Appeals Court Rejects Union Attempt to Become Party in Challenge to Member’s Removal

A bargaining unit employee was serving a one-year probationary period when he was removed two weeks before it was set to expire. His union, the influential National Air Traffic Controllers Association (NATCA), filed a grievance of the removal, and sought arbitration. On February 26, 2024, the arbitrator denied the union grievance. Two months later, the union appealed the arbitrator’s decision to the United States Court of Appeals for the Federal Circuit. The Federal Circuit’s decision hinged on whether a union, rather than a member of the union, could file an appeal with the court.

After NATCA filed the appeal, the Federal Aviation Administration moved to dismiss it. The union opposed dismissal, and filed a motion of its own asking the employee-member to be recognized as a party to the appeal.

The Federal Circuit’s decision, which was brief, cited to a 2023 case with similar contours. That case, American Federation of Government Employees, Local 1367 v. Department of the Air Force, 51 F.4th 952 (Fed. Cir. 2023) (“AFGE”). In that case, the appeals court also considered whether a union itself could appeal an arbitrator’s decision. According to the appeals court, “longstanding precedent,” as well as the rules of statutory interpretation, required it to rule that “only the employee” can appeal an unfavorable arbitration decision. In AFGE, the court held that “unions lack standing to initiate appeal” under several applicable federal laws, including 5 U.S.C. § 7703(a)(1) (appeals from MSPB decisions) and 5 U.S.C. § 7121(f) (federal labor law pertaining to appeals from proceeding governed by a bargained-for grievance procedure).

In AFGE, the appeals court also ruled out the possibility that an employee-party could be substituted into the case to avoid dismissal after the union files the appeal. In doing so, it held that the Federal Rules of Appellate Procedure did not allow for such a substitution if the party being substituted out, the original party, lacked standing to initiate the appeal in the first place. Here, though, the union did not seek to substitute itself out for the employee, but instead to add the employee as a party alongside the union. The Federal Circuit held “that distinction makes no difference because NATCA was never a proper party to file a petition.”

And although the union argued that dismissal would be inappropriate because it had the right to assert the claims of its members on a theory of associational standing, the Federal Circuit rejected that argument also.

This case leaves little room for maneuvering for labor groups seeking to file appeals on behalf of their members, and reinforces that the employees themselves must file the appeal as a party, even if their union will be involved in the litigation, or in a representative capacity.

Read the full opinion here: NATCA v. FAA.