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

Written By Conor D. Dirks

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.

Conor D. Dirks

Conor D. Dirks is a Partner at the law firm Shaw Bransford & Roth, where he has practiced law since 2013. Mr. Dirks’ law practice concentrates on representing federal officials and employees in all aspects of federal personnel employment law. Mr. Dirks litigates cases in federal courts, and administrative forums such as the United States Merit Systems Protection Board, U.S. Court of Appeals for the Federal Circuit, Foreign Service Grievance Board, and U.S. Equal Employment Opportunity Commission.

Mr. Dirks represents federal employees of all grade levels confronted with proposed disciplinary action, and also advises employees subject to federal investigations, including investigations conducted by Inspectors Generals, Congress, the Office of Special Counsel, the Department of Justice’s Office of Professional Responsibility, or administrative investigations by the employee’s own agency. He has briefed questions of due process in federal court, and has years of experience with a wide range of legal issues arising in federal employment. Mr. Dirks also represents federal whistleblowers and has assisted many employees in successfully disclosing wrongdoing at their agency to the Office of Special Counsel or to an Inspector General, and in seeking corrective action for whistleblower retaliation.

In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.

In law school, Mr. Dirks clerked at Shaw Bransford & Roth. He conducted legal research on a wide array of federal employment cases. He aided in the preparation of arguments for hearing before the Merit Systems Protection Board and Equal Employment Opportunity Commission. Mr. Dirks also served as a clerk at the High Court of the Republic of the Marshall Islands, where he updated and modernized the Marshall Islands Rules of Civil Procedure, the Marshall Islands Rules of Criminal Procedure, and the Juvenile Rules to reflect changes in the United States Federal Rules of Civil Procedure and electronic discovery practices. As a clerk at the high court, he helped craft decisions in cases involving government fraud, shareholder derivative actions, and family law, among others.

Mr. Dirks has also covered the Washington Wizards for the ESPN Truehoop Network since 2012, where he has provided NBA game coverage and long-form articles as a credentialed member of the media. His work has been featured and linked on a variety of major outlets, including Yahoo! Ball Don’t Lie, SBNation and ESPN.

https://www.shawbransford.com/conor-d-dirks
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