United States Capitol Police v. OFFICE OF CONGRESSIONAL WORKPLACE RIGHTS, Cross-Applicant FRATERNAL ORDER OF POLICE,…

United States Court of Appeals
for the Federal Circuit
______________________
UNITED STATES CAPITOL POLICE,
Petitioner
v.
OFFICE OF CONGRESSIONAL WORKPLACE
RIGHTS,
Cross-Applicant
FRATERNAL ORDER OF POLICE, UNITED
STATES CAPITOL POLICE LABOR COMMITTEE,
Intervenor
______________________
2022-1983, 2022-2222
______________________
Petition for review and cross-application for enforce-
ment of a decision of the Board of Directors of the Office of
Congressional Workplace Rights in No. 20-LMR-01 (CA).
______________________
Decided: July 31, 2024
______________________
P AUL F RANCIS ENZINNA, Ellerman Enzinna Levy PLLC,
Washington, DC, argued for petitioner. Also represented
by MICHAEL N ATHANIEL L EVY ; K ELLY MARISSA SCINDIAN,
Office of Employment Counsel, United States Capitol Po-
lice, Washington, DC.
J OHN MICKLEY , Office of Congressional Workplace
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UNITED STATES CAPITOL POLICE v. OCWR 2
Rights, Washington, DC, argued for cross-applicant. Also
represented by J OHN D. U ELMEN.
MEGAN K ATHLEEN MECHAK, McGillivary Steele Elkin
LLP, Washington, DC, argued for intervenor.
______________________
Before P ROST , HUGHES , and STOLL , Circuit Judges.
HUGHES , Circuit Judge.
The United States Capitol Police appeals the Office of
Congressional Workplace Rights Board of Directors’ deci-
sion holding, on summary judgment, that the United
States Capitol Police had committed an unfair labor prac-
tice. The Fraternal Order of Police, United States Capitol
Police Labor Committee intervened. Because there are gen-
uine issues of material fact regarding notice, we reverse the
grant of summary judgment and remand for further pro-
ceedings.
I
We begin by explaining the applicable legal framework
before turning to the facts and procedural history of this
appeal.
A
The Congressional Accountability Act of 1995 (CAA)
(codified at 2 U.S.C. §§ 1301–1438) provides “certain legis-
lative branch employees with some of the same collective
bargaining rights as those enjoyed under other statutes by
certain executive branch employees.” U.S. Capitol Police v.
Off. of Compliance, 908 F.3d 776, 781 (Fed. Cir. 2018). The
CAA accomplishes this by incorporating many provisions
of the Federal Service Labor-Management Relations Stat-
ute (FSLMRS) (codified at 5 U.S.C. §§ 7101–35).
“The [FSLMRS] requires agencies to bargain in good
faith with their employees’ recognized representative
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UNITED STATES CAPITOL POLICE v. OCWR 3
regarding ‘conditions of employment,’ . . . which include
‘personnel policies, practices, and matters, whether estab-
lished by rule, regulation, or otherwise, affecting working
conditions,’ . . . .” Nat’l Treasury Emps. Union v. FLRA, 745
F.3d 1219, 1221 (D.C. Cir. 2014) (citing 5 U.S.C. §§ 7101(2);
7103(a)(12), (14); 7114(a)(4), (b)). The Federal Labor Rela-
tions Authority (FLRA) has understood the good-faith bar-
gaining requirement to require an agency to provide its
employees with “notice of the change and an opportunity to
bargain over those aspects of the change that are within
the duty to bargain” unless the change will only have a de
minimis effect on the condition of employment. Id. (quoting
U.S. Dep’t of Air Force, Air Force Material Command,
Space & Missile Sys. Ctr., Detachment 12, Kirtland Air
Force Base, N.M., 64 F.L.R.A. 166, 173 (2009)).
Under 5 U.S.C. § 7106(a), an agency has certain statu-
tory management rights, subject to the limitations in sub-
section (b). See, e.g., U.S. Capitol Police, 908 F.3d at 782.
