U.S. Capitol Police v. Office of Compliance

Decision Date06 November 2018
Docket Number2018-1504,2017-2061
Parties UNITED STATES CAPITOL POLICE, Petitioner v. OFFICE OF COMPLIANCE, Respondent United States Capitol Police Labor Committee, Intervenor United States Capitol Police, Respondent v. Office of Compliance, Applicant Fraternal Order of Police, District of Columbia Lodge No. 1, U.S. Capitol Police Labor Committee, Intervenor
CourtU.S. Court of Appeals — Federal Circuit

Frederick M. Herrera, Office of Employment Counsel, United States Capitol Police, Washington, DC, argued for petitioner in 17-2061 and respondent in 18-1504. Also represented by Rafique Omar Anderson, Kelly Marissa Scindian in 17-2061.

John D. Uelmen, Office of the General Counsel, United States Office of Compliance, Washington, DC, argued for respondent in 17-2061 and applicant in 18-1504. Also represented by Julia Akins Clark, Simone Jenkins.

Megan Kathleen Mechak, Woodley & McGillivary LLP, Washington, DC, argued for intervenors.

Before Dyk, Linn, and Taranto, Circuit Judges.

Dyk, Circuit Judge.

These appeals involve a negotiability dispute between the U.S. Capitol Police ("Police") and the Fraternal Order of Police, District of Columbia Lodge No. 1 ("Union"). The dispute arose during negotiations for a collective bargaining agreement ("CBA") to replace the parties’ current CBA. The Police proposed draft language that changed the existing agreement by excluding employee terminations from the scope of the CBA’s grievance and arbitration procedures, and the Union proposed removing the Police’s proposed language and adding language to ensure that terminations would continue to be covered by the grievance procedures. The Police refused to negotiate over the Union’s proposals. The Office of Compliance Board of Directors ("Compliance Board") found the Union’s proposals negotiable and ordered the Police to bargain with the Union.

The Police petitions for review of the Compliance Board’s negotiability decision, and the Office of Compliance petitions for enforcement of that decision. We dismiss the Police’s petition for lack of jurisdiction, but, applying the Administrative Procedure Act ("APA") standard of review, 5 U.S.C. § 706, we grant the enforcement petition because the Compliance Board’s decision is not contrary to law or otherwise invalid.

BACKGROUND
I

The Congressional Accountability Act of 1995 ("CAA") conferred several rights and protections to employees of the legislative branch. In this respect, the CAA was modeled after and incorporated various labor and employment statutes of the executive branch, including portions of the Federal Service Labor-Management Relations Statute ("FSLMRS") of title 5, which governs labor-management relations of executive branch employees. See 2 U.S.C. §§ 1302(a), 1351.

Section 1351 of the CAA gives legislative branch employees the right "to engage in collective bargaining with respect to conditions of employment through" their chosen representative and requires agencies to bargain in good faith. 5 U.S.C. §§ 7102, 7117 (incorporated by 2 U.S.C. § 1351(a)(1) ). The CAA does not define "conditions of employment," but provides that "[t]he [Compliance] Board shall, pursuant to section 1384 of this title, issue regulations to implement [ § 1351 ]," and "the regulations issued ... shall be the same as substantive regulations promulgated by the Federal Labor Relations Authority [ ("FLRA") ] to implement the statutory provisions referred to in [ § 1351(a) ]," with some exceptions. 2 U.S.C. § 1351(d).

The Compliance Board promulgated regulations ("Office of Compliance Regs.") under § 1351(d). See 142 Cong. Rec. 16983–17001 (1996) (publishing the Office of Compliance Regs.); H.R. Res. 504, 104th Cong. (1996) (approving the Office of Compliance Regs.); S. Res. 304, 104th Cong. (1996) (same). The regulations tracked the FSLMRS language in 5 U.S.C. § 7103(a)(14), defining "conditions of employment" as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters ... [t]o the extent such matters are specifically provided for by Federal statute." Office of Compliance Regs. § 2421.3(m).

The CAA further requires agencies to bargain in good faith over CBA proposals concerning conditions of employment "to the extent not inconsistent with Federal law." 5 U.S.C. § 7117 (incorporated by 2 U.S.C. § 1351(a)(1) ). That is, negotiation is not required when the proposed language for the CBA would be "inconsistent with Federal law." Id.

