United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 27, 2006 Decided June 27, 2006
No. 05-1266
NATIONAL TREASURY EMPLOYEES UNION,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
UNITED STATES CUSTOMS AND BORDER PROTECTION,
INTERVENOR
On Petition for Review of an Order of the
Federal Labor Relations Authority
Robert H. Shriver, III argued the cause for the petitioner.
Gregory O'Duden, Elaine D. Kaplan and Larry J. Adkins were
on brief.
James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for the respondent. William R.
Tobey, Deputy Solicitor, Federal Labor Relations Authority, was
on brief.
William G. Kanter, Deputy Director, United State
Department of Justice, argued the cause for the intervenor.
Peter D. Keisler, Assistant Attorney General, and Howard S.
Scher, Attorney, United States Department of Justice, were on
2
brief. Sandra W. Simon, Attorney, United States Department of
Justice, entered an appearance.
Before: SENTELLE, HENDERSON and RANDOLPH, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The National
Treasury Employees Union (NTEU) seeks review of a decision
of the Federal Labor Relations Authority (FLRA or Authority)
upholding an arbitration award in favor of the United States
Bureau of Customs and Border Protection (Customs).1 NTEU
Chapter 143, 60 F.L.R.A. No. 167 (May 16, 2005) (FLRA
Dec.). Before October 2001 Customs was bound under the
terms of its 1995 National Inspectional Assignment Policy
(NIAP) and a National Labor Agreement (NLA) to bargain with
NTEU Chapter 143 (Chapter 143) over changes in rotation and
regular days off (RDOs) for its El Paso, Texas passenger
customs inspectors. In its decision the FLRA concluded that
Customs effectively revoked its consent to bargain over rotation
and RDOs in 2001 when it implemented its revised NIAP
(RNIAP), which by its terms superseded both the 1995 NIAP
and the NLA, which had expired in 1999. Because the FLRA’s
decision is not arbitrary, capricious or otherwise contrary to law,
we deny the NTEU’s petition for review.
1
The United States Customs Service was a part of the United
States Department of the Treasury until the Homeland Security Act of
2002 transferred it to the United States Department of Homeland
Security where it was renamed the Bureau of Customs and Border
Protection. See Pub. L. No. 107-296, § 1502, 116 Stat. 2135, 2308
(2002); see also 6 U.S.C. § 203(a)(1). For convenience, the opinion
refers to the agency in either incarnation as “Customs.”
3
I.
This case involves a continuing dispute between the NTEU
and Customs over the extent of Customs’ obligation to bargain
over changes wrought pursuant to the RNIAP. Although the
Federal Service Labor-Management Relations Statute (Statute),
5 U.S.C. §§ 7101 et seq., “generally obligates an agency to
negotiate with its employees’ bargaining representative over
‘conditions of employment,’ id. § 7103(a)(12)—i.e., ‘personnel
policies, practices, and matters . . . affecting working
conditions,’ id. § 7103(a)(14),” section 7106 of the Statute
“ ‘reserv[es] to management officials the authority to, inter alia,
make budget, organization, and work assignments.’ ” NTEU v.
FLRA, 414 F.3d 50, 52-53 (D.C. Cir. 2005) (quoting FLRA v.
