Amer Fed Govt Natl v. FLRA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 2006 Decided May 5, 2006
Reissued June 21, 2006

No. 05-1268

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
NATIONAL BORDER PATROL COUNCIL, AFL-CIO,
PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT

On Petition for Review of an Order of the
Federal Labor Relations Authority

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
 2

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,
 3

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
 4

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
 5

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 but because it has no appreciable effect upon
working conditions.” Id. at 962. Accordingly, any policy
change having an appreciable effect on working conditions
cannot find shelter in the de minimis exception. Appreciable
effects may surface not only through actual past effects but also
through likely future effects. The FLRA recognizes these two
avenues of inquiry in its de minimis exception formula: “In
assessing whether the effect of a decision on conditions of
employment is more than de minimis, the Authority looks to the
nature and extent of either the effect, or the reasonably
 6

foreseeable effect, of the change on bargaining unit employees’
conditions of employment.” United States Dep’t of the
Treasury, IRS, 56 FLRA 906, 913 (2000) (citation omitted).
Following this methodology, the Authority found that the
firearms policy change had a de minimis effect on working
conditions.

The Authority noted “conflicting” testimony regarding
whether the INS first, and the Bureau later, ever offered more
than eight hours of remedial firearms training to any BTO under
either the original or revised policy. The Authority suggested,
however, that since 1996 the agency may have in practice used
the same training policy that it adopted officially in 2002.
Placing great weight on these years of practice, the Authority
reasoned that any adverse effects from the eight-hour cap on
remedial training should have manifested themselves during that
span. The Authority found no actual adverse effects during the
period after 1996 and therefore concluded that the official policy
change in 2002 entailed no reasonably foreseeable effects either.

But the Union contends that the policy change has caused
actual adverse effects. According to unrefuted testimony, the
Bureau terminated at least one BTO for firearms deficiency
without offering the eighty remedial hours. The witness further
testified that some nonbargaining-unit employees, subject to the
same firearms policy, had also been terminated without
receiving more than eight hours of remedial training.

Without discrediting the witness’s testimony, the FLRA
gave it short shrift. Diminishing the importance of the
testimony regarding the BTO’s termination, the Authority found
that the General Counsel failed to prove that firearms deficiency
was the sole cause of the BTO’s termination. The Authority
placed even less weight on the nonbargaining-unit evidence,
issuing a blanket exclusion: “Evidence of any impact on non-
 7

bargaining unit employees does not serve to establish an impact
on bargaining unit employees.” The Authority mishandled both
pieces of testimony.

Despite accepting the fact that the Bureau likely fired at
least one firearms-deficient BTO without providing eighty
remedial training hours, the Authority appeared to require a
showing that the policy change constituted the sole cause for the
termination. Such an evidentiary requirement would
fundamentally change the nature of the de minimis exception,
which heretofore relieved the employer of any duty to bargain
over “trivia.” AALJ, 397 F.3d at 959. But the specter of
termination is no trivial matter. It is nonsensical to say that a
termination, if due even in part to the policy change, does not
constitute an “appreciable effect upon working conditions.”

The Authority’s error runs deeper, however. Even if the
Bureau terminated the BTO for other reasons, the evidence
demonstrates the existence of reasonably foreseeable effects.
The Authority accepted that at least one BTO—and perhaps
some nonbargaining-unit employees—became eligible for
termination despite not receiving more than eight remedial hours
of firearms training. The fact that one employee became
termination-eligible due to firearms deficiency makes the
likelihood of a future termination much greater. The Bureau’s
policy change drastically reduced every employee’s ability to
remedy a firearms deficiency, thus increasing the likelihood that
a deficient BTO will actually be terminated by the Bureau. This
increased likelihood of termination, confirmed by a past
occurrence, constitutes a reasonably foreseeable effect on
working conditions. Accordingly, a greater-than-de-minimis
effect exists when an employee has become eligible for
termination due to a policy change.
 8

The FLRA also erred in its treatment of the testimony
regarding the nonbargaining-unit employees. Although we
generally do not presume to tell the Authority which evidence
it should or should not find persuasive, see 5 U.S.C. § 7123(c)
(setting out “substantial evidence” standard), the complete
exclusion of this evidence is baffling. The nonbargaining-unit
employees worked for the same employer, followed the same
firearms policy, and faced the same penalties for firearms
deficiency. The policy change therefore would have struck a
similar chord in both groups. The Authority already faced
evidence that the Bureau terminated at least one BTO who failed
to meet firearms standards. The terminations of similarly
situated, nonbargaining-unit employees provide additional
evidence of concrete effects and confirm the likelihood of future
adverse effects to the bargaining unit. Again, having neither
discredited the testimony nor given reasons for finding it
unpersuasive, the Authority should not have discarded such
evidence.

More than one alarm bell should have alerted the Authority
to the fact that this policy revision had an appreciable effect on
working conditions. When a policy change increases the
likelihood of an employee’s termination, it almost certainly rises
above the level of trivia. In addition, the sheer magnitude of the
policy change should have given the Authority pause. Because
the Bureau trains BTOs initially for only eight hours, eighty
remedial hours would have given laggards ten times that in
additional training to cure the deficiency. Without consulting
the Union, the Bureau unilaterally reduced that number by
ninety percent, from eighty to eight. A change on that order
alone—where the penalty may be termination—pushes the
bounds of the de minimis exception.

In AALJ, we approved the FLRA’s use of the de minimis
exception for a nearly seventy-percent reduction in reserved
 9

parking spaces. 397 F.3d at 960. But unreserved parking was
plentiful and freely available, and improper parking would not
lead to dismissal. Id. at 964. The same cannot be said in this
case. Here, the Bureau did not replace the eighty remedial hours
with an equivalent, and firearms deficiency would result in
termination. This massive change had a reasonably foreseeable,
greater-than-de-minimis effect on working conditions. Because
we find that the reduction in remedial training hours had an
appreciable effect on working conditions, we conclude that the
FLRA unreasonably applied the de minimis exception. In
addition, because the Authority erroneously relied on the de
minimis exception in determining that there was no violation of
the MOU, we set aside its resolution of the Union’s MOU claim.

III.

For these reasons, we grant the petition for review. We
remand to the Authority for further proceedings not inconsistent
with this opinion.