United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 19, 2006 Decided February 17, 2006

No. 05-5076

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION 

AFL-CIO AND 

PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, AFL-CIO,

APPELLANTS

v.

FEDERAL SERVICE IMPASSES PANEL AND

FEDERAL LABOR RELATIONS AUTHORITY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 04cv00138)

William W. Osborne, Jr. argued the cause for appellants.

With him on the briefs were Debra L. Willen, Marguerite L.

Graf, and Michael D. Derby.

James F. Blandford, Attorney, Federal Labor Relations

Authority, argued the cause for appellees. With him on the brief

was William R. Tobey, Acting Solicitor. 
2

Andrew Steinberg, Chief Counsel, Federal Aviation

Administration, argued the cause for amicus curiae Federal

Aviation Administration in support of the appellees. With him

on the brief were Peter D. Keisler, Assistant Attorney General,

U.S. Department of Justice, Kenneth L. Wainstein, U.S.

Attorney, William G. Kanter and Edward Himmelfarb,

Attorneys, Jeffrey A. Rosen, General Counsel, U.S. Department

of Transportation, and Paul M. Geier, Assistant General

Counsel.

Before: GINSBURG, Chief Judge, RANDOLPH,Circuit Judge,

and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Congress established a

distinct regulatory framework for collective bargaining between

federal agencies and their employees under the Federal Service

Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135

(2000). Within this statutory framework, the Federal Service

Impasses Panel (“FSIP,” “Impasses Panel,” or “Panel”) 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.” Council of Prison

Locals v. Brewer, 735 F.2d 1497, 1501 (D.C. Cir. 1984).

Therefore, decisions of the FSIP generally are not subject to

direct judicial review. Id. at 1498. A federal district court may

exercise jurisdiction to review a Panel order only “in exceptional

circumstances” as defined by Leedom v. Kyne, 358 U.S. 184

(1958), and its progeny. Brewer, 735 F.2d at 1500-01.

In 2003, contract negotiations between the Federal Aviation

Administration (“FAA”) and two of the unions representing its

employees, the National Air Traffic Controllers Association,

AFL-CIO (“NATCA”), and the Professional Airways Systems

Specialists, AFL-CIO (“PASS”), broke down. In July 2003, the
3

Unions sought the assistance of the Panel. However, the FSIP

declined to exercise jurisdiction over the bargaining impasses

because, after receiving the parties’ submissions, the Panel was

uncertain whether it had the authority to resolve the disputes.

The Unions then filed suit against the Panel and the Federal

Labor Relations Authority (“FLRA” or “Authority”) in District

Court seeking declaratory and injunctive relief pursuant to

Leedom. The District Court granted summary judgment to the

defendants, concluding that it lacked jurisdiction to review the

Panel’s decision not to assert jurisdiction over the parties’

collective bargaining disputes. The Unions have appealed. The

FAA appears as amicus curiae in support of the Impasses Panel

and the FLRA. We affirm. 

Leedom provides an extremely limited exception to the

nonreviewability of FSIP orders. In this case, the Unions have

failed to demonstrate either of the predicates necessary for

Leedom jurisdiction: The specific statutory provision identified

by the Unions is not sufficiently “clear and mandatory” to

require the Panel to exercise jurisdiction over these disputes,

Leedom, 358 U.S. at 188, and the Unions have failed to show

that, without the District Court’s exercise of jurisdiction, they

have no “meaningful and adequate means of vindicating [their]

statutory rights,” Bd. of Governors, Fed. Reserve Sys. v. MCorp

Fin., Inc., 502 U.S. 32, 43 (1991). 

I. BACKGROUND

A. The FSIP

The Federal Service Labor-Management Relations Statute,

5 U.S.C. §§ 7101-7135 (“Chapter 71”), which was passed as

part of the Civil Service Reform Act of 1978, governs “[l]abor

relations within the federal civil service.” Dep’t of Def. v.