An agency generally has “the right to control its internal
organization, the number of employees, and work assign-
ments . . . .” Nat’l Treasury Emps. Union, 745 F.3d at 1221.
An agency also has the right “to take whatever actions may
be necessary to carry out the agency mission during emer-
gencies.” 5 U.S.C. § 7106(a)(2)(D). An agency is not re-
quired to bargain over its exercise of its management
rights. See Nat’l Ass’n of Gov’t Emps., Local R5-136 v.
FLRA, 363 F.3d 468, 471–72 (D.C. Cir. 2004) (interpreting
FSLMRS). Nonetheless, labor organizations can negotiate,
for example, “procedures which management officials of
the agency will observe in exercising any authority under
this section” and “appropriate arrangements for employees
adversely affected by the exercise of any authority under
this section by such management officials.” 5 U.S.C.
§ 7106(b). This is referred to as “impact and implementa-
tion” bargaining. See Nat’l Treasury Emps. Union v. FLRA,
414 F.3d 50, 53 (D.C. Cir. 2005). Therefore, “[a]lthough an
agency is not required to bargain over its management
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UNITED STATES CAPITOL POLICE v. OCWR 4
rights, . . . it must negotiate about the impact and imple-
mentation of its exercise of those rights.” Nat’l Treasury
Emps. Union, 745 F.3d at 1221.
An agency that does not comply with applicable bar-
gaining procedures may have committed an unfair labor
practice in violation of the FSLMRS. Section 7116 of the
FSLMRS lists unfair labor practices. See 5 U.S.C.
§ 7116(a). In particular, an agency commits an unfair labor
practice where it: “(1) . . . interfere[s] with, restrain[s], or
coerce[s] any employee in the exercise by the employee of
any right under this chapter; . . . (5) . . . refuse[s] to consult
or negotiate in good faith with a labor organization as re-
quired by this chapter; [or] . . . (8) . . . otherwise fail[s] or
refuse[s] to comply with any provision of this chapter.” Id.
B
The United States Capitol Police (USCP) is a legisla-
tive-branch law enforcement agency, subject to the CAA,
charged with “secur[ing] and protect[ing] the Congress and
the U.S. Capitol 24 hours a day, 365 days a year to ensure
the continuity of our representational government.”
J.A. 457; see also 2 U.S.C. § 1901. The USCP’s officers are
represented by the Fraternal Order of Police, District of Co-
lumbia Lodge No. 1 (Union), pursuant to a collective bar-
gaining agreement (CBA). J.A. 3; J.A. 49–152 (copy of the
CBA).
Subsection 8.02 of the CBA addresses procedures for
bargaining over the impact and implementation of any de-
partmental change in conditions of employment. J.A. 71. In
particular, the USCP must “notify the Union’s Chairman
or other designated representative of the proposed or an-
ticipated change, in writing and as far in advance as possi-
ble, but generally not later than twenty-one (21) days
before implementation.” J.A. 71. Then, if the Union “wishes
to negotiate on the decision,” it has fourteen days to inform
the USCP and “disclose its specific proposals for negotia-
tion to the proposed changes.” J.A. 71. Then, the Union and
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UNITED STATES CAPITOL POLICE v. OCWR 5
the USCP will “meet to negotiate on negotiable aspects of
the Union’s proposal,” and once an agreement is reached
“on any impact and implementation aspects of the decision,
the Department will implement the change in accordance
with the terms agreed upon.” J.A. 71. If the parties do not
come to an agreement, Subsection 8.03 provides for further
procedures. J.A. 72.
1
On March 20, 2020, faced with the COVID-19 pan-
demic, USCP Chief of Police Steven Sund notified Union
Chairman Gus Papathanasiou that the USCP was sus-
pending the CBA under Article 8, Subsection 8.04, and 5
U.S.C. § 7106(a)(2)(D), effective immediately.1 J.A. 3–4.
