is wrong on the merits. We hold that we have jurisdiction o f 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. B ACKGROUND F ACTS

In 2005, F EA

- SR entered a CBA with the U.S. Department of Defense, Domestic Dependent Elementary and Secondary Schools ( DDESS ). I n 2010
, the parties began negotiating a new agreement. The y established ground rules for the negotiations, including that agency head review would occur only after formal execution ; that is, after both parties had sign ed the agreement

. Another ground rule permitted re

- opening any previously agreed

- upon sections until the parties reached agreement on an a rticle 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 non

instructional 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. T he FSIP helped the parties reach agr eement on nearly 30 issues
, including workday length set forth in Article 18, Section 1. The FSIP then issued an order resolving th e 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

c ompensation. 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 th e issue and thus the FSIP lacked jurisdi ction to resolve it

. T he 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, t he parties continued discussi ng a four

- word change to Article 22. On February 11, 2019, DDESS informed FEA

- SR that the agreement had t aken 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 F EA

- SR’s signature violated the contractual ground rules and constituted bad faith bargaining under Section 7116(a)(5). It fil e d a second grievance alleging that DDESS’ s implement ation of the agreement without signatures repudiated the earlier CBA and also constituted bad faith bargaining under Section 7116(a)(5). It re asserted its claim that the FSIP lacked jurisdiction of Article 18. It acknowledged that it s refusal to implement the FSIP’s impasse

1 An agency head may delegate h is 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 t he Defense Civilian Personnel Advisory Service

.6

d ecision could constitute a ULP under Section 7116(b)(6) but took the risk in o rder to challenge the FSIP’s jurisdiction.

The a rbitrator 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

. H e also determined that Article 18, Section 3(f) was merely a permissive bargaining subject because it conflict ed with the already agreed

- to Article 11
, impliedly placing it beyond FSIP jurisdiction

. He then reinstate d the 2005 CBA as a remedy

.

DDESS excepted to the arbitration award and FEA

- SR filed an opposition thereto

. The FLRA set aside the a rbitrator’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 a rbitrator 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
, i d. ; 5 U.S.C. § 7119 (c)(5)(C)
, a n 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, t he arbitrator erroneously reviewed the FSIP’s interpretations of Articles 11 and 18. Id. Next, t he 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, t he 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 a rbitrator or to file a timely exception to the award. Id. at 152. 2

FEA

- SR now petition s this Court for review of both FLRA

or ders , arguing that the FLRA failed to defer to the a rbitrator’s factual findings, wrongly foreclosed arbitration regarding the FSIP

- imposed provision and disregarded the parties’ agreement to “execute” the CBA via both parties’ signature s

. The FLRA c hallenges our jurisdiction; additionally, it disagrees with FEA

- SR on the merits.

2 Chairman DuBester wrote separately to exp ress his view that a party might be able to challeng e certain “matters pertaining to an [FSIP] order” outside the Authority’s State of New York non

compliance 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. A NALYSIS

A. Jurisdiction

We ha ve jurisdiction of an FLRA order reviewing an arbitrator’s award only if the order “ involve s 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 j urisdiction if an arbitration award list s no ULP issues and the FLRA ord er include s “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 addresse s a ULP but the Authority d oes not. In AFGE

, Local 2 510 v. FLRA , a union submitted a ULP charge to an arbitrator but the FLRA order addressed only a n attorney’s fee award. 4 5 3 F.3d 500, 504 (D.C. Cir. 2006). T he 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. Th is precedent manifests th at the “involves” test focuses on the FLRA’s order,9

not the arbitral award

. See Broad

. Bd. of Governors Office of Cuba Broad

. v. FLR A , 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 t he “involves” test satisfied in some circumstances

. In Overseas
, we exercised our jurisdiction to review an FLRA order that precluded an arbitrator ’s consider ation of a ULP because the union had earlier raised the ULP c har ge 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 N ational W eather S ervice Employees O rganization ( NWSEO ) , an arbitrator concluded that the agency had no t unlawful ly repudiat ed 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, 88 0 (D.C. Cir. 2020).

W e believe t he FLRA order s sub judice i nvolve 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 unexec uted 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 repudiat ed 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 . DDESS10

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 agree ment 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 (20 20 )

.
The FLRA ’s order s “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 T he FLRA determined that the FSIP had resolved all bargaining issues

. Id. at 604. Th is determination d irectly overturned the arbitrator’s finding that DDESS fail ed to continue negotiating an i ncomplete agreement

. See Arb

. between FEA

- SR and DDESS , at *17

– 18

. Next, the FLRA found the agreement “ executed ” when the FSIP issu ed its order

. DOD I , 72 F.L.R.A. at 604

– 05. DDESS therefore submitted a fully executed agreement for agency head review in compli ance with Section 7114(c)

. Id. at 605. In other words,
t he FLRA overturned the arbitrator’s finding that DDESS committed a ULP by submi tting an unexecuted agreement for

3 We may review the ent ire 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 7 1; cf. Nat’l Treasury Emps. Union v. FLRA , 745 F.3d 1219, 1222 (“The [FLRA]’s rever sal 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 interpretatio n 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) (quoti ng 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 10 41.

