U.S. Capitol Police v. Office of Compliance
| Decision Date | 06 November 2018 |
| Docket Number | 2018-1502 |
| Citation | 908 F.3d 776 |
| Parties | 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 |
| Court | U.S. Court of Appeals — Federal Circuit |
Frederick M. Herrera, Office of Employment Counsel, United States Capitol Police, Washington, DC, argued for respondent.
John D. Uelmen, Office of the General Counsel, United States Office of Compliance, Washington, DC, argued for applicant. Also represented by Julia Akins Clark.
Megan Kathleen Mechak, Woodley & McGillivary LLP, Washington, DC, argued for intervenor.
Before Dyk, Linn, and Taranto, Circuit Judges.
The United States Capitol Police (Police) and the Fraternal Order of Police, District of Columbia Lodge No. 1, U.S. Capitol Police Labor Committee (Union) operate under a collective bargaining agreement that, although set to expire in June 2013, remains in force until the parties reach a new agreement. Pursuant to that agreement, the Police notified the Union of a variety of changes it planned to make—at least in language or format—to the Police’s personnel policies. The Union responded by submitting its own proposals for personnel-policy changes. The Police declined to negotiate over some of the Union’s proposals, of which twelve are at issue in the present case.
The Union filed petitions with the Office of Compliance Board of Directors (Compliance Board), seeking review of the negotiability of the proposals over which the Police had declined to negotiate. In March 2017, the Compliance Board ruled for the Police as to some of the proposals but for the Union as to others, including the twelve at issue here; and as to the latter, the Compliance Board ordered the Police to bargain with the Union. The Police filed petitions with this court to review the Compliance Board’s negotiability decisions, and the Union intervened in support of the Office of Compliance. In the meantime, the Police refused to bargain with the Union, so the Office of Compliance petitioned this court to enforce the Compliance Board’s decisions. This case is the enforcement case involving those twelve proposals.
In related cases decided today, we hold that we lack jurisdiction over the Police’s petitions for direct review of the Compliance Board’s negotiability decisions but that we have jurisdiction over the Office of Compliance’s petitions to enforce such decisions. See U.S. Capitol Police v. Office of Compliance , Nos. 2017-2061, 2018-1504, 908 F.3d 748, 753–55, 2018 WL 5795975 (Fed. Cir. Nov. 6, 2018). We also hold that, in ruling on the Office of Compliance’s petitions for enforcement, we review the underlying negotiability decisions under the default standard of review stated in the Administrative Procedure Act (APA), 5 U.S.C. § 706. U.S. Capitol Police , Nos. 2017-2061, 2018-1504, 908 F.3d at 758–60. We further hold that whether the Compliance Board refers a negotiability petition to a hearing officer is a matter for the sound exercise of discretion by the Compliance Board, not a matter of statutory compulsion, and that the opportunity for such a referral may be lost if not timely requested. Id. at 908 F.3d at 758–60.
As a result of those rulings, we today separately dismiss the Police’s petitions for direct review of the Compliance Board’s negotiability decisions regarding the twelve proposals at issue here. See U.S. Capitol Police v. Office of Compliance , Nos. 2017-2060, -2062, -2063, -2064, 741 Fed.Appx. 800, 2018 WL 5809800 (Fed. Cir. Nov. 6, 2018). We have jurisdiction over the present enforcement action by the Office of Compliance under 2 U.S.C. § 1407(a)(2). In this action, we review the underlying negotiability determinations under the APA standard.
For the reasons set forth below, we grant the Office of Compliance’s petition for enforcement of the Compliance Board’s order with respect to Proposals F, K, P, R, and S. We deny the petition for enforcement with respect to Proposals D, E, G, H, L, and 8. We set aside the Compliance Board’s order with respect to Proposal I and remand for a determination of whether that proposal involves a change in conditions of employment.
In the Congressional Accountability Act (CAA) of 1995, Pub. L. No. 104-1, 109 Stat. 3 (), Congress provided certain legislative branch employees with some of the same collective bargaining rights as those enjoyed under other statutes by certain executive branch employees. Executive branch employees are provided such rights by the Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.S.C. §§ 7101 – 7135, which is generally implemented by the Federal Labor Relations Authority (FLRA), whose determinations are reviewable by the D.C. Circuit and regional circuits. The CAA, rather than independently setting forth its own comparable set of provisions for legislative branch employees, achieves its aim largely by expressly incorporating specified provisions of the FSLMRS. See 2 U.S.C. § 1302(a)(7) ; id. § 1351(a)(1) (adopting 5 U.S.C. §§ 7102, 7106, 7111 – 7117, 7119 – 7122, 7131 ). Like the parties in this case and the Office of Compliance, we look to the legal standards articulated by other courts and the FLRA under the FSLMRS provisions made applicable to issues in this case by the CAA.