FLRA, 659 F.2d 1140, 1144 (D.C. Cir. 1981). The FLRA is

primarily responsible for administering the statute. 5 U.S.C.

§ 7105. Under Chapter 71, a federal agency and the exclusive
4

bargaining representatives of that agency’s employees are

required to negotiate in “good faith” over the subjects covered

by the duty to bargain. See 5 U.S.C. § 7114(a)(4). Where

negotiations fail to produce an accord, the statute provides for

alternative dispute resolution processes. First, the parties may

use the services of the Federal Mediation and Conciliation

Service. 5 U.S.C. § 7119(a). Should mediation “fail to resolve

a negotiation impasse . . . either party may request” the services

of the FSIP, 5 U.S.C. § 7119(b), “an entity within the Authority,

the function of which is to provide assistance in resolving

negotiation impasses between agencies and exclusive

representatives” of their employees, 5 U.S.C. § 7119(c)(1).

“[T]he parties may [also] agree to adopt a procedure for binding

arbitration of the negotiation impasse, but only if the procedure

is approved by the Panel.” 5 U.S.C. § 7119(b)(2). 

Upon submission of a request for Panel assistance, the

Panel “shall promptly investigate any impasse presented to it.”

5 U.S.C. § 7119(c)(5)(A). Once it has investigated, “[t]he 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 . . . it may consider appropriate to

accomplish the purpose of this section.” 5 U.S.C.

§ 7119(c)(5)(A). The Panel has published regulations

implementing § 7119. See 5 C.F.R. §§ 2470.1-2473.1 (2005).

As relevant here, the regulations provide:

(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
5

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. 

5 C.F.R. § 2471.6(a)(1), (2).

B. Congressional Restructuring of the FAA in the 1990s

The FAA argues here, as before the Panel, that legislation

passed by Congress in the mid-1990s withdrew the FSIP’s

jurisdiction as the final arbiter over disputes that arise between

the FAA and its employees over compensation and benefits.

First, with the enactment of the 1996 Department of

Transportation and Related Agencies Appropriations Act (“1996

DOT Act”), Congress directed the FAA to establish its own

personnel management system, exempt from many of the

provisions of federal personnel laws. See 49 U.S.C. § 40122(g)

(2000). Section 40122(g) is derived from § 347 of the 1996

DOT Act, Pub. L. No. 104-50, § 347, 109 Stat. 436, 460 (1995),

and it now provides in relevant part that,

[i]n consultation with the employees of the Administration

and such non-governmental experts in personnel

management systems as he may employ, and

notwithstanding the provisions of title 5 and other Federal

personnel laws, the Administrator [of the FAA] shall

develop and implement, not later than January 1, 1996, a

personnel management system for the Administration that

addresses the unique demands on the agency’s workforce.

Such a new system shall, at a minimum, provide for greater
6

flexibility in the hiring, training, compensation, and

location of personnel.

49 U.S.C. § 40122(g)(1). 

On March 28, 1996, the FAA issued its new Personnel

Management System. The new system extended Chapter 71

protections to FAA employees:

The FAA, all FAA employees, and all labor organizations

representing FAA employees shall have the same rights,

and be subject to the same responsibilities and limitations,

as are available to all Federal agencies, employees, and

labor organizations under 5 U.S.C. Chapter 71.

FAA Personnel Management System (Mar. 28, 1996) at 35,

reprinted in Joint Appendix (“J.A.”) 84. The FAA explained

that, while Congress did not require that the new system

conform to Chapter 71, “[t]he FAA has elected to continue the

rights and benefits of union representation to our employees.”

Id. at ii, reprinted in J.A. 44. It is undisputed that the current

version of the FAA Personnel Management System contains this

same provision extending Chapter 71 protections to FAA

employees. 

On March 29, 1996, Congress amended § 347 to codify the

agency’s choice to extend Chapter 71 protections to FAA

employees. H.R.J. Res. 170, Pub. L. No. 104-122, 110 Stat. 876

(1996) (codified as amended at 49 U.S.C. § 40122(g) (2000)).