Mr. Papathanasiou, while recognizing that “the present
circumstances are ‘exceptional,’” expressed the Union’s dis-
agreement with the Chief of Police’s decision. J.A. 4. The
Union disputed the USCP’s authority to unilaterally sus-
pend the entire CBA under Subsection 8.04 of the CBA and
5 U.S.C. § 7106(a)(2)(D). See J.A. 687–88; see also J.A. 8–9.
The Union maintained that Subsection 8.02 provided that
in the case of “exceptional or unforeseen circumstances,”
the 21-day notice requirement may be shortened, and this
would be sufficient for the USCP to respond to the pan-
demic. J.A. 453. Nonetheless, the USCP suspended the en-
tire CBA until July 15, 2020, when “the USCP sent a letter
to the [Union] advising that it was reinstating certain
1 Subsection 8.04 of the CBA, titled “Suspension of
Provision(s) of the Agreement,” allows the Chief of Police
to “suspend temporarily the implementation of provisions
of the [CBA] that would prevent or impede accomplishment
of the [USCP’s] mission” during an emergency. J.A. 263.
“Emergency situations include, but are not limited to, riots,
demonstrations, fires, floods and other disasters/events.”
J.A. 72.
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UNITED STATES CAPITOL POLICE v. OCWR 6
articles of the CBA.” J.A. 5–6. Other articles were rein-
stated at different points over the following months. See
J.A. 6.2
2
While the CBA was suspended, the USCP “evaluate[d]
far reaching changes to its operations and administrative
support” in response to the COVID-19 pandemic. J.A. 444
(¶ 10). The USCP, in making these changes, sought to
“lessen the likelihood that employees would contract
COVID-19 in the workplace by mandating social distanc-
ing,” ensuring that employees who may have COVID-19
were “kept out of the workplace,” suspending any activities
or the use of any facilities that may “increase the risk of
exposure to the virus,” providing its employees “timely and
accurate information” about, among other things, “changes
to the Department’s operations or administrative func-
tions,” furnishing employees with the necessary supplies
and protective equipment, and conducting certain activi-
ties remotely. J.A. 444–45 (¶¶ 10–15).
These measures were outlined in a May 7, 2020, letter
to Congressman Steny H. Hoyer, referred to as the “Hoyer
Letter.” J.A. 445 (¶ 16); J.A. 165–73 (copy of the Hoyer Let-
ter). In that letter, the USCP explained that it “has imple-
mented a comprehensive and aggressive COVID-19
response plan that affects nearly every aspect of the
[USCP’s] operations, administrative functions, safety pro-
tocols, and facilities management.” J.A. 165. The letter
goes on to list several pages of changes in a bulleted list,
describing them as “some, but not all, of the significant
changes the [USCP] implemented.” J.A. 165–69. Later in
2 All provisions of the CBA were reinstated by April
2021. See Oral Arg. at 49:41–52, available at
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22
-1983_03052024.mp3.
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UNITED STATES CAPITOL POLICE v. OCWR 7
the Hoyer Letter, the USCP recognized its obligation under
the CBA to notify the Union of changes in working condi-
tions and accepted that “[m]ost of the changes described [in
the bulleted list] likely are changes in working conditions.”
J.A. 170.
In the Hoyer Letter, the USCP explained that suspend-
ing the entire CBA, including the notice provisions, allowed
it to quickly adapt its operations in view of the ongoing pan-
demic. See J.A. 170 (“In a pandemic situation when indi-
viduals may become symptomatic after 14 days, the
Department cannot wait months, or longer, to implement
changes intended to maintain the health of its workforce.”).
