U.S. Capitol Police v. Office of Compliance , 908 F.3d 776 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
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
______________________
2018-1502
______________________
Petition for enforcement of decisions of the Board of
Directors of the Office of Compliance in Nos. 16-LM-03
(NG), 16-LM-04 (NG), 16-LM-05 (NG), 16-LM-06 (NG).
______________________
Decided: November 6, 2018
______________________
FREDERICK M. HERRERA, Office of Employment Coun-
sel, 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
2 OOC v. US CAPITOL POLICE
CLARK.
MEGAN KATHLEEN MECHAK, Woodley & McGillivary
LLP, Washington, DC, argued for intervenor.
______________________
Before DYK, LINN, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
The United States Capitol Police (Police) and the Fra-
ternal 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 agree-
ment, 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 Compli-
ance 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 Compli-
ance Board’s negotiability decisions, and the Union inter-
vened 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 en-
forcement case involving those twelve proposals.
OOC v. US CAPITOL POLICE 3
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,
slip op. at 8–12 (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, slip op. at
12–18. 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 Com-
pliance Board, not a matter of statutory compulsion, and
that the opportunity for such a referral may be lost if not
timely requested. Id. at 18–21.
As a result of those rulings, we today separately dis-
miss the Police’s petitions for direct review of the Compli-
ance 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 (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 underly-
ing 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 Compli-
ance Board’s order with respect to Proposal I and remand
for a determination of whether that proposal involves a
change in conditions of employment.
4 OOC v. US CAPITOL POLICE
I
In the Congressional Accountability Act (CAA) of
1995, Pub. L. No. 104-1, 109 Stat. 3 (codified as amended
at 2 U.S.C. §§ 1301–1438), 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. Execu-
tive 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 provi-
sions 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 em-
ployees’ union in good faith under various circumstances.
And those FSLMRS provisions, along with others, estab-
lish 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) (“[D]uring the
OOC v. US CAPITOL POLICE 5
term of a collective bargaining agreement, ‘an agency may
act unilaterally’ with regard to any matter ‘contained in
or covered by’ the agreement.” (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). Addition-
ally, “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 Com-
mand, Space & Missile Systems Ctr., Detachment 12,
Kirtland Air Force Base, N.M., 64 F.L.R.A. 166, 173
(2009) (explaining 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) (“An agency . . .
is not required to bargain over proposals that go beyond
the scope of a proposed change . . . .”).
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
6 OOC v. US CAPITOL POLICE
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 ar-
rangements 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 statuto-
ry rights, according to “the totality of facts and circum-
stances in each case.” Id. at 31, 33.
OOC v. US CAPITOL POLICE 7
II
We now turn to the specifics of the twelve disputed
union proposals in this case. The twelve proposals are
associated with four directives that the Police provided to
the Union pursuant to the parties’ collective bargaining
agreement. The directives address Emergency Suspen-
sions (Proposal 8), Time and Attendance (Proposals K, L,
P, R, and S), Outside Employment (Proposals D, E, F, G,
and H), and Absence and Leave (Proposal I). We consider
the proposals for each directive in turn.
We review the Compliance Board’s rulings on the pro-
posals to ensure that they are neither “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in
accordance with law” nor “unsupported by substantial
evidence.” 5 U.S.C. § 706(2)(A), (E); see also U.S. Capitol
Police, Nos. 2017-2061, 2018-1504, slip op. at 12–18.
Substantial evidence for factual findings means “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” FTC v. Ind. Fed’n of
Dentists, 476 U.S. 447, 454 (1986) (quoting Universal
Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)). 1
A
In the Emergency Suspensions directive, the Police
included new policies for “Suspension without Pay.” In
response, the Union asserted that the new policies were
“unprecedented,” J.A. 646, and it advanced its own pro-
posal, referred to before this court as Proposal 8: “The
[Police] will bear the burden in demonstrating that the
1 The Police has not shown error with respect to the
absence of a referral to a hearing officer. The Police did
not request such a referral before the Compliance Board,
let alone support such a request with a showing of legally
material factual issues that warranted such a referral for
a hearing.