U.S. Dep’t of Justice, 994 F.2d 868, 871-72 (D.C. Cir. 1993))
(alteration in original). Section 7106(b)(1) identifies permissive
subjects of bargaining involving such management rights over
which bargaining may take place “at the election of the agency,”
namely, “on the numbers, types, and grades of employees or
positions assigned to any organizational subdivision, work
project, or tour of duty, or on the technology, methods, and
means of performing work.” 5 U.S.C. § 7106(b)(1); see Nat’l
Ass’n of Gov’t Employees, Local R5-136 v. FLRA, 363 F.3d 468,
471 (D.C. Cir. 2004) (quoting Am. Fed’n of Gov’t Employees,
Local 2441 v. FLRA, 864 F.2d 178, 180 (D.C. Cir. 1988)) (Local
R5-136 ). “ ‘As to these decisions, the agency is permitted but
not required to negotiate with the labor organization.’ ” Local
R5-136, 363 F.3d at 471. “These rights of unilateral action,”
however, “are not unqualified. . . . ‘[A]lthough an agency is not
required to bargain with respect to its management rights per se,
it is required to negotiate about the impact and implementation
of those rights.’ ” NTEU v. FLRA, 414 F.3d at 53 (quoting
Dep’t of the Navy v. FLRA, 962 F.2d 48, 50 (D.C. Cir. 1992))
(alterations added). Further, as the FLRA has interpreted the
Statute, the mandatory bargaining obligation over impact and
implementation attaches only at “the level of exclusive
4
recognition,” which in the case of bargaining between Customs
and the NTEU is at the national level, so that bargaining over
impact and implementation below that level is permissive. See
NTEU Chapter 137, 60 F.L.R.A. 483, 486 (2004) (citing U.S.
Food & Drug Admin., 53 F.L.R.A. 1269, 1274 (1998); Dep’t of
Defense Dependents Sch., 12 F.L.R.A. 52, 53 (1983)).
In 1993 the President issued Executive Order 12871
directing that all federal agencies “negotiate over the subjects set
forth in 5 U.S.C. 7106(b)(1),” 58 Fed. Reg. 52,201, 52,203
§ 2(d) (Oct. 1, 1993), that is, the permissive subjects of
bargaining explicitly set out there. In accordance with the
executive order, the 1995 NIAP required that such subjects as
workweek length, work hours, scheduling, staffing levels and
days off be negotiated and determined at the local level. See
NIAP § 5(A), JA 158-62. Accordingly, Customs agreed in the
NLA to bargain locally over various permissive subjects of
bargaining, including, specifically, work station rotation. NLA
Article 20, section 15.B specifically provided that Customs “will
give timely notice and the opportunity to bargain . . . when a
change is to be made in an established rotation system which has
an impact, or one which is [sic] reasonably foreseeable, on
conditions of employment,” JA 235, and Article 37, section 6.B
stipulated that “[p]roposed changes which apply within one (1)
organizational office”—such as the El Paso rotation
system—“will be negotiated within that office,” that is, at the
local level, JA 243. Thus, under the NLA, recurring rotation
regimes that applied only locally were required to be negotiated
locally. The NLA expired in 1999.
On February 17, 2001 Executive Order 12871 was revoked
by Executive Order 13203, 66 Fed. Reg. 11,227 (Feb. 17, 2001),
which directed that all executive agencies “promptly move to
rescind any orders, rules, regulations, guidelines, or policies
5
implementing or enforcing Executive Order 12871.”2 On
August 2, 2001 Customs sent the NTEU a copy of the RNIAP
along with a cover letter announcing that Customs had decided
“to exercise its statutory right to terminate and no longer be
bound by the provisions in the national agreement in which we
agreed to bargain over matters covered by 5 USC 7106 (b)(1).”
JA 141. Section 4 of the RNIAP expressly provides that it
“supersedes and replaces [the 1995 NIAP] as well as all local
agreements that address matters contained within [the RNIAP].”
JA 144. Section 3 more broadly states that the RNIAP’s
“policies and procedures . . . take precedence over any and all
other agreements, policies, or other documents or practices
executed or applied by the parties previously, at either the
national or local levels, concerning the matters covered within
this Handbook.” JA 144 (emphasis added). Section 3 also
states that “[n]o further obligation to consult, confer, or
negotiate, either upon the substance or impact and
implementation of any decision or action, shall arise upon the
exercise of any provision, procedure, right or responsibility
addressed or contained within this Handbook.” Id. Section 5
then directs that “agency managers,” in accordance with
“workload,” “operational needs” and/or “budgetary limitations,”
are to make decisions regarding such “Scheduling” and
“Staffing Levels” matters as “Length of Workweek,” “Work
Hours,” “Days Off,” “Scheduling,” “Staffing Levels,” “Staffing
Flexibility” and “Shift Swaps.” JA 145-46. Customs’ cover
letter states the RNIAP is to take effect on September 30, 2001.