3
The Union alleges it did not receive a copy of the Hoyer
Letter or otherwise have notice of the changes detailed in
the letter until early May 2020. See, e.g., Cross-Applicant’s
Br. 22–25; J.A. 401–02 (¶ 7). The Union did not formally
receive a copy of the letter from the USCP until June 8,
2020. J.A. 401–02 (¶ 7).
By contrast, after the CBA was suspended, Mr. Sund
attested that he “had email, telephone, and text communi-
cations with [Union] executive board members, including
Chairman Papathanasiou, and Vice Chairmans Keith
McFaden and Vincent Summers” “[n]early every day.” J.A.
445 (¶ 17). Therefore, according to the USCP, the Union
had notice of the changes outlined in the Hoyer Letter. See
J.A. 445 (¶ 17) (“These communications concerned many of
the changes the [USCP] implemented as well as Union sug-
gestions of steps the [USCP] could take.”); see also J.A. 447
(¶ 22). While the CBA was suspended in early 2020,
Mr. Sund “received only two communications from the Un-
ion regarding specific proposals submitted in response to
changes in condition of bargaining unit members’ employ-
ment,” one of which Mr. Sund agreed to, and the other
which was denied “because the proposals were not negotia-
ble.” J.A. 446–47 (¶¶ 18–21). The USCP maintains that
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UNITED STATES CAPITOL POLICE v. OCWR 8
this shows that the Union did have sufficient notice. See,
e.g., Pet’r’s Reply Br. 2 n.2.
C
Three days after the USCP notified the Union that the
CBA was suspended, on March 23, 2020, the Union filed an
unfair labor practice charge with the Office of Congres-
sional Workplace Rights’ General Counsel (General Coun-
sel). J.A. 4. The Union alleged that the USCP violated
§ 7116(a)(1), (5), and (8) of the FSLMRS when it “failed to
provide proper notice, failed to negotiate the USCP’s emer-
gency response plan to COVID-19, and unilaterally sus-
pended the entire CBA.” J.A. 4; see also J.A. 21–22 (¶ 7).
In November 2020, the General Counsel filed a com-
plaint against the USCP, alleging the USCP committed un-
fair labor practices in responding to the COVID-19
pandemic. J.A. 20–30 (Complaint); see also J.A. 6. After a
pretrial conference, the Office of Congressional Workplace
Rights (OCWR) hearing officer “determined that no genu-
ine issue exists as to any material fact in this case” and
directed the parties to file cross-motions for summary judg-
ment. J.A. 193–94.
On January 29, 2021, the hearing officer granted sum-
mary judgment for the General Counsel and the Union and
denied the USCP’s cross-motion for summary judgment.
J.A. 696–97 (hearing officer decision). The hearing officer
held that the USCP committed unfair labor practices in vi-
olation of § 7116(a)(1), (5), and (8). J.A. 697 (¶¶ 2–4). Par-
ticularly, the USCP committed an unfair labor practice
when it (1) suspended the entire CBA; (2) did not reinstate
provisions of the CBA that “did not interfere with carrying
out its mission”; and (3) did not bargain with the Union
“over changes to conditions of employment that it unilater-
ally implemented after suspending the parties’ CBA.”
J.A. 697 (¶¶ 2–4). In addition, the hearing officer concluded
that the USCP committed an unfair labor practice in viola-
tion of § 7116(a)(1) and (8) “when it suspended and refused
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UNITED STATES CAPITOL POLICE v. OCWR 9
to reinstate the grievance and arbitration provisions con-
tained in Article 32 of the parties’ CBA . . . .” J.A. 697 (¶ 5).
The hearing officer thereafter ordered the USCP to “cease
and desist and to take certain affirmative action designed
to effectuate the policies of the CAA.” J.A. 698–99.