8 OOC v. US CAPITOL POLICE
unpaid suspension will promote the efficiency of service.”
J.A. 647. The Compliance Board concluded that Proposal
8 is negotiable.
That conclusion is contrary to law and must be re-
versed, even if we assume (without deciding) that “the
proposal expressly refers to the [Police]’s continu-
ing suspension of an employee without pay” and “can only
be interpreted to operate after the [Police] has already
suspended an employee without pay.” J.A. 525. The
proposal interferes with the Police’s right to discipline
under 5 U.S.C. § 7106(a)(2)(A). By placing a burden on
the Police to justify its decisions to suspend (or continue
to suspend) employees, Proposal 8 impermissibly narrows
the scope of the agency’s disciplinary authority. See
American Fed’n of Gov’t Emps., Local 1822, 9 F.L.R.A.
709, 711 (1982) (holding that “modifying the substantive
criteria for taking disciplinary action” violates section
7106(a)(2)(A)). Imposing a continuing burden of persua-
sion is properly understood as a substantive, not proce-
dural, matter. See, e.g., Medtronic, Inc. v. Mirowski
Family Ventures, LLC, 134 S. Ct. 843, 849 (2014); Dir.,
Office of Workers’ Comp. Programs, Dep’t of Labor v.
Greenwich Collieries, 512 U.S. 267, 271 (1994). And the
interference with management discipline authority exists
even if Proposal 8 applies only to a continuation, not the
initiation, of a suspension: limiting continuation directly
affects management’s ability to effectuate a suspension
for the period management determines is appropriate.
With respect to Proposal 8, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
denied.
B
The Time and Attendance directive, provided to the
Union in 2016, was a successor to interim guidance on
time and attendance adopted by the Police in 2011. J.A.
383–87. The 2016 directive includes updates to policies
OOC v. US CAPITOL POLICE 9
for using the Police’s electronic time certification system,
WorkBrain. J.A. 390–97. The new directive differs from
the earlier interim guidance in several ways. For exam-
ple, the directive contains nine definitions, whereas the
interim guidance contains only three, and the directive
includes substantive content that does not appear in the
interim guidance, such as a subsection titled “Accounting
for Time Worked.” The Union submitted a variety of
proposals in response to the directive. We first address
Proposals K, P, R, and S, and then we address Proposal L.
1
In Proposal K, the Union proposed to add the follow-
ing language to a directive paragraph titled “Virtual Time
Clock”:
d. Employees who are not able to access a comput-
er or other mobile device while away from a duty
location should notify their first-line supervisor
that they will be unable to enter their daily clock-
in and clock-out times until returning to their du-
ty location. The employee and supervisor can then
either (1) agree that the supervisor will enter the
employee’s clock-in and clock-out times while the
employee is away from the workplace by the em-
ployee notifying the supervisor daily by telephone
or (2) agree that the employee will be permitted to
enter the clock-in and clock-out times for the time
spent away from the duty station within five (5)
workdays of returning to the duty station. Em-
ployees are not required to use their personal
computers to enter their daily clock-in and clock-
out times.
J.A. 400. The Compliance Board concluded that this
proposal is within the Police’s duty to bargain.
The Police opposed bargaining over Proposal K prin-
cipally on the asserted ground that the directive provi-
10 OOC v. US CAPITOL POLICE
sions it responds to do not change conditions of employ-
ment, at least not in a way that is more than de minimis.
But the Compliance Board appropriately considered and
reasonably rejected that contention. The de minimis
threshold for triggering the bargaining duty is not a
demanding one. See, e.g., U.S. Dep’t of the Treasury, IRS,
56 F.L.R.A. 906, 913 (2000) (finding that moving employ-
ees from the ninth floor to the third floor was more than a
de minimis change in working conditions). In the Police’s
submissions before the Compliance Board and this court,
we see no basis for concluding that the Compliance Board
acted contrary to any established legal standard or made
an arbitrary or irrational judgment in determining that
the de minimis threshold was met by the directive’s
various changes from a paper system to an electronic
system, including the changes mentioned above.