On October 3, 2001 the El Paso Port Director notified
Chapter 143 of a change in personnel rotation and RDOs. Up to
that time, each Customs passenger inspector in El Paso was
2
The order expressly stated: “Nothing in this order shall abrogate
any collective bargaining agreements in effect on the date of this
order.” 66 Fed. Reg. at 11,227.
6
rotated among three bridges there—serving for two weeks at
each bridge, then starting the sequence over—and received a
four-day weekend every three weeks. Under the new policy,
each passenger inspector was to be assigned to a single bridge
for a one-year term and to receive a four-day weekend only
every five to six weeks. On October 4, 2001 the NTEU filed a
request to bargain over the change pursuant to the NLA, which
Customs denied. On October 7, 2001 Customs implemented the
RNIAP.3 The NTEU filed a grievance alleging an unfair labor
practice in violation of 5 U.S.C. § 7116(a)(1) and (5). When
Customs failed to respond, the NTEU invoked arbitration.
The arbitrator issued an award in favor of Customs, rejecting
the NTEU’s contentions that the RNIAP violates Articles 20 and
37 of the NLA because, the arbitrator concluded, these
provisions were “trumped” by the FLRA’s decision in United
States Department of the Treasury Customs Service, 59 F.L.R.A.
703 (2004), review denied, NTEU v. FLRA, 414 F.3d 50, 57
(D.C. Cir. 2005), in which the FLRA upheld Customs’
implementation of the RNIAP. The arbitrator further found that
the RNIAP, unlike its predecessor NIAP, “ ‘did not contain
provisions authorizing local bargaining’ ” and observed that “he
was ‘bound to the [Authority’s] conclusions’ as well as case law
holding that the obligation to bargain attaches at the level of
exclusive recognition.” FLRA Dec. at 5 (quoting arbitration
award at 15, 16). Accordingly, the arbitrator concluded that
“ ‘[w]ithout an obligation to bargain at the local level . . . there
can be no violation of the Statute . . . for a failure or refusal to
bargain.’ ” Id. (quoting arbitration award at 16).
The NTEU excepted to the arbitral award and the FLRA
denied its exceptions in a decision issued May 16, 2005. In
3
In implementing the new local bridge rotation scheme and the
RNIAP, Customs apparently intended no change to its existing “bid
and rotation process” for particular job positions. See infra note 5.
7
upholding the award, the Authority relied principally on its
decisions in Customs Service and in NTEU Chapter 137, 60
F.L.R.A. 483 (2004), recons. denied, 61 F.L.R.A. 60 (2005). In
Chapter 137, the Authority determined that Customs had no
obligation to bargain at the local level over a change in local
Sunday overtime assignments because RNIAP “section 3
terminated locally negotiated agreements concerning
inspectional assignment matters, as well as the Agency’s
obligation to bargain at the local level regarding such matters.”
60 F.L.R.A. at 487.eu v.
Nonetheless, the Authority further concluded in Chapter 137
that the fact that section 3 “unilaterally, but lawfully,
implemented RNIAP did not extinguish Customs’ statutory
bargaining obligations at the national level (that is, at the level
of exclusive recognition) to bargain over all mandatory subjects
of bargaining concerning overtime inspectional assignments.”
60 F.L.R.A. at 488. The Authority applied the same reasoning
here to local bargaining over bridge assignment rotation and
RDOs:
Section 3 of the RNIAP by its terms effectively
terminated any previously existing agreement that
required the Agency to bargain at the local level over the
impact and implementation of decisions concerning the
assignment of inspectors. “[S]ection 3 established the
RNIAP as the governing policies and procedures with
respect to inspectional assignment matters,” including,
as provided in Article 5 of the RNIAP, the length of the
work week, tours of duty, and days off. NTEU Chapter
137, 60 F.L.R.A. at 487. Therefore, for reasons
previously expressed in NTEU, Chapter 137, the Agency
did not have any obligation to bargain at the local level
over the impact and implementation of the changes
concerning bridge assignments and RDOs.
