American Federation of Government Employees v. FLRAAmerican Federation of Government Employees v. FLRA
On Petition for Review of an Order of the Federal Labor Relations Authority
Matthew W. Milledge argued the cause for petitioner. With him on the briefs were David A. Borer and Andres M. Grajales.
Noah Peters, Solicitor, Federal Labor Relations Authority, argued the cause for respondent. With him on the brief was Rebecca J. Osborne, Deputy Solicitor.
Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit Judge, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAREN LECRAFT HENDERSON, Circuit Judge: The Federal Service Labor-Management Relations Statute (FSLMRS or Statute),
I. BACKGROUND
The FSLMRS “requires a federal agency to negotiate in good faith with the chosen representative of employees covered by the Statute,
The Statute defines “conditions of employment” as follows:
“conditions of employment” means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters—
(A) relating to political activities prohibited under subchapter III of chapter 73 of this title;
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by Federal statute.
The employing agency in this case is the CBP. The employees are CBP agents who conduct vehicle inspections at border checkpoints in the El Paso, Texas sector. The agents’ primary responsibility at the checkpoints is to inspect vehicles entering the United States. The checkpoint is divided into two areas—the primary inspection area and the secondary inspection area. The primary area consists of lanes in which vehicles first enter, stop and are inspected. In this area, agents inspect the vehicle, scan the license plate number and examine the occupants’ identifying documents. The secondary area is designed for additional inspection. Agents in the primary area have discretion to send a vehicle to the secondary area for a more thorough inspection—where information like license plate numbers and identifying document data can be run through various databases. The main distinction between the two areas is the duration of the stop and the singling out of a vehicle for additional inspection.
In 2014, the CBP division chief for the El Paso sector discovered that some agents in the primary area were failing to detect fraudulent documents. To address this lapse, the division chief distributed a memorandum to agents entitled “El Paso Sector Checkpoint Operations.” Joint Appendix (JA) at 1. The Memo directed agents to (1) “send vehicles with more than one occupant when at least one of the occupants is a non U.S. citizen who present[s] some form of immigration document, to the secondary inspection area for a more thorough immigration inspection, interview, document review, and if needed to conduct a records check” and to (2) “request a second form of identification from non U.S. citizens in order to further confirm the identity of the presenter.” Id. The Memo allowed agents to modify the Memo‘s instructions at their discretion in order to accommodate “local residents, daily commuters, and other trusted travelers who regularly pass through” or when “safety to the public and/or our agents may be an issue, i.e. traffic is backed up, weather related issues, etc.” Id.
In response to the Memo, the AFGE filed a grievance on behalf of the agents alleging that the CBP violated the Statute by changing a condition of employment without notifying and negotiating with the Union. The CBP denied the grievance and the parties submitted the matter to arbitration. The arbitrator agreed with the
The CBP filed exceptions to the arbitration award with the Authority. The Authority issued an order setting aside the award. U.S. Dep‘t of Homeland Sec. U.S. Customs & Border Prot. El Paso, Tex., 70 F.L.R.A. 501 (2018) (El Paso I). First, the Authority took “the opportunity” to correct its “erroneous” precedent by “clarify[ing] that there is a distinction between” the terms “conditions of employment” and “working conditions” in the Statute. Id. at 501, 503. Second, the Authority concluded that the Memo did not constitute a change that must be bargained over for three reasons: (1) its past decisions had “held that mere increases or decreases in normal duties do not constitute changes over which an agency must bargain,” (2) the Memo “did not change the nature of or the type of duties the officers performed,” and (3) “the directions contained in the [Memo] did not change anything and they did not impact a condition of employment.” Id. at 503–04.
The Union moved for reconsideration. The Authority denied the motion, relying largely on the reasons supporting its original order. U.S. Dep‘t of Homeland Sec. U.S. Customs & Border Prot. El Paso, Tex., 71 F.L.R.A. 49 (2019) (El Paso II). The AFGE now petitions for review of the Authority‘s orders.1
II. ANALYSIS
We have jurisdiction of the AFGE‘s petition for review under
We “will set aside an order of the Authority only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.‘” Id. at 1223 (quoting
Here, the Authority‘s El Paso I order failed to reasonably explain its departure from precedent and its decision denying the AFGE‘s bargaining request. Specifically, it failed to explain how its decision comports with the express language of
A. THE STATUTE AND AUTHORITY PRECEDENT
We begin with the Statute itself. “Conditions,” on its own, is subject to “two common meanings“—(1) “matters ‘established or agreed upon as a requisite to the doing . . . of something else‘“; or (2) “‘attendant circumstances,’ or an ‘existing state of affairs.‘” Fort Stewart, 495 U.S. at 645 (citation omitted). Thus, “conditions,” as used in the statutory phrases “conditions of employment” and “working conditions,” is ambiguous. See id. But unlike the phrase “working conditions,” which is undefined by the Statute, “conditions of employment” is expressly defined in
For that reason, the Authority‘s claim in El Paso I that “the issuance of a memorandum which affects working conditions, but not conditions of employment, does not constitute a change over which CBP must bargain,” El Paso I, 70 FLRA at 501, would appear, at first blush, to contradict the Statute. If the relevant inquiry under
Instead, in El Paso I, the Authority took “the opportunity” to alter its precedent “to clarify that there is a distinction between” conditions of employment and working conditions but failed to explain its departure from precedent. El Paso I, 70 F.L.R.A. at 501, 503. Before El Paso I, the Authority defined “working conditions” in
particular words in a statute” and amounted to “circular reasoning.” 70 F.L.R.A. at 503 (alterations in original). The Authority then concluded that “[i]t is . . . imperative that we respect that distinction and define the differences for the labor-management relationships community.” Id.