The Police suggests that it need not bargain over Pro-
posal K because the proposal is focused on the Police’s
relationship with employees outside the Union’s designat-
ed bargaining unit, and it faults the Compliance Board for
not making a finding about whether that relationship
“vitally affects” employees within the bargaining unit.
See U.S. Dep’t of the Navy, Naval Aviation Depot, Cherry
Point, N.C. v. FLRA, 952 F.2d 1434, 1440 (D.C. Cir. 1992)
(addressing such a situation). But the proposal clearly
covers employees within the bargaining unit, and while
its language might reach more widely, the Compliance
Board found that “[t]he Union has represented in this
proceeding that it only seeks to negotiate on behalf of its
bargaining unit.” J.A. 265. The Compliance Board acted
reasonably in taking the Union at its word and relying on
the Union to agree in negotiations to limit Proposal K’s
“scope to unit employees,” with any failure to do so open
to later challenge. Id.
Lastly, in response to the Police’s contention that
Proposal K interferes with the management right “to
assign work” off-site, 5 U.S.C. § 7106(a)(2)(B), the Com-
OOC v. US CAPITOL POLICE 11
pliance Board concluded that Proposal K comes within the
exclusion of “appropriate arrangements” for employees
adversely affected by the work assignments, § 7106(b)(3).
See J.A. 267–68. We see no reversible error in that con-
clusion. The Compliance Board applied the cost-benefit
framework from NAGE, 21 F.L.R.A. at 31–35. It found
that Proposal K’s benefits to employees outweigh any
limited interference with supervisors’ decision-making
because “[i]t would prevent employees working off-site
who do not have access to computers, or do not want to
use their personal computers, from contravening the
requirements of the draft Directive.” J.A. 268. The
Compliance Board also found that “consultations between
employees and supervisors are, or should be, routine
activities in the workplace.” Id. Ultimately, the Compli-
ance Board determined that Proposal K is an appropriate
arrangement that does not excessively interfere with the
Police’s statutory rights. We see no reason to disturb the
Compliance Board’s findings and determination.
With respect to Proposal K, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
granted.
2
In Proposal P, the Union proposed to add the follow-
ing language to the end of a directive subsection that
outlines responsibilities and procedures for employees:
5. The Department will provide sufficient time,
on a daily basis, for employees to complete their
time and attendance responsibilities on a daily
basis. While the exact amount of time to complete
these duties may vary depending on the circum-
stances, the Department recognizes that, general-
ly, fifteen (15) minutes is a sufficient amount of
time on a daily basis for an employee to complete
his or her time and attendance responsibilities.
12 OOC v. US CAPITOL POLICE
J.A. 401. The Compliance Board determined that the
Police must bargain over this proposal.
When the Police argued to the Compliance Board that
Proposal P interferes with its statutory management
right “to assign work” to supervisors and timekeepers, 5
U.S.C. § 7106(a)(2)(B), the Compliance Board rejected the
argument. It concluded that, “by its plain terms, Proposal
P neither requires nor prevents the assignment of work to
any employees” and, instead, “is a procedure management
officials would observe, under 5 U.S.C. § 7106(b)(2), in
exercising their authority to require employees to enter
their time and attendance data.” J.A. 270. The Police has
not shown reversible error. Under the Time and Attend-
ance directive, the Police would assign the work of elec-
tronic time entry to its employees. Proposal P would not
interfere with that assignment; rather, it would ensure
that employees have enough time to complete their as-
signed work and that they are compensated for that time.
We have been pointed to no authority undermining the
reasonableness of the Compliance Board’s determination
that the proposal comes within the § 7106(b)(2) “proce-
dure” exception to management rights.
According to the Police, Proposal P is outside its duty
to bargain for still other reasons—that the directive
provisions it responds to would make no more-than-de-
minimis changes in working conditions, and that the
proposal attempts to negotiate for non-bargaining-unit
employees. We reject those arguments, which have no
more merit for Proposal P than for Proposal K.
With respect to Proposal P, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
granted.