8
FLRA Dec. at 15-16. The NTEU filed a timely petition for
review of the FLRA’s decision.4
II.
“[W]hen acting ‘within its authority’ and ‘consistent with the
congressional mandate,’ the Authority’s decision may only be
set aside if it is found to be ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’ ” NTEU v.
FLRA, 414 F.3d at 57 (quoting Ass’n of Civilian Technicians v.
FLRA, 250 F.3d 778, 782 (D.C. Cir. 2001) (quoting 5 U.S.C. §
706(2)(A); Bureau of Alcohol, Tobacco & Firearms v. FLRA,
464 U.S. 89, 97 & n.7, 98 n.8 1983))) (alteration in NTEU).
Applying this deferential standard, we uphold the Authority’s
decision. The NTEU acknowledges that the requirement in
NLA Article 37, section 6.B that Customs bargain locally over
changes in rotation and RDOs “concerns a permissive subject of
bargaining” and “[t]herefore, it became subject to revocation by
either party upon the expiration of the national agreement in
1999.” Opening Br. 16 (citing Fed. Aviation Admin., 14
F.L.R.A. 644 (1984)). The only issue therefore is whether the
FLRA reasonably determined that the RNIAP effectively
revoked section 6.B. We conclude the Authority’s determination
was reasonable given the expansive language of RNIAP section
3 preempting all previous agreements and disclaiming all further
bargaining obligations on the matters covered in the RNIAP.
4
The NTEU also filed petitions for review of Chapter 137 and of
United States Customs and Border Patrol Port of Seattle/NTEU
Chapter 139, 60 F.L.R.A. No. 97 (Dec. 17, 2004), recons. denied, 61
F.L.R.A. No. 16 (July 8, 2005), in which the Authority rejected unfair
labor practice charges based on Customs’ unilateral change of local
overtime policies. See NTEU v. FLRA, No. 05-1338 (pet. filed Aug.
24, 2005); NTEU v. FLRA, No. 05-1352 (pet. filed Sept. 2, 2005).
Those petitions have been held in abeyance pending the decision here.
9
Nonetheless, the NTEU raises two arguments against
revocation. We address, and reject, each one in turn.
First, the NTEU argues that the FLRA failed to follow its
precedent requiring that an agency give explicit notice of intent
to terminate a bargaining provision. See U.S. Dep’t of Justice,
55 F.L.R.A. 201, 205 (1999) (“Authority precedent suggests that
to be effective, a party must give notice that explicitly contains
a statement of intent to terminate a provision dealing with a
permissive bargaining subject.”). The NTEU contends the
RNIAP falls short of this requirement because it does not
specifically identify article 37, section 6.B as being revoked or
disclaim a bargaining obligation on the local level. As to the
former, we find no requirement in FLRA precedent that the
employing agency cite the specific provision revoked. Quite the
contrary, in Federal Aviation Administration, 23 F.L.R.A. 209
(1986), the Authority concluded that the union effectively
revoked a waiver of its right to negotiate, set out in an expired
agreement, when its president informed the Federal Aviation
Administration that “ ‘any prior bargaining authority given to
any [union] representative other than [himself was] . . . revoked
with respect to the national unit,’ ” 23 F.L.R.A. at 210
(emphasis and first alteration added). Similarly, in this case, the
Authority’s finding of valid revocation relies on the express
language of RNIAP section 3, which declares that the RNIAP is
to “take precedence over any and all other agreements, policies,
or other documents or practices executed or applied by the
parties previously . . . concerning the matters covered” and that
Customs is to be subject to “[n]o further obligation to consult,
confer, or negotiate.” JA 144 (emphasis added). Relying on
Chapter 137’s construction of this broad language, the FLRA
reasonably found that “Section 3 of the RNIAP by its terms
effectively terminated any previously existing agreement that
required the Agency to bargain at the local level over the impact
and implementation of decisions concerning the assignment of
inspectors,” FLRA Dec. at 15, notwithstanding Chapter 137 also
10
concluded Customs could not lawfully refuse to bargain at the
national level (“the level of exclusive recognition”) over the
impact and implementation of such decisions. In fact, NTEU
acknowledges that “the purpose of [the second paragraph of
section 3] is to foreclose all bargaining over any future
management actions take pursuant to RNIAP” so that Customs
“would have no duty to bargain—whether at the local or the
national level—over the impact and implementation of
management actions taken pursuant to RNIAP.” Opening Br.
