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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2005 Decided April 15, 2005
No. 04-1157
NATIONAL TREASURY EMPLOYEES UNION,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of an Order of the
Federal Labor Relations Authority
Timothy B. Hannapel argued the cause for petitioner. On
the briefs were Gregory O'Duden, Larry J. Adkins, and Caryl
L. Casden.
David M. Shewchuk, Attorney, Federal Labor Relations
Authority, argued the cause for
respondent. With him on the brief were David M. Smith,
Solicitor, and William R. Tobey, Deputy Solicitor.
Before: EDWARDS, SENTELLE and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Concurring opinion filed by Circuit Judge ROBERTS.
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SENTELLE, Circuit Judge: National Treasury Employees
Union (“NTEU” or “the Union”) petitions for review of a
decision of the Federal Labor Relations Authority (“FLRA” or
“the Authority”), wherein the Authority held that the United
States Customs Service (“Customs” or “the Service”) is not
required to negotiate over a Union proposal concerning the
storage of handguns. Although the Authority correctly ruled
that the proposal came within the exemption of negotiability for
“internal security practices” created by 5 U.S.C. § 7106(a)(1),
the Authority erred in failing to follow its own precedent in
determining whether the bargaining proposal constituted an
“appropriate arrangement” subjecting it to bargainability under
5 U.S.C. § 7106(b)(3). Therefore, for the reasons more fully set
out below, we grant the petition for review.
I. Background
Petitioner Union represents Customs Service employees
who, as a condition of their employment as law enforcement
officers, are required to carry firearms. Customs employees
have carried firearms as a part of their duties for many years,
and over the years Customs has promulgated a number of
internal security practices relating to the use and storage of those
firearms. In 1986, Customs Directive No. 45-07 (Feb. 10, 1986)
required that “[e]ach Customs officer carrying a firearm in the
performance of official duties is responsible for the safe storage,
operation, general care and maintenance of the firearm.” In
1996, Customs issued a “Firearms and Use of Force Handbook,”
that again emphasized the individual employee’s responsibility
for securing his firearm: “Employees are expected to exercise
good judgment in providing adequate security to all Service-
issued and Service-authorized, personally-owned firearms.”
Finally, in 2000, Customs issued two policy statements on the
subject of firearms. On March 3, 2000, the Acting Assistant
Commissioner of Customs, Office of Field Operations, issued a
3
memorandum authorizing customs agents, at their election, to
carry their firearms twenty-four hours a day. Prior to that time,
Customs had directed employees to store their firearms
overnight in the Customs facilities “where appropriate security
is available,” or to “go directly home from work” in order to
secure their firearms at home. Under the new twenty-four-hour
carry policy, the agency in effect decreased the burden on
employees by removing the requirement of travel directly to and
from home and work and giving them greater freedom of
movement, subject to such restraints as avoiding the
consumption of alcohol while carrying firearms.
On December 28, 2000, the Under Secretary of Treasury for
Enforcement1 issued a memorandum on the subject
“Implementation of Treasury Firearm Safety and Security
Policy,” which detailed safety and security responsibilities
required of firearms-carrying personnel. Among other things,
the memorandum required that the firearm be placed in a secure
locked container in a government office, or, if stored in a
residence, that the employee install a safety lock device and
guard against theft or unauthorized use of the firearm.
In response to the December 28, 2000 memorandum, the
Union introduced a proposal that would have required Customs
to provide secure on-site overnight firearms storage:
Customs will ensure that either a lockbox or other secure
and locked container such as a safe, file cabinet, or desk is
1
At the time that this dispute began, the Service was part of
the United Sates Department of the Treasury. It was transferred to the
Department of Homeland Security pursuant to the Homeland Security
Act of 2002, Pub. L. No. 107-296, codified at 6 U.S.C. § 203(1).
Neither party suggests that this transfer affects any issue before this
Court.
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available at all government offices where armed employees
work or are assigned. Routine overnight storage of a
firearm in a government office is permitted.
NTEU v. US Dep’t of the Treasury, US Customs Service, 59
F.L.R.A. 749 (2004). Customs declared the proposal
nonnegotiable. The Union filed a petition for review with the
Authority. The Authority held that the proposal interfered with
Customs’s right to determine its “internal security practices”
under 5 U.S.C. § 7106(a)(1) and also that the proposal did not
constitute a “procedure” or an “appropriate arrangement” under
5 U.S.C. §§ 7106(b)(2) & (3). Together, these holdings
constitute the Authority’s ruling that the proposal is
nonnegotiable. The Union petitioned us for review.