OOC v. US CAPITOL POLICE 13
3
In Proposal R, the Union proposed to add the follow-
ing language to the directive’s “Additional Information”
section:
2. Employees may request extensions of any time-
lines under this Directive. The Department will
grant such extensions unless doing so would cause
an undue burden on the Department. All re-
sponses to extension requests must be provided by
the Department to the employee in writing within
24 hours of the request. If the Department denies
the extension request, it shall set out, with speci-
ficity, the reason(s) for the denial. Any request for
an extension of time shall be deemed granted, if
the Department fails to respond to it within 24
hours. Denials of extension requests shall be
grievable pursuant to the applicable grievance
procedure.
J.A. 401. The Compliance Board concluded, favorably to
the Police, that the final sentence of Proposal R is covered
by the parties’ collective bargaining agreement and,
therefore, is outside the Police’s duty to bargain. But the
Compliance Board determined that the rest of Proposal R
(consisting of the first five sentences) is within the Police’s
duty to bargain.
The Police challenges the latter determination. But
the first five sentences of Proposal R no more stop man-
agement from assigning work to employees than does
Proposal P, and they are just as reasonably viewed as
proposing “procedures.” Similarly, the Compliance Board
reasonably found that those sentences of Proposal R
respond to more-than-de-minimis changes in working
conditions, as we have concluded with respect to Proposal
K. Likewise, as to the Police’s challenge regarding the
first five sentences of Proposal R as aimed at employees
14 OOC v. US CAPITOL POLICE
outside the bargaining unit, we find no more merit than
we find in the similar challenge to Proposal K.
With respect to Proposal R, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
granted.
4
In Proposal S, the Union proposed to add the follow-
ing language to the directive’s “Additional Information”
section:
3. If, for any reason, an employee is physically or
otherwise unable to use the computer programs
required under this Directive to complete his or
her time and attendance, the employee is encour-
aged to contact his or her first-line supervisor to
discuss reasonable accommodations available to
that employee. The Department will make every
effort to ensure that employees who are physically
or otherwise unable to use the computer programs
are accommodated.
J.A. 401. The Compliance Board determined that the
Police must bargain over this proposal.
The Police contends that Proposal S lies outside its
duty to bargain for two reasons already discussed regard-
ing Proposal K: that it does not respond to any more-than-
de-minimis changes in working conditions, and that it is
part of the Union’s attempt to negotiate for non-
bargaining-unit employees. These arguments have no
more merit for Proposal S than for Proposal K.
With respect to Proposal S, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
granted.
OOC v. US CAPITOL POLICE 15
5
In Proposal L, the Union proposed to add the follow-
ing language to the end of the directive’s subsection titled
“Supervisor Verification/Certification”:
e. Supervisors cannot refuse to verify or certify
that an FLSA non-exempt employee performed
work as long as the work was suffered or permit-
ted by the employer. Supervisors cannot refuse
to verify or certify that an FLSA non-exempt em-
ployee performed work on the basis that the work
was not pre-approved by the Department.
J.A. 400. The Compliance Board determined that the
Police must bargain over this proposal.
The Police contends that the proposal lacks a reason-
able relation to the Police’s changes stated in the Time
and Attendance Directive, as required for negotiability.
We agree with the Police that neither the Compliance
Board in its decision nor the Office of Compliance or the
Union in this court has identified how Proposal L reason-
ably relates to the Police’s changes.
The relevant portion of the directive is a subsection ti-
tled “Supervisor Verification/Certification” in the “Attes-
tation and Certification of T&A” section. Some language
in that subsection did not appear in the earlier interim
guidance. Compare J.A. 393–94, with J.A. 383–87. The
subsection focuses on ensuring that time entered into the
WorkBrain system is accurate. For example, the end of
the relevant subsection reads as follows:
6. A supervisor’s verification of employee T&A
data certifies the following:
a. All related documentation or data elements,
including approvals, accurately reflect work per-
formed and are maintained in computer files.
16 OOC v. US CAPITOL POLICE
b. Supporting documents or computerized files
have been reviewed by the supervisor prior to cer-
tifying T&A data.
c. The reported T&A data for the employee ac-
curately reflects the supporting documenta-
tion/computerized support files, including the use
of proper overtime codes.
d. The employee will be informed of the super-
visor’s and other officials’ changes to T&A.