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 Sect ions 7119 and 7114
, we deny FEA

- SR’s petition for review.

B. Arbitrator’s Review of FSIP Order

— Section 7119

The FLRA correctly determined t hat the arbitrator lacked authority to review the FSIP order under Section 7119. T he S tatute’s text , structure and history indicate the Congress’ intent to insulate FSIP orders from direct review by an12
arbitrator, the FLRA or a court. The Statute sets o ut 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 no ncompliance w ith the order

. Because we believe the Congress “ has directly spoken to the questio n 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 instruct ed 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 f inal action “ sha ll 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 l egislative history there is reinforces th e text. A H ouse Committee Report clarifies that a n FSIP order is binding and “not subject to appeal.” H.R. R EP

. N O

. 95

- 1403, at 54 (1978). Th at report envisioned only one avenue for review of

4 According to S ubsections 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 c an then challenge the FSIP o rder’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 charg e for fail ure 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 th e 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 6 41 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 b efore the Authority, then in court
, in an unfair labor practice proceeding”) )

. The FLRA itself abjured any power to review an FISP order directly, explain ing that the Congress established the “unfai r labor practice procedure as the exclusive means of obtaining” Authority review of an FSIP order. State of N ew Y ork , 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 charg e, FEA

- SR could have defended itself by arguing that the FSIP order wa s contrary to law. See Headquarters, Nat’l Guard Bureau Washington, D.C. , 54 F.L.R.A. 316, 323

– 2 5 (1998); NTEU , 61 F.L.R.A. 729, 732 (2006). Indeed, FEA

- SR expected DDESS to file a ULP charge against it on th i s 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 t he State of N

ew Y ork /Brewer regime. DOD II , 73 F.L.R.A. at 151.14
Relying on sever al district court decisions holding t hat a union might bring a collateral challenge to an FSIP order

— for example, a challenge under the Appointments Clause of the Constitution

— FEA

- SR propose s 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 lodg ing a ULP charge against DDESS and bootstrap ping 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 Brie f at * 39

– 44

. NVAC and AALJ did endorse the availability of collateral challenges to the constitutional ity of the FSIP member s’ appointments. See NVAC
, 552 F. Supp. 3d a t 30 ; AALJ
, 2021 WL 1999547, at *7

. Moreover, the district court merely surmise d 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.”)

. W e decline FEA

- SR’s invitation to expand Brewer in this manner. 5

5 Brewer itself casts doubt on th e bootstrapping theory. There, we described a ULP charge of noncompliance with a n 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 th e State of N ew Y ork /Brewer scheme: a union can always charge an agency for fail ure 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. F ederal employ ee 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 rel iance on a ULP proceeding as the exclusive method to obtain review of an FSIP order comes with significant drawbacks. B r e wer , 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 B rewer that the asymmetry argument should be directed to t he Congress. Id.

C. Execution of FSIP Order

— Section 7114(c)

The Statute gives an a genc y “ 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 whe n “execution” of the CBA between FEA

- SR and DDESS occurred

. S tatutory 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 non

compliance 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 I f a federal union withhold s 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 t he 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 subm ission 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 execute d 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 (199 1). Impasse arbitration and FSIP orders often resolve all outstanding issues and thus leave the parties with no further action needed

. If an arbitration award resolve s all outstanding issues at impasse , the FLRA has found the agreement executed. Panama Can al 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 step s

. 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 resol ution of all outstanding issues, the Authority nonetheless found the agreement executed on the date the arbitrato r 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 t a k e further action to finalize an agreement after impasse proceedings. In N ational Treasury E mployees U nion ( 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 necessar y to finalize the agreemen t so that t he issuance of the arbitrator’s decision did not trigger execution. Id. T he Authority distinguished the NTEU arbitrator’s partial decision from the Panama Canal Commission arbitrator’s comprehensive decision resolving a ll outstanding issues

. Id

.
If the Authority’s interpretation of “executed” were otherwise, a party could distort the impasse procedure by “hold ing 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

- impo sed agreement by refusing to sign. Here
, t he Authority reasonably concluded that the FSIP order executed the DDESS

– FEA

- SR agreement by resolving all outstanding issues, cons onant with Panama Canal Comm ission
, 36 F.L.R.A. at 562
, and AFGE Nat iona l Veterans Aff air s 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 the y 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

- S R 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. A pproval of the agreement via the18

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.