Section 347 now provides: “The provisions of title 5 shall not

apply to the [FAA’s] new personnel management system . . .

with the exception of . . . chapter 71, relating to labormanagement relations.” 49 U.S.C. § 40122(g)(2)(C). The

parties agree that none of these acts altered the Panel’s

jurisdiction to address collective bargaining impasses between

the FAA and the Unions. 
7

According to the FAA, “business as usual” changed when

Congress enacted 49 U.S.C. § 106(l) in October 1996. The FAA

argues that, “[u]nder 49 U.S.C. § 106(l), the FAA has the power

to fix compensation for officers and employees, but its power to

bargain over compensation and benefits is strictly limited.” Br.

for FAA as Amicus Curiae at 2. Section 106(l) states in

relevant part:

Except as provided in subsections (a) and (g) of section

40122, the Administrator is authorized, in the performance

of the functions of the Administrator, to appoint, transfer,

and fix the compensation of such officers and employees,

including attorneys, as may be necessary to carry out the

functions of the Administrator and the Administration. In

fixing compensation and benefits of officers and

employees, the Administrator shall not engage in any type

of bargaining, except to the extent provided for in section

40122(a), nor shall the Administrator be bound by any

requirement to establish such compensation or benefits at

particular levels.

49 U.S.C. § 106(l)(1). This provision was added as § 225 of the

Air Traffic Management System Performance Improvement Act

of 1996 (“1996 FAA Act”), enacted as Title II of the Federal

Aviation Reauthorization Act of 1996, Pub. L. No. 104-264, tit.

II, 110 Stat. 3213, 3232. The provision originally referred in its

text to the uncodified version of § 40122(g), but was put in its

current form in the Wendell H. Ford Aviation Investment and

Reform Act for the 21st Century, Pub. L. No. 106-181, § 307(a),

(c), 114 Stat. 61, 124-26 (2000). 

The FAA points out that § 106(l)’s “invocation of section

40122(a) of title 49 incorporates a special process involving

consultation, negotiation, mediation, and notification. If the

parties cannot agree on compensation and benefits after

consulting and negotiating, the Federal Mediation and

Conciliation Service is brought in to help [the parties] reach an
8

agreement. Then, if the parties still cannot agree, the FAA is

authorized to implement its proposed changes if it follows a

procedure of notifying Congress and waiting a period of 60

days.” Br. for FAA as Amicus Curiae at 3. 

The parties disagree over the import of 49 U.S.C. § 106(l).

The FAA argues that § 106(l) divests the FSIP of jurisdiction

over bargaining impasses between the FAA and union

bargaining agents with respect to “compensation and benefits.”

In other words, the agency claims that it is only required to

bargain “to the extent provided for in section 40122(a).” And

under § 40122(a)(2), the FAA cannot be required to use the

services of the FSIP. The Unions disagree, pointing out that the

first line of § 106(l) says “[e]xcept as provided in subsection[ ]

. . . (g) of section 40122,” and that § 40122(g) in turn expressly

incorporates Chapter 71 bargaining rights. Neither the Panel nor

the Authority has taken a position on the matter.

C. The 2003 Bargaining Impasses and the FSIP

NATCA represents around 16,000 employees of the FAA.

After a lengthy period of negotiating with the FAA on behalf of

11 bargaining units, involving approximately 1800 union

members, the parties reached a bargaining impasse. When their

attempt to reach resolution with the assistance of the Federal

Mediation and Conciliation Service failed, NATCA filed a

formal Request for Assistance from the Impasses Panel on July

8, 2003. During the same month, PASS filed a series of formal

Requests for Assistance from the Panel when its efforts to

negotiate with the FAA on behalf of four bargaining units,

representing approximately 4000 FAA employees, had similarly

stalled. 