J.A. 394.
The language of Proposal L would be a departure
from, not a same-subject coherent continuation of, this
list. Although the proposal is worded in terms of when a
supervisor should “verify or certify work,” the essence of
the proposal is ensuring the Police’s compliance with the
Fair Labor Standards Act, which is quite different from
the subject of the directive’s provisions. An agency “is not
required to bargain over [union] proposals that go beyond
the scope of a [management-]proposed change.” POPA, 66
F.L.R.A. at 253. Here, Proposal L is not reasonably
related to, and so goes beyond the scope of, the relevant
directive provisions. The Compliance Board set forth no
basis for a contrary conclusion, and neither the Office of
Compliance nor the Union has identified a record-
supported potential basis for such a conclusion to justify a
remand on the issue.
With respect to Proposal L, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
denied.
C
In June 2016, the Police provided the Union with a
copy of an Outside Employment directive. J.A. 808–14.
That directive addresses much of what appeared in a May
2012 standard operating procedure for outside employ-
OOC v. US CAPITOL POLICE 17
ment. J.A. 839–43. Despite a high degree of similarity,
there are some differences: the directive (1) includes four
new definitions, (2) requires employees to obtain addi-
tional approvals from supervisors, and (3) revises appen-
dices that list prohibited and permissible activities. Five
Union proposals relating to this directive are in dispute
before us. All five involve items in Appendix A, which
lists fourteen prohibited activities for sworn employees.
We first address Proposals D, E, G, and H, and then we
address Proposal F.
1
The Union made Proposal D to respond to what it ar-
gued was a change in conditions of employment in the
directive. Appendix A in the Police’s standard operating
procedure prohibited employees from engaging in outside
work when “2. The employee’s position as a police officer
might influence that taking of action which that member
might not otherwise take.” J.A. 842. The directive ver-
sion changes the language to the following: “2. When an
employee’s position as a police officer might influence
taking action which that member might not otherwise
take.” J.A. 812. The Union, asserting that the language
in the directive is vague, proposed that the Police provide
one non-exclusive example for clarification. J.A. 818. The
Compliance Board determined that Proposal D is subject
to the duty to bargain.
We agree with the Police that Proposal D is outside its
duty to bargain because the proposal does not relate to a
change in conditions of employment. It is not enough to
say, as the Compliance Board did, that the Police “did not
merely present the Union with revisions to the existing
[standard operating procedure], but with a new draft
directive.” J.A. 696. Use of a new format (“a new draft
directive”) does not imply substantive change, which is
what matters. Here, the relevant directive change is no
more than stylistic; it is not substantive in any respect.
18 OOC v. US CAPITOL POLICE
Accordingly, there has not been a change in working
conditions giving rise to a duty to bargain over Proposal
D.
With respect to Proposal D, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
denied. 2
2
The Union’s Proposal E is subject to an almost identi-
cal analysis. Appendix A in the Police’s standard operat-
ing procedure prohibited employees from working for “7.
An enterprise which is under contract to furnish goods or
services to the Department.” J.A. 842. The new directive
includes this prohibition verbatim. J.A. 812. In Proposal
E, the Union proposed to make this prohibition condition-
al:
7. An enterprise which is under contract to fur-
nish goods or services to the Department if the
paid employment would raise questions of favorit-
ism. Upon request, the Department shall provide
a list of enterprises which are under contract to
furnish goods or services to the Department.
J.A. A818 (emphasis omitted). The Compliance Board
concluded that this proposal is within the Police’s duty to
bargain.
We agree with the Police that Proposal E is outside of
its duty to bargain because the proposal does not relate to
a change in conditions of employment. Proposal E re-
sponds to a provision of the directive that is no different
at all, not even stylistically, from the language of its
2 For this proposal, as for others discussed infra, we
do not discuss certain challenges by the Police that are
immaterial in light of our rejection of the Compliance
Board’s conclusion for the reasons we set forth.
OOC v. US CAPITOL POLICE 19
predecessor in the standard operating procedure. There
being no relevant change in the directive, the Police
therefore had no duty to bargain over Proposal E.
With respect to Proposal E, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
denied.