D
The USCP appealed to the OCWR Board of Directors
(Board). See J.A. 2–19. On April 4, 2022, the Board af-
firmed in part the portion of the hearing officer’s decision
finding “that the USCP committed an unfair labor practice
when it failed to engage in good faith bargaining after its
suspension of the CBA.” J.A. 7–8. The Board concluded
that “the undisputed record establishes that the USCP
failed to give the Union specific and definitive notice of the
USCP’s unilateral changes in conditions of employment
implemented as part of its COVID-19 response plan, in-
cluding the scope and nature of those changes and the cer-
tainty and timing of those changes . . . .” J.A. 13, 15. Since
the Board concluded that its determination that the USCP
failed to give sufficient notice was “adequate to sustain the
[h]earing [o]fficer’s conclusion that the USCP violated the
FSLMRS,” the Board did “not reach the [h]earing
[o]fficer’s” additional “grounds for reaching this conclu-
sion.” J.A. 13–14. The Board adopted the hearing officer’s
“findings and conclusions only to the extent consistent with
this Decision.” J.A. 13–14. The Board also sustained the
hearing officer’s order on remedial action. J.A. 14–15.
E
The USCP timely filed the present appeal. We have ju-
risdiction over any proceeding commenced under 2 U.S.C.
§ 1351(c)(3) by the General Counsel and may “set aside,
suspend (in whole or in part), . . . determine the validity of,
or otherwise review the decision of the Board.” 2 U.S.C.
§ 1407(a)(1)(D).
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UNITED STATES CAPITOL POLICE v. OCWR 10
II
Motions for summary judgment before the OCWR are
governed by the same requirements as motions for sum-
mary judgment under Federal Rule of Civil Procedure 56.
See Dep’t of V.A., V.A. Med. Ctr., Nashville, Tenn., AFGE
Local 2400, 50 F.L.R.A. 220, 222 (1995); OCWR Proc. Rules
§ 5.03(d). Therefore, summary judgment is appropriate
where “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56.
We review the Board’s grant of summary judgment de
novo. Cienega Gardens v. United States, 331 F.3d 1319,
1328 (Fed. Cir. 2003) (“Summary judgment, however, is, of
course, in all respects reviewed de novo.”); see also Leggett
v. Off. of Cong. Workplace Rts., 2023 WL 1459276, at *1 n.1
(Fed. Cir. Feb. 2, 2023) (reviewing Board’s grant of sum-
mary judgment de novo). When evaluating whether a mo-
vant is entitled to summary judgment, we “believe[]” the
evidence of the non-movant and draw “all justifiable infer-
ences” in her favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
III
On appeal, the USCP argues that the General Counsel
and the Union failed to prove they were entitled to sum-
mary judgment, see, e.g., Pet’r’s Br. 18, 30–31, and asks us
to “set aside the Board’s decision,” Pet’r’s Br. 31; see also
Pet’r’s Reply Br. 14 (same). The General Counsel and the
Union defend the Board’s decision and ask us to enforce the
Board’s remedial order. Cross-Applicant’s Br. 37–39; Inter-
venor’s Br. 19. Reviewing de novo, we conclude that genu-
ine issues of material fact preclude the grant of summary
judgment in the General Counsel and Union’s favor be-
cause they have not established that the USCP failed to
bargain in good faith with the Union over any changes in
conditions of employment listed in the Hoyer Letter.
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UNITED STATES CAPITOL POLICE v. OCWR 11
We begin by agreeing with the USCP that the Board
erred in granting the General Counsel and the Union’s mo-
tions for summary judgment without deciding which
changes, listed in the Hoyer Letter, were changes in condi-
tions of employment. Without a determination of which
changes were changes in conditions of employment subject
to bargaining and when those changes were made, we can-
not evaluate whether notice of that change was necessary,
and if so, whether the Union was provided with adequate
notice. The Board merely listed the changes at the end of
its decision, describing them as “35 items regarding opera-
tional changes impacting bargaining unit employees.”3
J.A. 5, 11, 16–19. And as discussed at oral argument, not
all of the changes seem to be properly considered as
changes in conditions of employment. See Oral Arg. at
35:06–40:14 (General Counsel), 58:36–59:27 (USCP). For
example, “develop[ing] enhanced cleaning schedules
for . . . facilities[] . . . most frequented by [USCP] officers,”
is not obviously a change in the conditions of employment.
