American Federation of Gov. Employees v. Flra, 05-1268.

• Decision Date: 05 May 2006
• Docket Number: No. 05-1268.,05-1268.
• Citation: 446 F.3d 162
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, National Border Patrol Council, AFL-CIO, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

446 F.3d 162

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, National Border Patrol Council, AFL-CIO, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 05-1268.

United States Court of Appeals, District of Columbia Circuit.

Argued March 20, 2006.

Decided May 5, 2006.

Kevin M. Grile argued the cause for petitioner. With him on the briefs were Mark D. Roth and Charles A. Hobbie.

David M. Shewchuk, Attorney, Federal Labor Relations Authority, argued the cause for respondent. With him on the brief was William R. Tobey, Acting Solicitor.

Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge.

The National Border Patrol Council ("the Union") petitions for review of an order of the Federal Labor Relations Authority ("FLRA" or "the Authority"). The FLRA found that a firearms training policy change by the Bureau of Customs and Border Protection ("the Bureau") did not have a greater-than-de-minimis effect on the working conditions of bargaining-unit employees. Because the FLRA unreasonably deemed the change de minimis in its effect, we grant the petition.

I.

The Union exclusively represents nonsupervisory, border patrol employees within the Bureau, a division of the Department of Homeland Security. Before Congress shifted them to the recently created Bureau, the employees worked for the Immigration and Naturalization Service ("INS"). The Bureau succeeded to INS's obligations under a 1995 collective bargaining agreement, by which the Union and the Bureau continue to abide even though it is now expired. The facts of this case took place during each agency's tenure as employer.

The bargaining unit includes Basic Trainee Officers ("BTOs"), essentially first-year probationary employees. BTOs must meet proficiency standards in firearms skill, physical fitness, and foreign language capability, among other areas. The Bureau may terminate BTOs for deficiency in any of these areas during the probationary period. The Bureau's firearms policy sets out the structure of its firearms training program and the qualifications for trainees' firearms proficiency.

In 1996, the Union and INS bargained over revisions to the firearms policy, including aspects of the policy dealing with training. The revised policy provided for an initial eight-hour training period followed by proficiency testing. To bring deficient BTOs into compliance, the revised policy authorized up to eighty hours of remedial training. During the same period, the Union and INS agreed to a Memorandum of Understanding ("MOU"), which requires the agency to give the Union notice and an opportunity to bargain over changes to the firearms policy. A separate bargaining unit of Bureau employees, represented by a different union, follows the same firearms policy and training regimen.

INS again revised its firearms policy six years later. In pertinent part, it reduced the number of authorized remedial hours for firearms-deficient BTOs from eighty to eight. While mulling over the changes, INS did not notify, bargain with, or otherwise consult with the Union. Upon finalization the agency gave the Union a copy of the revisions. INS claims that by that time, it had already implemented the reduced remedial training hours prior to making the policy change official. Indeed, the Bureau now insists that neither it nor INS ever offered or gave more than eight hours of remedial firearms training to any BTO since 1996.

Claiming that INS committed unfair labor practices while revising the policy, the Union filed a charge with the FLRA in 2002. In the only claim germane to this petition, it asserted that the Bureau violated both statutory and contractual duties to provide notice and an opportunity to bargain over the reduction in remedial training hours. The FLRA General Counsel subsequently issued a complaint against the Bureau alleging violations of 5 U.S.C. § 7116(a)(1) and (5).

In a hearing before an Administrative Law Judge ("ALJ"), the Bureau argued that the reduction in remedial training hours would not have a greater-than-de-minimis effect on working conditions. To prove greater-than-de-minimis effect, the General Counsel called the Union's president to testify. See Social Security Admin. Office of Hearings & Appeals, Charleston, S.C., 59 FLRA 646, 655 (2004) (placing burden of proof on General Counsel). According to the witness, the Bureau fired at least one BTO for firearms deficiency without providing the employee more than eight hours of remedial training. The witness also testified that the Bureau fired at least one nonbargaining-unit employee — under the same firearms policy — without granting eighty remedial training hours.

On this evidence, the ALJ found the effect of the hours reduction "somewhat speculative." Nevertheless, the ALJ concluded that evidence showing the Bureau fired even one BTO after granting only eight remedial training hours sufficed to exceed the de minimis standard. Having found a greater-than-de-minimis effect, the ALJ held that the Bureau had violated both its statutory duty and its contractual duty under the MOU to give notice and bargain over the changes.

The Bureau filed exceptions to the ALJ's ruling, and the FLRA reversed. In the Authority's view, the General Counsel failed to prove that the Bureau had fired any BTO solely for firearms deficiency without providing eighty remedial training hours. In addition, the Authority rejected all evidence related to nonbargaining-unit employees. Accordingly, the Authority held that the General Counsel did not prove greater-than-de-minimis effect, and it therefore concluded that the Bureau had no statutory duty to bargain over the policy revisions. The Authority also held that the absence of a statutory duty to bargain precluded a contractual duty under the MOU.

The Union timely petitions this court for review of the FLRA's order, challenging the Authority's application of the de minimis exception. The Union also argues that even if a change is de minimis, an agency may still lawfully choose to bargain over such a change and that the Bureau was required to do so here in light of a provision in the MOU requiring the Bureau to bargain "to the fullest extent allowable under law." It has since conceded, however, that it waived this issue by failing to raise it before the agency. See 5 U.S.C. § 7123(c). Accordingly, we only address the reasonableness of the FLRA's application of the de minimis exception to the firearms policy revisions.

II.

Federal law requires an agency to "negotiate in good faith" with its employees' chosen representative. 5 U.S.C. § 7116(a)(5). The employer's duty to bargain, however, extends only to bargainable issues, not including a range of matters labeled "management rights." 5 U.S.C. § 7106; see also Nat'l Treasury Employees Union v. FLRA, 437 F.3d 1248, 1249 (D.C.Cir.2006). In addition to these explicit exceptions, the FLRA has interpreted the statute to include an unwritten de minimis exception, and we have deferred to its interpretation. See Ass'n of Admin. Law Judges v. FLRA, 397 F.3d 957, 959 (D.C.Cir.2005) ("AALJ"). Our deference, however, is not without limits: The FLRA has the burden before this court to "show[] that any particular application of the de minimis exception is reasonable." Id. at 963. Because the Authority has not carried that burden, we grant the petition for review.

As we stated in AALJ, "[a] de minimis change is not a proper subject of bargaining not because management has a 'right' to make it...