3
The Union’s Proposal G is subject to a closely related
analysis. Appendix A in the Police’s standard operating
procedure prohibited “10. Employment requiring mainte-
nance of a place of abode, temporarily or otherwise, at any
facility (including a firehouse).” J.A. 842. The directive,
besides a stylistic change, adds certain language: “10.
Employment that requires maintaining a place of abode,
temporarily or otherwise, at any facility (including a
firehouse) other than at the sworn employee’s official
residence, unless specifically authorized by the Chief of
Police.” J.A. 812 (emphasis added). In Proposal G, the
Union, without proposing specific language, asked the
Police to clarify whether this restriction applies to volun-
teer firefighters. J.A. 819. The Compliance Board consid-
ered Proposal G together with Proposal D and ordered the
Police to bargain over Proposal G for the same reasons.
We agree with the Police that Proposal G is outside its
duty to bargain. The Compliance Board did not set forth,
and the Office of Compliance and the Union have not
established in this court, any basis for viewing the differ-
ences between the prohibition in the standard operating
procedure and the prohibition in the directive as more
than de minimis. The directive adds an exception to the
prohibition for “the sworn employee’s official residence.”
J.A. 812. But an exception for the employee’s place of
abode was surely implicit in the standard operating
procedure. Making explicit what was implicit is not a
more-than-de-minimis change. The directive also allows
the Chief of Police to approve living arrangements that
20 OOC v. US CAPITOL POLICE
would otherwise be prohibited. This change is also de
minimis: nothing in the Compliance Board’s decision, or
submissions by the Office of Compliance or the Union,
indicates that the Chief of Police could not authorize an
employee to deviate from the standard operating proce-
dure. In these circumstances, we agree with the Police
that it is not obligated to bargain over Proposal G.
With respect to Proposal G, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
denied.
4
We reach the same conclusion regarding the Union’s
Proposal H. Appendix A in the Police’s standard operat-
ing procedure prohibited “13. Employment or voluntary
work while on sick or administrative leave, Continuation
of Pay (COP), or on Restricted Duty for medical reasons
unless specifically authorized by the Chief of Police.” J.A.
842. The prohibition in the directive is nearly identical:
“13. Employment or voluntary service while on sick or
administrative leave, Continuation of Pay, or on Restrict-
ed Duty for medical reasons unless specifically authorized
by the Chief of Police.” J.A. 812. In Proposal H, the
Union proposed to delete the words “or administrative.”
J.A. 819. The Compliance Board determined that the
Police must bargain over this proposal.
We agree with the Police that Proposal H is outside
its duty to bargain because the proposal does not relate to
a change in conditions of employment. Proposal H re-
sponds to a directive provision that changes the earlier
language of the standard operating procedure only by
replacing “work” with “service” and removing the “COP”
abbreviation for “Continuation of Pay.” The Compliance
Board did not set forth, and the Office of Compliance and
the Union have not established in this court, any basis for
concluding that those changes are at all substantive, let
alone more than de minimis. Moreover, the only subject
OOC v. US CAPITOL POLICE 21
of the Union’s proposal is a phrase that has not changed
(“or administrative”). Accordingly, the Police need not
bargain over this proposal.
With respect to Proposal H, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
denied.
5
The Union’s Proposal F is the remaining disputed
proposal concerning the Outside Employment directive.
Appendix A in the Police’s standard operating procedure
prohibited “9. Employment in establishments where
alcoholic beverages are served for consumption on prem-
ises.” J.A. 842. The directive relaxes the prohibition to
read: “9. Employment in establishments where the prima-
ry business of the establishment is serving alcoholic
beverages.” J.A. 812. In Proposal F, the Union proposed
to add the following definition for “primary business”:
“For the purposes of this provision, ‘primary business’
means the business from which the establishment earns
the greatest percentage of its revenue.” J.A. 819. The
Compliance Board determined that the Police must
bargain over this proposal.