On September 22, 2003, the FAA responded by filing an

objection to the FSIP’s jurisdiction. Based on its interpretation

of the provisions of the 1996 FAA Act, the FAA argued that the

Unions’ Requests for Assistance should be denied, because
9

Congress had decreed that disputes between the FAA and its

unions concerning changes to the Personnel Management

System should be directed, first, to the Federal Mediation and

Conciliation Service, and then, if agreement cannot be reached,

to Congress. The FSIP had no role to play, according to the

FAA. In this case, the Federal Mediation and Conciliation

Service procedure had been exhausted, so the proper remedy,

the FAA argued, was for the FAA to make the required

submission to Congress. 

The Unions replied in turn that the FAA’s construction of

the 1996 FAA Act was wrong. The crux of the Unions’

argument before the Panel was that 49 U.S.C. § 40122(a)

governs procedures for negotiating changes to the Personnel

Management System and that subsection (a) has no application

in the context of recurring collective bargaining between the

FAA and its unionized employees. And, further, according to

the Unions, 49 U.S.C. § 40122(g) expressly confirms that

Chapter 71, which governs labor-management relations, applies

to collective bargaining disputes between the FAA and unions

representing agency employees. 

On January 9, 2004, the Panel issued its decisions. In each

case, the Panel explained that “[a]fter due consideration of the

request for assistance . . . the Panel in accordance with its

regulations, 5 C.F.R. § 2471.6(a)(1), declines to assert

jurisdiction because it is unclear whether the Panel has the

authority to resolve the parties’ impasse.” Department of

Transportation, Federal Aviation Administration, Washington,

DC and NATCA, AFL-CIO, Case No. 03 FSIP 144 at 1 (Jan. 9,

2004), reprinted in J.A. 25 (“NATCA Decision”); Department of

Transportation, Federal Aviation Administration, Washington,

DC and PASS, AFL-CIO, Case Nos. 03 FSIP 149, 150, 151, and

157 at 1 (Jan. 9, 2004), reprinted in J.A. 29 (“PASS Decision”).

The Panel found that the FAA “ha[d] raised arguable questions

concerning whether the Panel has the authority to resolve
10

collective bargaining disputes over the compensation and

benefits of FAA’s bargaining-unit employees.” NATCA

Decision at 3, reprinted in J.A. 27; PASS Decision at 4,

reprinted in J.A. 32. The Panel thus concluded that the various

“statutory provisions subject to conflicting interpretations[ ]

must be addressed in an appropriate forum before the Panel

commits its resources to assist the parties in resolving the merits

of their impasse.” NATCA Decision at 4, reprinted in J.A. 28

(emphasis added); accord PASS Decision at 4, reprinted in J.A.

32. The Panel assured the parties that its determination would

not prejudice any party’s right to file another request for

assistance should an appropriate forum determine that the FSIP

indeed continues to have jurisdiction over collective bargaining

disputes between the FAA and the Unions over compensation

and benefits. Id. The FSIP’s Letter to PASS added that its

determination was neither an explicit nor implicit endorsement

of the FAA’s statutory interpretation. See PASS Decision at 4

n.4, reprinted in J.A. 32 n.4.

On January 30, 2004, the Unions filed suit against the FSIP

and the Authority in the District Court. The Unions sought a

declaration that the Panel’s decisions violated its mandatory

statutory duties under 5 U.S.C. § 7119 and thereby deprived

NATCA, PASS, and the affected FAA employees of their

statutory rights. See Nat’l Air Traffic Controllers Ass’n v. Fed.

Serv. Impasses Panel, CA No. 04-138, 2005 WL 418016, at *2

(D.D.C. Feb. 22, 2005). The Unions also sought an order

directing the Panel to provide assistance in resolving the

Unions’ impasses with the FAA. Apparently, that same day, in

accordance with the procedures set forth in 49 U.S.C. §

40122(a)(2), the FAA submitted to Congress its final bargaining

proposals for the 11 NATCA-represented units, together with a

statement that it intended to impose the agency’s proposed

changes sixty days following the transmittal. 
11

On February 22, 2005, the District Court granted summary

judgment to the FSIP and the FLRA, holding that it lacked

jurisdiction under Leedom to entertain the Unions’ complaints.