A negotiability dispute arises when a legislative branch agency alleges that it has no duty to bargain over a matter, for example, as in this case, because the proposal is inconsistent with federal law. When that happens, a union may either file a negotiability petition directly with the Compliance Board, id. § 1351(c)(1), or charge the agency with an unfair labor practice, which the Compliance Board’s General Counsel investigates, id. § 1351(c)(2). If the General Counsel concludes the charge states an unfair labor practice, then the General Counsel may file a complaint with the Office of Compliance. Id.

II

The parties’ employment relationship here is governed by a CBA that was set to expire in 2013, but remains in effect until the parties negotiate a successor CBA. The current CBA provides procedures for the settlement of grievances and lists fifteen "matters [that] are excluded from coverage of this grievance procedure." J.A. 88–89.1 Terminations of employees is not one of those matters. During negotiations for a successor CBA, the Police presented the Union with draft language that would add employee terminations to the list of matters excluded from the scope of the grievance procedures. The Police’s proposed additions are underlined below.

Section 32.03:

The following matters are excluded from coverage of this grievance procedure:
***
J. Policies, decisions, or directives of Congressional authorities and entities, including approving of terminations of employees by the Capitol Police Board; provided that the impact and implementation of those policies by the Department will be negotiable to the extent permitted by law;
***
P. Any the [sic] termination of employment of a bargaining unit employee.

J.A. 196.

The Union proposed removing those additions. The Union also proposed including language in section 32.12’s arbitration procedures to "ensure that terminations of bargaining unit employees are covered by the grievance and arbitration procedure and set the timelines for grieving such removals." J.A. 14. The Union’s proposed additions are underlined below.

Section 32.12:

The Union may, within thirty (30) days following receipt of the Chief’s, or designee’s, final decision, notify the Chief of Police by facsimile that it desires the matter to be submitted to arbitration. For the purposes of termination of employment, the date of the final decision is the date the employee is removed from [Police] payroll .... In cases where the Chief determines that removal is an appropriate penalty under the circumstances, the Chief shall notify the employee as soon as possible of this determination. However, the disciplinary removal shall not be ripe for arbitration until the day after the employee is removed from the Department’s payroll.

J.A. 200. The Police contended that the Union’s proposals were nonnegotiable (i.e., that the Police need not negotiate with respect to those proposals) and refused to negotiate with the Union. The Union elected to file a negotiability petition with the Compliance Board.

III

Before the Compliance Board, the Police argued that the proposals were "specifically provided for by" the U.S. Capitol Police Technical Corrections Act of 2009 ("TCA") and thus, were not "conditions of employment." This was so because the TCA amended the CAA to provide the Capitol Police Board ("Police Board") with review and approval of employee termination recommendations, and the Police Board construed those amendments as making Police Board decisions final and not reviewable. Additionally, even if the proposals were considered conditions of employment, the Police contended that the proposals would be inconsistent with federal law and therefore nonnegotiable. The Police only raises the inconsistent with federal law issue on review in this court.

The Compliance Board did not refer the petition to a hearing officer, and no party requested a hearing before a hearing officer. The Compliance Board then decided the matter in the first instance. It concluded that the Union’s proposals involved negotiable conditions of employment and were not "specifically provided for" by the TCA or inconsistent with federal law. It stated that the TCA does not provide the Police Board with the sole and exclusive authority regarding terminations, and nothing in the TCA "states that termination decisions approved by the [Police Board] are not subject to arbitration." J.A. 9. Thus, the Compliance Board ordered the Police to bargain with the Union over the proposals. In No. 2017-2061, the Police petitions for review of the Compliance Board’s decision.

In the meantime, the Union attempted to bargain with the Police over its proposals that the Compliance Board found negotiable. The Police refused to negotiate with the Union while its petition for review was pending. The Police does not dispute that it has not complied with the bargaining order. In No. 2018-1504, the Office of Compliance seeks an enforcement order compelling the Police to bargain.

DISCUSSION
I. Jurisdiction

The Police’s petition for review is the first of its kind before this court. We first must determine whether this court has jurisdiction over the Police’s petition for review of the Compliance Board’s negotiability decision. Section 1410 of title 2 provides that "[e]xcept as expressly authorized by sections 1407 [and other sections not relevant to this appeal], the compliance or noncompliance with the...

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