Those provisions begin with 5 U.S.C. § 7102(2), which establishes that certain employees have the right to "engage in collective bargaining with respect to conditions of employment through representatives." Section 7117 adds that an agency has a duty to bargain with its employees’ union in good faith under various circumstances. And those FSLMRS provisions, along with others, establish limits on the agency’s duty to bargain.
An agency is not under an obligation to bargain with a union over an agency practice that is within the scope of the parties’ existing collective bargaining agreement.
U.S. Dep’t of Homeland Security, Customs & Border Prot. v. FLRA , 647 F.3d 359, 362 (D.C. Cir. 2011) () (quoting EEOC, Wash., D.C. , 52 F.L.R.A. 459, 460 (1996) ). An agency need not bargain over a practice that is not in fact a "change in a policy, practice, or procedure affecting unit employees’ conditions of employment." Nat’l Treasury Emps. Union v. FLRA , 745 F.3d 1219, 1222 (D.C. Cir. 2014). Additionally, "the FLRA has interpreted the statute to include an unwritten de minimis exception," and the D.C. Circuit has "deferred to its interpretation." American Fed’n of Gov’t Emps. v. FLRA , 446 F.3d 162, 165 (D.C. Cir. 2006) ; see also U.S. Dep’t of the Air Force, Air Force Materiel Command, Space & Missile Systems Ctr., Detachment 12, Kirtland Air Force Base, N.M. , 64 F.L.R.A. 166, 173 (2009) ( this doctrine). And even when an agency practice meets the foregoing change standard, the agency need not bargain over a union proposal that is not "reasonably related" to the changes. Patent Office Prof’l Ass’n (POPA ), 66 F.L.R.A. 247, 253 (2011) ().
A union’s proposals, to be within the duty to bargain, also may not violate certain enumerated statutory rights of the agency. See 5 U.S.C. § 7106 (titled "Management rights"). Of relevance here, the FSLMRS states that "nothing in this chapter shall affect the authority of any management official of any agency ... in accordance with applicable laws ... to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees" or "to assign work." 5 U.S.C. § 7106(a)(2)(A)–(B). But a union’s proposal does not violate those rights "simply because it requires an agency to take some action." Nat’l Fed’n of Fed. Emps., Local 2099 , 35 F.L.R.A. 362, 368 (1990). And the management rights are expressly subject to three limitations. 5 U.S.C. § 7106(b).
Two are important here. First, nothing in § 7106"shall preclude any agency and any labor organization from negotiating ... procedures which management officials of the agency will observe in exercising" one of the statutory rights. 5 U.S.C. § 7106(b)(2). "For purposes of determining what constitutes a ‘procedure’ within the meaning of this provision ... it is pertinent to ask ... whether ‘implementation would directly interfere with the agency’s basic right ... [reserved] under section 7106(a).’ " American Fed’n of Gov’t Emps., AFL-CIO, Local 2782 v. FLRA , 702 F.2d 1183, 1186 (D.C. Cir. 1983) (emphasis and internal quotation marks omitted) (quoting Dep’t of Def., Army-Air Force Exch. Serv. v. FLRA , 659 F.2d 1140, 1159 (D.C. Cir. 1981) ).
Second, an agency’s § 7106 management rights do not preclude requiring negotiation over "appropriate arrangements for employees adversely affected by the exercise" of one of management’s statutory rights. 5 U.S.C. § 7106(b)(3). To determine whether this provision is implicated, the FLRA applies a two-step test. Initially, the FLRA "examine[s] the record in each case to ascertain as a threshold question whether a proposal is in fact intended to be an arrangement for employees adversely affected by management’s exercise of its rights." Nat’l Ass’n of Gov’t Emps., Local R14-87 (NAGE ), 21 F.L.R.A. 24, 31 (1986), overruling on other grounds recognized by U.S. Dep’t of the Treasury, IRS, Office of Chief Counsel, Wash., D.C. v. FLRA , 739 F.3d 13 (D.C. Cir. 2014). Then, the FLRA "determine[s] whether the arrangement is appropriate or whether it is inappropriate because it excessively interferes" with one of management’s statutory rights, according to "the totality of facts and circumstances in each case." Id. at 31, 33.
We now turn to the specifics of the...
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