The Unions filed a timely notice of appeal on March 9, 2005.

On June 10, 2005, the FAA notified NATCA that it intended to

implement the terms and conditions of employment that the

agency had submitted to Congress. Subsequent developments

indicate that the dispute between NATCA and the FAA is now

moot. The parties agree, however, that the dispute between

PASS and the FAA is not moot, because bargaining between

PASS and the FAA remains at an impasse, just where it was in

2003.

II. ANALYSIS

An order of the FSIP is not reviewable “except in

extraordinary circumstances,” because “Congress precluded

direct judicial review of Panel orders.” Brewer, 735 F.2d at

1498. The Unions argue that this case presents an

“extraordinary circumstance,” because the FSIP had a

mandatory statutory duty under 5 U.S.C. § 7119(c)(5) to assist

the Unions and the FAA in resolving their collective bargaining

impasses. The Unions also contend that there is nothing in the

1996 FAA Act or in the FAA Personnel Management System

that divests the Panel of this mandatory statutory duty, so the

Panel’s refusal to address the parties’ bargaining impasses was

a flagrant abdication of its statutory duty. Thus, according to the

Unions, the District Court plainly erred in declining to exercise

jurisdiction under Leedom. Appellees respond that Leedom

jurisdiction is not available in the instant case, because the

Panel’s determination not to assert jurisdiction was not a

violation of a clear and mandatory statutory provision, and

because the Unions can seek redress from the FLRA for any

alleged wrongdoing in this case.

Ultimately, this case turns on the scope of Leedom

jurisdiction. In Leedom, the relevant statute provided that the
12

National Labor Relations Board (“Board”) “shall not . . . decide

that any unit is appropriate for [collective bargaining] purposes

if such unit includes both professional employees and employees

who are not professional employees unless a majority of such

professional employees vote for inclusion in such unit.” 358

U.S. at 185 (internal quotation marks omitted). The statute was,

thus, “clear and mandatory” with respect to the Board’s

obligations. Id. at 188. The Board nonetheless refused to allow

professional employees to vote before certifying a bargaining

unit that combined professional and nonprofessional employees.

It was therefore clear that the Board had “attempted [to] exercise

. . . power that had been specifically withheld.” Id. at 189.

Under these circumstances, the Court held that the federal

district court had jurisdiction to set aside the certification, even

though Board certification orders are interlocutory and,

therefore, normally not subject to judicial review. See id. at 187,

191. The Court explained that it could not “lightly infer that

Congress does not intend judicial protection of rights it confers

against agency action taken in excess of delegated powers.” Id.

at 190.

This so-called Leedom jurisdiction can apply in cases

involving either negative or positive statutory commands. Ry.

Labor Executives’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655,

661-62 (D.C. Cir.) (en banc), amended by 38 F.3d 1224 (D.C.

Cir. 1994). However, “[t]he invocation of Leedom jurisdiction,

we have emphasized, is extraordinary.” Ass’n of Civilian

Technicians v. FLRA, 283 F.3d 339, 344 (D.C. Cir. 2002)

(internal citation and quotation marks omitted). This point

cannot be overstated, because, as the parties in this case

recognize, Leedom jurisdiction is extremely narrow in scope. 

The Court in Leedom held that the district court had

jurisdiction because the Board’s order was “in excess of its

delegated powers and contrary to a specific prohibition in the

[National Labor Relations] Act,” which “[was] clear and
13

mandatory,” 358 U.S. at 188, and the “‘absence of jurisdiction

of the federal courts’ would [have] mean[t] ‘a sacrifice or

obliteration of a right which Congress’ ha[d] given,” id. at 190.