J.A. 168. Reviewing de novo, and drawing all inferences in
the USCP’s favor, as we must, there are genuine disputes
of material fact regarding which changes, if any, triggered
the USCP’s duty to bargain in good faith.
Turning to notice, the USCP argues that the General
Counsel and the Union failed to meet their burden on sum-
mary judgment to show that the Union had no notice of the
changes described in the Hoyer Letter. See, e.g., Pet’r’s Br.
3 While the Board characterized the Hoyer Letter’s
statement that “[m]ost of the changes described . . . likely
are changes in working conditions” (J.A. 462) as an admis-
sion, see J.A. 5, we disagree that the USCP has admitted
this fact. On summary judgment, we must make all reason-
able inferences in the USCP’s favor, and as the USCP ar-
gues, at least some changes listed do not appear, on this
record, to be changes in conditions of employment.
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UNITED STATES CAPITOL POLICE v. OCWR 12
19–23; Pet’r’s Reply Br. 3–6. The General Counsel and the
Union respond that the Union never received adequate no-
tice of the changes in conditions of employment and argue
that the USCP has failed to bring forth affirmative evi-
dence to support its position. See, e.g., Cross-Applicant’s
Br. 18–21, 26–32; Intervenor’s Br. 12–14. Here, too, there
are genuine issues of material fact regarding whether the
Union received notice of any changes in conditions of em-
ployment and had an opportunity to bargain over any as-
pects of the change that are “within the duty to bargain.”
See Nat’l Treasury Emps. Union, 745 F.3d at 1221 (citation
omitted).
Generally, notice must be provided “prior to imple-
menting a change in conditions of employment.” See id. (ci-
tation omitted). However, where an agency is forced to act
during an emergency, the FLRA has determined that post-
implementation notice can be sufficient. See Dep’t of Home-
land Sec. Border & Transp. Directorate, Nat’l Treasury
Emps. Union, 61 F.L.R.A. 272, 292 (2005) (“Requiring pre-
implementation bargaining would effectively nullify sec-
tion 7106(a)(2)(D) with respect to emergencies that could
not be anticipated in advance.”).
Here, while there is evidence that the Union did not
receive the Hoyer Letter and the list of changes it details
until May 7, 2020, see J.A. 401 (¶ 7), there is also evidence
indicating that the USCP and the Union regularly commu-
nicated about the USCP’s COVID-19 response, see, e.g.,
J.A. 169; J.A. 445 (¶ 17); J.A. 525–26 (¶ 35). In addition,
the Union submitted two bargaining proposals, which sug-
gests that at least some changes were communicated to the
Union. J.A. 446 (¶¶ 18–20); J.A. 470–71 (Union demand to
bargain over the USCP’s failure to provide the names of
Union employees who tested positive for COVID-19); J.A.
473–75 (USCP response); J.A. 467–68 (email exchange
wherein Union Chairman requested extending the period
during which a bargaining unit employee could appeal dis-
ciplinary action and the USCP agreed). Drawing all
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UNITED STATES CAPITOL POLICE v. OCWR 13
inferences in the USCP’s favor, there is sufficient evidence
of notice to preclude summary judgment.
Because genuine issues of material fact preclude the
grant of summary judgment, the Board erred in affirming
in part the hearing officer’s decision to grant summary
judgment. As such, we decline to enforce the Board’s order,
as requested by the General Counsel and the Union. See
Cross-Applicant’s Br. 36–38; Intervenor’s Br. 19.
IV
We conclude that the Board of Directors erred in af-
firming in part the hearing officer’s grant of summary judg-
ment in favor of the General Counsel and the Union.
Because we are reversing the grant of summary judgment
and remanding for further proceedings, we need not con-
sider the USCP’s arguments regarding additional errors
the Board allegedly committed in affirming the grant of the
motions.
We reverse and remand for further proceedings con-
sistent with this opinion.
REVERSED AND REMANDED
COSTS
Costs to the USCP.
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