Beyond stating that “[t]he terms are related, but they are not synonymous,” id., however, the Authority fails to explain the differences between the terms or how the alleged differences matter under the language of
Second, the Authority fails to explain how its definition of “working conditions” differs from the statutory definition of “conditions of employment.” It concludes the terms are not synonymous but then defines working conditions based on a misreading of Fort Stewart. It goes no further, leaving a gap in its reasoning. It does not explain how to tell the difference between what constitutes a condition of employment versus a working condition. More importantly, it does not explain how its revised interpretation substantively changes what aspects of employment are bargainable under
On appeal, the Authority argues that it did explain the difference by relying on concurrences of former FLRA Chairman Dale Cabaniss in earlier cases. But the Authority cites those concurrences only to support the proposition that conditions of employment and working conditions are not synonymous, see 70 F.L.R.A. at 503 n.33; it does not elaborate on Cabaniss‘s view of the distinction between the terms. And if we look to Cabaniss‘s explanation of how conditions of employment and working conditions are different, that explanation does not help the Authority on the facts of this case. In the cited concurrences, Cabaniss articulated the distinction between the two terms:
As reflected in our Statute, “conditions of employment” is a term of art expressly defined at
§ 7103(a)(14) that means “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions.” Clearly, “conditions of employment” and “working conditions” are related, but they are not the same thing. For example, “working conditions” would be an employee‘s work starting and stopping times, or whether the employee has the ability to take home a government owned vehicle (GOV): “conditions of employment” would be the “rules, regulations, or otherwise” that define the hours of work for the bargaining unit, or determine whether or what employees have the right to take that GOV home.
U.S. Dep‘t of Veterans Affairs Med. Ctr. Sheridan, Wyo., 59 F.L.R.A. 93, 95 (2003) (Cabaniss, Chairman, concurring).3 Under this reasoning, a memo setting forth procedures for where and how agents conduct inspections would seem to meet Cabaniss‘s definition of conditions of employment. In other words, had the Authority in El Paso I used Cabaniss‘s formulation to explain the distinction between working conditions and conditions of employment under the Statute, it still would not provide sufficient support for the Authority‘s conclusion—without further explanation—that the CBP was not required to bargain over the Memo.
In sum, the Authority departed from precedent based on a misreading of case law and without explaining the departure. Such a change is not “sensibly explained.” FedEx Home Delivery, 849 F.3d at 1127.
B. THE MEMO
The Authority also fails to explain its determination that the Memo is not a change over which the CBP must bargain. First, the Authority turns to precedent concluding that an agency need
conditions.” NTEU, 66 F.L.R.A. at 579. Increases or decreases “‘[s]tanding alone’ do not trigger notice-and-bargaining obligations.” Id. (alteration in original) (citation omitted). Granted, in a case involving changes in the location of the processing of immigrants in response to an unusual influx of immigration at the U.S. border, the Authority determined that “[e]ven if we were to consider that increase to be attributable to the Respondent, we would find, based on our precedent, that dismissal of the complaint is warranted because there was no change in unit employees’ conditions of employment.” U.S. Dep‘t of Homeland Sec. Border & Transp. Sec. Directorate U.S. Customs & Border Prot. Border Patrol, Tucson Sector Tucson, Az. (CBP Tucson), 60 F.L.R.A. 169, 174 (2004). But in that decision the Authority went on to say that “nothing in the record establishes that the Respondent changed the ‘type’ of aliens that were being processed, the type of work that bargaining unit employees performed or, in any manner, the processing of alien apprehensions.” Id. (emphasis added). Here, on the other hand, to the extent the duties of the secondary area agents increased, that increase was caused by the change in procedure dictated by the Memo. Moreover, unlike CBP Tucson, the Memo changed the inspection procedure in the primary and secondary areas—as noted earlier, agents were required to conduct inspections in the primary and secondary areas in ways different from those used before the Memo‘s issuance.4
Second, the Authority maintains that the Memo “did not change the nature of or the type of duties the officers performed.” El Paso I, 70 F.L.R.A. at 503. Relying on
Unlike Eglin, where the agency changed the aircraft that engineers were assigned to work on, the Memo changed how agents conduct border inspections—i.e. their practice—in the primary and secondary areas, including how and where agents direct certain vehicles. Assuming arguendo the changes do not constitute changes in personnel policies, practices or matters that affect agents’ working conditions, El Paso I fails to explain why they do not.
says that “[n]othing in this section shall preclude any agency and any labor organization from negotiating . . . procedures which management officials of the agency will observe in exercising any authority under this section,”
Third, the Authority concludes that “the directions contained in the memorandum did not change anything and they did not impact a condition of employment.” El Paso I, 70 F.L.R.A. at 504. But the Memo plainly changed something. What the Authority must make clear—and has not—is whether the change was a change in a personnel policy, practice or matter that affected working conditions. On its face, the Memo changes how and where certain inspections are performed at border checkpoints, which results in different instructions for agents in the primary area, more cars in the secondary area and the potential of increased risk to secondary area agents. The Authority fails to explain why these changes do not constitute a change in conditions of employment under
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Agencies reading El Paso I are left wondering how the Authority reached its decision that the CBP was free to issue the Memo without bargaining in light of
For the foregoing reasons, we grant the AFGE‘s petition for review, vacate El Paso I and remand to the Authority for further proceedings consistent with this opinion.6
So ordered.