And “‘[c]entral’ to the decision in Leedom, the Court has since

explained, was the understanding that barring district court

review would have ‘wholly deprive[d] the union of a meaningful

and adequate means of vindicating its statutory rights,”’ because

the union’s members had ‘“no other means, within their

control”’ of obtaining judicial review.” Sturm, Ruger & Co. v.

Chao, 300 F.3d 867, 874 (D.C. Cir. 2002) (citing MCorp, 502

U.S. at 43) (second alteration in original). Thus, in order to

justify the exercise of Leedom jurisdiction, a plaintiff must

show, first, that the agency has acted “in excess of its delegated

powers and contrary to a specific prohibition” which “is clear

and mandatory,” Leedom, 358 U.S. at 188, and, second, that

barring review by the district court “would wholly deprive [the

party] of a meaningful and adequate means of vindicating its

statutory rights,” MCorp, 502 U.S. at 43. The Unions have not

satisfied these requirements in this case.

A. The Statutory Duty Is Not “Clear and Mandatory” in this

Case

In arguing that the FSIP had a mandatory duty to assert

jurisdiction over the parties’ bargaining impasses, the Unions

claim that the Panel’s statutory impasse-resolution role is

mandatory: Congress has expressly declared that the Impasses

Panel “shall promptly investigate any impasse presented to it[,]

. . . 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.” 5 U.S.C.

§ 7119(c)(5)(A). Therefore, according to the Unions, the FSIP

could not decline jurisdiction on the grounds that it was

“unclear” as to whether the Panel had authority to assist in the

resolution of the parties’ impasses.
14

The FSIP responds that its refusal to assist the parties in this

case did not violate 5 U.S.C. § 7119(c)(5)(A), because both the

statute and common sense dictate that, before exercising any

purported authority, the Panel should assure itself that a

collective bargaining dispute is within its jurisdiction. Indeed,

the Panel notes that its regulations clearly permit the FSIP to

“[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.” 5 C.F.R. § 2471.6(a)(1). The Panel also claims

that, consistent with longstanding practice, the FSIP often

declines to assist in the resolution of parties’ bargaining

impasses when the Panel’s jurisdiction is uncertain. 

As noted above, the FAA has taken the position, both before

the FSIP and in this court, that 49 U.S.C. §§ 106(l) and 40122(a)

divest the Panel of jurisdiction over collective bargaining

disputes between the FAA and its unionized employees over

compensation and benefits. And the Unions, as noted above,

have consistently maintained that the FAA’s position is plainly

wrong, because nothing in the 1996 FAA Act abrogates Chapter

71’s applicability to collective bargaining between the FAA and

the Unions, and thus nothing in that Act changes the Impasses

Panel’s mandatory jurisdiction over collective bargaining

impasses between the FAA and the Unions. Rather, according

to the Unions, § 40122(a) only governs the process of

“developing and making changes to the personnel management

system,” 49 U.S.C. § 40122(a)(1), not changes to collective

bargaining agreements. And § 40122(g) and the FAA’s

Personnel Management System expressly provide that the

process of collective bargaining between the FAA and the

exclusive bargaining representatives of its employees is to be

governed by Chapter 71 on the same terms as that statute

governs the process of collective bargaining between all other

federal agencies and the representatives of their employees. In

other words, the Unions contend that § 40122(a) does not
15

purport to override § 40122(g), and that §106(l) is not to the

contrary when read as a whole. 

Both the FAA and the Unions have raised compelling

arguments regarding the proper interpretation of the disputed

statutory provisions. It is precisely because of this that we

cannot conclude that the Panel’s decisions in this case

contravened a clear and specific statutory mandate, as required

by Leedom. See 358 U.S. at 188. On the record before us, it

appears that the Panel reasonably questioned whether it had

jurisdiction to act. Therefore, it cannot be said that the FSIP

violated “a specific and unambiguous statutory directive.”

United Food & Commercial Workers, Local 400 v. NLRB, 694

F.2d 276, 278 (D.C. Cir. 1982) (per curiam). 

