PETITIONS FOR REVIEW OF A DECISION OF THE BOARD OF DIRECTORS
OF THE OFFICE OF COMPLIANCE IN NO. 15-LMR-02 (CA).
MARISSA SCINDIAN, OFFICE OF EMPLOYMENT COUNSEL, UNITED STATES
CAPITOL POLICE, WASHINGTON, DC, ARGUED FOR PETITIONER. ALSO
REPRESENTED BY FREDERICK M. HERRERA.
D. UELMEN, OFFICE OF THE GENERAL COUNSEL, UNITED STATES
OFFICE OF COMPLIANCE, WASHINGTON, DC, ARGUED FOR
CROSS-APPLICANT. ALSO REPRESENTED BY JULIA AKINS CLARK;
SIMONE N. JENKINS, CONGRESSIONAL OFFICE OF COMPLIANCE,
WILLIAM RICKSECKER, WOODLEY & MCGILLIVARY LLP,
WASHINGTON, DC, ARGUED FOR INTERVENOR.
NEWMAN, LOURIE, AND CLEVENGER, CIRCUIT JUDGES.
CLEVENGER, CIRCUIT JUDGE.
September 25, 2017, the Board of Directors of the
Congressional Accountability Office of Compliance
("Board") issued a decision stating that the United
States Capitol Police ("Police") committed an
unfair labor practice when it refused to comply with a
decision of an arbitrator made pursuant to a collective
bargaining agreement to which the Police is a party. U.S.
Capitol Police and Fraternal Order of Police, D.C. Lodge No.
1 U.S. Capitol Police Labor Comm., No. 15-LMR-02, 2017
WL 4335143 (C.A.O.C. Sept. 25, 2017).
Congressional Accountability Act of 1995 ("Act"),
among other things, affords congressional employees the right
to join together in bargaining units, bargain with their
employer over conditions of employment, enter collective
bargaining agreements, and resolve disputes through grievance
and arbitration procedures specified in those collective
bargaining agreements. 2 U.S.C. §§ 1301-
1438. The Act achieves those goals by
incorporation of many provisions found in chapter 71 of Title
5 of the U.S. Code relating to federal service
labor-management relations. See, e.g., id.
§ 1351 (incorporating provisions in chapter 71 of Title
5). The Act created the Office of Compliance
("OOC"), which is overseen by its Board.
Id. § 1381. For labor-management relations
arising under the Act, the Board exercises the authorities of
the Federal Labor Relations Authority under specified
sections of chapter 71. Id. § 1351(c)(1). The
Board is authorized to issue regulations to carry out the
Act, and to submit a matter presented to it to a hearing
officer, subject to review by the Board. Id.
§§ 1351(c)(1), 1351(d)-(e), 1384.
Fraternal Order of Police, District of Columbia Lodge No. 1,
U.S. Capitol Police Labor Committee ("Union")
entered into a Collective Bargaining Agreement
("CBA") with the Police, effective June 8, 2010.
The CBA provides that employee termination (defined as
"removal") is a disciplinary action subject to the
grievance and arbitration provisions of the CBA. J.A. 691,
697-98, 701-02. Section 32.14 of the CBA provides that when
the grievance and arbitration processes are invoked,
"[t]he decision of the arbitrator is final and
binding." J.A. 702. The refusal by an agency to comply
with a final arbitration award constitutes an unfair labor
practice under the Act. 2 U.S.C. § 1351(a)(1)
(incorporating 5 U.S.C. § 7116(a)(1), (8) into the Act).
Police is headed by the Chief of Police, who is appointed by
and serves at the pleasure of the Capitol Police Board, which
was created in 1867, and is composed of the Architect of the
Capitol as well as the Sergeants at Arms of the U.S. House of
Representatives and the U.S. Senate. Id.
§§ 1901, 1961(a), 1969(a). The Capitol Police Board
oversees the Police and supports its mission. H.R.J. Res. 2,
108th Cong. § 1014 (2003). The Chief of Police, an ex
officio member of the Capitol Police Board, "is
authorized to appoint, hire, suspend with or without pay,
discipline, discharge, and set the terms, conditions, and
privileges of employment of employees of the Capitol Police,
subject to and in accordance with applicable laws and
regulations." 2 U.S.C. § 1907(e)(1)(A). The United
States Capitol Police Administrative Technical Corrections
Act of 2009 ("TCA"), Pub. L. No. 111-145, 124 Stat.
49 (2010), amended a previous law providing for approval of
Chief of Police termination decisions by the Committee on
House Administration of the House of Representatives and the
Committee on Rules and Administration of the Senate to
instead place that approval authority in the Capitol Police
Board. Compare 2 U.S.C. § 1907(e)(1)(B)(i)
(2006), with id. § 1907(e)(1)(B) (2012). With
regard to the role of the Capitol Police Board in an employee
termination, the TCA reads:
The Chief may terminate an officer, member, or employee only
after the Chief has provided notice of the termination to the
Capitol Police Board (in such manner as the Board may from
time to time require) and the Board has approved the
termination, except that if the Board has not disapproved the
termination prior to the expiration of the 30-day period
which begins on the date the Board receives the notice, the
Board shall be deemed to have approved the termination.