When the Police argued that Proposal F interferes
with its right to assign work, the Compliance Board
disagreed:
If the [Police] were to agree to adopt it, manage-
ment may have to take some action to enforce the
provision, such as determining whether an estab-
lishment earns the greatest percentage of its rev-
enue from the sale of alcohol, or to defend itself if
the Union files a grievance on behalf of an em-
ployee that management has disciplined for vio-
lating the provision. The [Police], however, would
have to do as much with respect to item 9 even if
Proposal F is not adopted.
22 OOC v. US CAPITOL POLICE
J.A. 697–98. We see no reversible error in the Compli-
ance Board’s rejection of the management-rights argu-
ment. The proposal involves work that other employers
might assign to Police employees, but it does not involve
work assigned by the Police; and the need for manage-
ment to devote staff time to rendering decisions about
application of a policy—a near-universal need—does not,
by itself, bring the policy within the § 7106(a)(2)(B) pro-
tection of management’s right to “assign work.” See Nat’l
Fed’n of Fed. Emps., 35 F.L.R.A. at 368. The scope and
precision of an exclusion of establishments serving alcohol
may be important issues, but Proposal F does not inter-
fere with the Police’s statutory rights.
The Police also argues that Proposal F is part of the
Union’s attempt to negotiate for non-bargaining-unit
employees. We see no more merit to this argument for
Proposal F than we do for Proposal K.
With respect to Proposal F, the Office of Compliance’s
petition to enforce the Compliance Board’s decision is
granted.
D
In the Absence and Leave directive, one Union pro-
posal is before us: Proposal I. The directive states that
the “Capitol Police Board Regulations Prescribing a
Unified Leave System for Employees of the United States
Capitol Police” “should be referenced in conjunction with
this Policy Directive.” J.A. 179. In Proposal I, the Union
proposed to make those regulations available for employ-
ee review on the Police’s intranet. J.A. 186. The Compli-
ance Board determined that the Police must bargain over
this proposal.
In this court, the Police argues that Proposal I is out-
side the duty to bargain because its subject, including the
directive to which it responds, are covered by the parties’
collective bargaining agreement. But the Police forfeited
OOC v. US CAPITOL POLICE 23
this argument. It did not raise the “covered by” doctrine
for Proposal I before the Compliance Board. See J.A. 202–
03 (the Police’s position statement failing to mention the
“covered by” doctrine under the section titled “Proposal
I”).
The Police did argue to the Compliance Board that
Proposal I is outside the duty to bargain because the
directive language at issue (quoted above) makes no
change in conditions of employment. The Union respond-
ed that “employees for the first time are expressly respon-
sible for following” a set of regulations. J.A. 13. The
Compliance Board, in finding this proposal subject to the
duty to bargain, did not make any factual findings about
whether the directive actually made employees newly
responsible for following the regulations. At oral argu-
ment in this court, counsel disputed whether inserting a
cross-reference to the regulations in the directive consti-
tutes a significant change for employees. Compare Oral
Arg. at 1:38:00–1:38:07 (Counsel for the Police: “Employ-
ees aren’t subject to the [Capitol Police] Board’s regula-
tions; they’re subject to the Department’s policy.”), with
id. at 1:44:07–1:44:16 (Counsel for the Office of Compli-
ance: “I don’t have access to the regulations. I don’t know
what they say. The regulations are not published regular-
ly.”); see also id. at 1:27:45–1:27:50 (Counsel for the
Police: “A directive and a standard operating procedure
both apply equally to employees.”). Without the regula-
tions in the record, we are unable to say whether the
directive involves a change in the employees’ conditions of
employment.
With respect to Proposal I, we set aside the Compli-
ance Board’s order and remand for further proceedings on
this issue.
III
We have considered the parties’ remaining argu-
ments, but we find them unpersuasive. The Office of
24 OOC v. US CAPITOL POLICE
Compliance’s petition for enforcement is granted with
respect to Proposals F, K, P, R, and S. The petition for
enforcement is denied with respect to Proposals D, E, G,
H, L, and 8. The Compliance Board’s order with respect
to Proposal I is set aside, and we remand for the Compli-
ance Board to determine whether Proposal I involves a
change in conditions of employment.
No costs.
GRANTED IN PART, DENIED IN PART, SET ASIDE
IN PART, AND REMANDED