B. The Unions Have a Meaningful and Adequate Means of

Vindicating Their Alleged Statutory Rights

Even if the Unions’ view of the Panel’s jurisdiction is

correct, they still could not assert jurisdiction under Leedom,

because they have not been “wholly deprive[d] . . . of a

meaningful and adequate means of vindicating [their alleged]

statutory rights.” MCorp, 502 U.S. at 43. The brief to this court

submitted on behalf of the FSIP and the FLRA strenuously

contends that the Unions’ grievances in this case should be

presented to and addressed by the FLRA. We agree. If their

claims have merit, the Unions can vindicate their statutory rights

and gain appropriate redress before the FLRA.

In all of its arguments – to the FSIP and to this court – the

FAA has made it clear that, in its view, it has no duty to

participate in proceedings before the Panel to resolve collective

bargaining impasses between the agency and the Unions. In

other words, the FAA has refused to bargain under the auspices

of the Panel, because it believes that the agency has no legal

obligation to submit to the FSIP’s jurisdiction in matters

involving compensation and benefits of FAA employees. If the
16

FAA’s proffered interpretation of the relevant statutes is wrong,

then the agency’s declaration that it will not appear before the

FSIP is undoubtedly an unfair labor practice. 

An agency engages in an unfair labor practice when it

“refuse[s] to consult or negotiate in good faith with a labor

organization as required by [Chapter 71].” 5 U.S.C.

§ 7116(a)(5). Because “it ‘is well established that the

procedures of the Panel are part of the collective bargaining

process,’” Am. Fed’n of Gov’t Employees v. FLRA, 778 F.2d

850, 855 (D.C. Cir. 1985) (“AFGE”) (internal citation omitted),

the obligation to bargain under the statute obviously includes

participation in proceedings before the FSIP. 

Furthermore, the FLRA has held that, where an agency has

a duty to negotiate, a unilateral change in conditions of

employment is a refusal to consult or negotiate in good faith and

thus an unfair labor practice. See, e.g., Fed. Bureau of Prisons,

Fed. Corr. Inst. Bastrop, Tex., 55 F.L.R.A. 848, 852 (1999).

Therefore, if the FAA refuses to participate in proceedings

before the Panel to resolve collective bargaining impasses

between the agency and the Unions and then unilaterally

implements its proposals, the Unions will have an additional

basis for asserting unfair labor practice charges before the

FLRA.

In short, if the Unions’ interpretation of the disputed

statutory provisions is correct, then it is clear that they have

viable unfair labor practice charges that can be raised with and

addressed by the FLRA. Thus, the Unions are not without

possible redress for the alleged violations of their statutory

rights.

It is also clear that any alleged unfair labor practices must

be addressed in the first instance by the FLRA – not by the

FSIP, the District Court, or this court. See AFGE, 778 F.2d at

854 (explaining that “[t]he Authority has held that” Chapter 71’s
17

grant of jurisdiction to the FLRA to resolve issues regarding a

party’s duty to bargain in good faith “preclude[s] the Impasses

Panel from considering negotiability issues”); Steadman v.

Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d 963, 966

(D.C. Cir. 1990) (finding that the “district judge improperly

interjected the federal judiciary, at a premature stage into

[Chapter 71’s] carefully developed system of administrative

review,” by adjudicating the parties’ dispute before an unfair

labor practice charge had been filed with the Authority); EEOC

v. FLRA, 476 U.S. 19, 23 (1986) (per curiam) (agreeing that

except in extraordinary circumstances the Courts of Appeals are

without jurisdiction to consider an issue not raised before the

FLRA). Matters such as statutory unfair labor practice charges,

which are properly within the jurisdiction of the FLRA, should

be addressed by the Authority in the first instance to allow it to

“bring[ ] its expertise to bear on the resolution of those issues.”

EEOC v. FLRA, 476 U.S. at 23.

III. CONCLUSION

For the reasons stated in this opinion, the judgment of the

District Court is hereby affirmed.

So ordered.