19-20. It argues, however, that the FLRA’s subsequent
determination in Chapter 137 that Customs cannot avoid its
statutory obligation to bargain over impact and implementation
at the national level somehow voided its intent, conveyed to
NTEU through section 3 of the RNIAP, not to bargain at the
local level. The Authority reasonably concluded otherwise in
both Chapter 137 and its decision here.
The NTEU’s fallback position is that, even if section 3 gave
effective notice of Customs’ intent to revoke its agreement to
bargain over matters “covered,” “addressed” or “contained” in
the RNIAP, JA 144, because the term “rotation” is not
specifically mentioned therein, the obligation to negotiate
locally over rotation survives. We reject this argument as well.
The NLA defines “rotation” as “[t]he recurring assignment of
employees to different work locations, assigned work, shifts,
and/or tours of duty within the confines of the employees’ post
of duty and/or other locations to which the employees are
regularly assigned.” JA 226. Under this definition, the bridge
rotation at issue, including RDOs, is reasonably encompassed
within the subject matter that RNIAP section 5 expressly
declares is to be determined by “agency managers” in
accordance with “workload,” “operational needs” and/or
“budgetary limitations,” namely, the “length of the workweek
and tours of duty,” “work hours in each day of the basic
workweek,” “days off,” “scheduling the numbers, types and
grades of employees . . . for any particular tour, shift, location,
11
special team or task,” “the number of inspectional personnel
assigned to any inspectional activity . . . on a regular workday or
holiday” and “assign[ing] employees from one facility to
another.” JA 145-46. Nor does any of the arbitration hearing
evidence cited by NTEU, which is at best ambiguous in its
references to rotation, plainly contradict the FLRA’s
determination that Customs effectively revoked its agreement to
negotiate rotation on the local level.5
Because the FLRA reasonably determined that Customs,
through the RNIAP, effectively revoked its agreement in the
5
The NTEU points to testimony of Customs official Dennis
Reischl and an annotated version of the RNIAP, with accompanying
“Frequently Asked Questions,” which appear to refer to a pre-existing
annual or semiannual “bid and rotation process” by which employees
“bid to various positions—cargo, passenger processing, whatever,” for
which “a seniority system [had] been applied in the past against . . .
preferences and bids,” JA 118-19, and not to the regular rotation of
employees in one position—here, passenger inspector—from one
location to another. See JA 116 (Reischl testimony that RNIAP “did
not control or affect the annual bid and rotation systems that were set
up across country”); JA 120 (“NIAP FAQS” # 7 stating RNIAP
“affects your current bid and rotation system only to the extent that the
number, types or grades of employees who will be required to bid into
a particular assignment may change” but “[o]therwise it does not
address current systems”); JA 133 (“Relative to local bid systems, the
assignment procedures remain in effect until such time as they may be
changed through national negotiations. . . . How the bid process is
administered (e.g. seniority, duration, etc.) is the portion that remains
unchanged at this time and will be addressed nationally at a later point
in time.”). In any event, whatever the cited evidence might suggest
regarding Customs’ intent, it does not lessen the notice effect of the
RNIAP itself on the NTEU which was not privy to the annotated
RNIAP or to Reishchl’s opinion.
12
NLA to bargain over rotation and RDOs at the local level, the
petition for review is denied.
So ordered.