Biden fills out impasse panel with union officials, academics

3 minute read

U.S. President Joe Biden during a news conference in the Roosevelt Room of the White House in Washington, D.C. August 22, 2021. REUTERS/Joshua Roberts

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  • White House stocks labor panel after dumping Trump-era members in February
  • Panel oversees impasses between agencies, unions and can impose contract terms
  • Biden's picks include several former panel members

(Reuters) - President Joe Biden on Monday said he was appointing a slate of 10 academics, union lawyers, mediators and a former chairman of the National Labor Relations Board to a federal panel that oversees impasses between federal agencies and their employees' unions.

Appointees to the Federal Service Impasses Panel (FSIP) are traditionally not confirmed by the Senate because the panel is subordinate to the Federal Labor Relations Authority, though an unsuccessful Trump-era lawsuit by the largest federal employee union had challenged that practice.

FSIP mediates bargaining impasses between federal agencies and unions, and can impose contract terms when parties fail to reach an agreement. The agency is relatively obscure but can have a major impact on the ability of presidential administrations to overhaul civil-service rules.

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Biden's appointees include Mark Pearce, who chaired the NLRB during the Obama administration and is now executive director of the Workers’ Rights Institute at Georgetown University Law Center; Martin Malin, a labor law professor at Chicago-Kent College of Law who previously served on FSIP; and Wynter Allen, a partner at Alden Law Group in Washington, D.C., who represents workers and unions.

Biden also tapped former union officials including Pamela Schwartz, the former president of a union that represents employees of the U.S. Patent and Trademark Office and Howard Friedman, a former trademark attorney who was president of a different union of PTO workers.

Other appointees include Edward Hartfield, a longtime mediator and arbitrator who served at FSIP during the Obama and Clinton administrations; Marvin Johnson, another former FSIP member who is the executive director of the Center for Alternative Dispute Resolution at Bowie State University; and Joseph Slater, a professor at the University of Toledo College of Law and former labor lawyer.

Biden in February asked all 10 FSIP members appointed by his predecessor Donald Trump to step down. Eight resigned and two were removed.

The Trump-era panel, which included a number of members associated with conservative and anti-union groups, had been criticized by federal-sector unions for issuing a series of rulings that largely favored agencies.

In a 2019 lawsuit, the American Federation of Government Employees union claimed Trump's appointments to the FSIP were invalid because they were not confirmed by the Senate.

AFGE argued that FSIP members are "principal officers" subject to Senate confirmation under the Appointments Clause of the U.S. Constitution, because their decisions are final and they have the power to hold hearings and issue subpoenas.

A federal judge in Washington, D.C., last year said the lawsuit became moot when the AFGE concluded contract negotiations with the Department of Housing and Urban Development under "ground rules" imposed by FSIP.

Everett Kelley, the president of AFGE, praised Biden's picks in a statement on Monday.

“We are confident that these members will fairly resolve labor disputes between unions and agencies and restore dignity and fairness to the panel and its important work on behalf of federal employees," Kelley said.

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.