2 U.S.C. § 1907(e)(1)(B) (2012).
the Act, the duty to bargain in good faith over conditions of
employment extends to such conditions "to the extent not
inconsistent with any Federal law or any Government-wide rule
or regulation . . . ." 5 U.S.C. §§ 7102,
7117(a)(1); see also 2 U.S.C. § 1351(a)(1)
(incorporating those provisions of chapter 71 of Title 5 into
the Act). In addition, matters "specifically provided
for by Federal statute" are not "conditions of
employment" subject to collective bargaining, and
therefore fall outside the duty to bargain. 5 U.S.C. §
7103(a)(14)(C), effective under the Act pursuant to Office of
Compliance Fina Regulations § 2421.3(m)(3) ("OOC
Regs."); see also 142 Cong. Rec. H10237, at
H10370-71 (daily ed. Sept. 12, 1996) (noticing the OOC's
issuance of final regulations).
case, the Police on June 28, 2013, terminated one of its
officers for misconduct, and the termination was specifically
approved by the Capitol Police Board. The terminated officer
invoked his rights under the CBA, seeking to arbitrate the
question of whether his termination was proper. The
arbitrator on May 13, 2014, held that for the misconduct
shown, termination was excessive, and instead a 30-day
suspension was proper. The arbitrator directed the Police to
reinstate the officer, without setting a deadline for
reinstatement, and awarded the officer back pay and benefits.
The Police filed exceptions to the arbitration award with the
Board, which in due course the Board denied on December 12,
2014. After back and forth communications among the Union,
the Police, and the arbitrator over whether the Police would
comply with the arbitrator's decision, the arbitrator on
February 18, 2015, gave the Police a 30-day deadline for
compliance. Just a few days before the deadline, the Police
told the Union for the first time that it absolutely refused
to comply with the direction of the arbitrator to reinstate
the officer and provide the Union with information it
Union filed charges with the OOC alleging that the refusal by
the Police to comply with the arbitrator's decision
constituted an unfair labor practice, and the General Counsel
of the OOC filed an unfair labor practice complaint with the
Board. The hearing officer assigned to the complaint
sustained the charge, and on review the Board agreed with the
the Board, the Police argued on the merits that the
arbitrator lacked jurisdiction over the subject of employee
termination. Without jurisdiction, the arbitrator's award
would be of no effect, and consequently refusal to comply
with the arbitrator's decision could not constitute an
unfair labor practice. In addition, the Police argued that
the Union's unfair labor practice charge was untimely
filed, and consequently the hearing officer's decision
has no effect. The Police's jurisdictional arguments,
repeated now on appeal, contended that the subject of
employee termination is barred from inclusion in a CBA
because inclusion would be inconsistent with law. In
addition, the Police argued that the subject of employee
termination is specifically provided for by federal statute,
and thus excluded from the scope of a CBA.
Board held that the unfair labor practice charge was timely
filed, and rejected the Police's jurisdictional
arguments. On September 25, 2017, the Board issued its
decision and order. The order specifies that the Police cease
and desist from failing to fully implement the
arbitrator's May 13, 2014, award, as supplemented by the
arbitrator's June 17, 2014, order.
Police petitions this court for review of the Board's
decision, and the OOC for its part cross-applies to this
court for an order enforcing the Board's decision and
order. We have jurisdiction over the Police's petition
under 2 U.S.C. § 1407(a)(1)(D) and jurisdiction over the
OOC's application under 2 U.S.C. § 1407(a)(2). We
apply the Administrative Procedure Act ("APA")
standard of review, 5 U.S.C. § 706, to enforcement
actions brought under § 1407(a)(2). U.S. Capitol
Police v. Office of Compliance ("Capitol Police
I"), 908 F.3d 748, 758 (Fed. Cir. 2018). As for the
Police's petition, we apply the standard of review set
out in 2 U.S.C. § 1407(d), which we have said "is
essentially identical to the APA standard." Id.
at 755 n.4.
reasons set forth below, we deny the Police's petition
and grant the OOC's application.
case does not present any challenge to the merits of the
arbitrator's decision to reinstate the officer in
question, nor is there any question that the CBA, to which
the Police is bound, required an arbitrator vested with
jurisdiction to make a final decision in the case. The only
question before us is whether the Police committed an unfair
labor practice. The Police does not contest that refusal to
comply with an arbitrator's award under a CBA is an
unfair labor practice. The Police argues here, as below, that
the arbitrator had no jurisdiction over the case in the first
place, leaving the arbitral award a nullity on its face, and
thus refusal to comply with the award cannot constitute an
unfair labor practice.
Police's jurisdictional argument is presented in two
forms. The first is that the subject of employee termination
is excluded entirely from CBAs covering legislative branch
employees. That argument is premised on the fact that the Act
does not provide for judicial review of employee termination
decisions, and borrows its strength from cases decided under
the Civil Service Reform Act of 1978 ("CSRA"), Pub.
L. No. 95-454, § 205, 92 Stat. 1111, 1143. Under that
statutory regime, which covers executive branch employees,
certain employees lack judicial review of adverse actions
taken against them by executive branch agencies. In a number
of post-CSRA cases, executive branch employees lacking
statutory appeal rights under the CSRA sought to obtain
judicial review of adverse actions taken against them in
other fora. In United States v. Fausto, 484 U.S. 439
(1988), and subsequent related cases, it was held that where
Congress denied direct judicial review in the CSRA, it would
violate the CSRA to permit an alternative avenue of judicial
review. Because the Act provides no direct judicial review
for employee termination, and because the CBA grants review
of employee termination, the Police argues the situation
under the CBA is like that in the post-CSRA cases, where a
party denied judicial review by the CSRA was denied judicial
review elsewhere. The Police thus contends that it is
inconsistent with that CSRA body of law to allow employee