Federal Education Association Stateside Region v. Federal Labor Relations Authority

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 S TATESIDE R EGION ,
P ETITIONER
v.
FEDERAL LABOR R ELATIONS AUTHORITY ,
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
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.

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KAREN LEC RAFT 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

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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

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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. B ACKGROUND 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 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. 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-

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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.

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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”

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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 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.

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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,

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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

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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.

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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

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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. R EP . 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.

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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.

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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.

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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 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 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.

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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),

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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

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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.

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