II. Analysis
The Federal Service Labor Management Relations statute,
5 U.S.C. §§ 7101-7135 (“the statute”), governs relations
between federal agency employers and federal employees. The
statute imposes a general duty upon the parties to bargain in
good faith, 5 U.S.C. § 7117, subject to specified statutory
exceptions. The Authority ruled that the proposal before it came
within one of those exceptions. Specifically, the Authority
relied upon the “management rights” section of the statute,
which protects the authority of management officials and
agencies, inter alia, “to determine the . . . internal security
practices of the agency.” 5 U.S.C. § 7106(a)(1). However, the
management rights section limits that protection by providing
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; or . . . appropriate arrangements
for employees adversely affected by the exercise of any
authority under this section by such management officials.” 5
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U.S.C. § 7106(b)(2) & (3). The Authority went on to rule that
the proposal before it did not constitute a “procedure”
exempting the proposal from the management rights
negotiability preclusion under § 7106(b)(2), or an “appropriate
arrangement” exempting the proposal under § 7106(b)(3).
We review decisions of the Authority under the
Administrative Procedure Act (“APA”), and will set such a
decision aside when it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law[.]” Bureau
of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 n.7
(1983). We will apply that standard of review to each step of
the Authority’s decision.
First, the Authority concluded that the Service had
established a link between its objective of securing its operations
and its policy or practices, and that the proposal conflicted with
its policy or practices. Therefore, the Authority held that the
proposal affected management’s right to determine its internal
security practices under § 7106(a)(1). 59 F.L.R.A. at 753-54
(citing Fraternal Order of Police, Lodge 1-F, 51 F.L.R.A. 143,
145 (1995) (“Lodge 1-F”)).
Second, the Authority concluded that the proposal required
adoption of security measures to ensure a specific level of
security. Therefore, the Authority held that the proposal was not
a negotiable procedure under Section 7106(b)(2). Id. at 754
(citing NFFE Local 1482, 44 F.L.R.A. 637, 648 (1992)).
With respect to Sections 7106(a)(1) and 7106(b)(2), the
Authority’s decision quite clearly was not arbitrary or
capricious. Storage of firearms at Service facilities certainly
implicates management’s right to determine its internal security
practices. 5 U.S.C. § 7106(a)(1). Likewise, because the
proposal would directly interfere with management’s right to
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determine its internal security practices by forcing the Agency
to commit to a change in its current security practices, the
proposal is simply not a negotiable procedure. 5 U.S.C. §
7106(b)(2); AFGE v. Air Force Logistics Command, 2 F.L.R.A.
604, 612-13 (1980), aff’d sub nom. Dep’t of Defense v. FLRA,
659 F.2d 1140, 1159 (D.C. Cir. 1981).
However, the Authority and the court still are left with the
question of whether the proposal constituted a negotiable
“appropriate arrangement” under § 7106(b)(3). The Authority’s
conclusion on that subject is not so unassailable as the first two.
Authority precedent established nearly twenty years ago holds
that:
In this and future cases where the Authority addresses a
management allegation that a union proposal of appropriate
arrangements is nonnegotiable because it conflicts with
management rights described in section 7106(a) or (b)(1),
the Authority will consider whether such an arrangement is
appropriate for negotiation within the meaning of section
7106(b)(3) or, whether it is inappropriate because it
excessively interferes with the exercise of management’s
rights.
Nat’l Assoc. of Gov’t Employees, Local R14-87 v. Kansas Army
Nat’l Guard, 21 F.L.R.A. 24, 31 (1986) (“KANG”) (emphasis
added). More specifically, the KANG test asks first what “the
nature and extent of the impact experienced by adversely
affected employees . . . is.” 21 F.L.R.A. at 32. Otherwise put,
the Authority determines “what conditions of employment are
affected and to what degree.” Id. If the effect is there so as to
raise the opportunity of an appropriate arrangement, the
Authority then asks “what is the precise limitation imposed by
the proposed arrangement on management’s exercise of its
reserved discretion or to what extent is managerial judgment
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preserved?” Id. In the present context, to apply the KANG test
the Authority had to ascertain how the agency exercised its right
to determine its internal security practices so that the Authority
could then determine whether the proposal “excessively
interfere[d]” with the agency’s exercise of its right. In the
decision before us, the Authority did not follow its own
precedent established in KANG. See, e.g., Association of
Civilian Technicians v. FLRA, 370 F.3d 1214, 1221 (D.C. Cir.
2004) (vacating an Authority decision and directing application
of the KANG test on rehearing).
It is well established that, despite the narrow scope of court
review of FLRA decisions, any agency’s “unexplained departure
from prior agency determinations” is inherently arbitrary and
capricious in violation of APA § 706(2)(A). American
Federation of Government Employees, Local 2761 v. FLRA, 866
F.2d 1443, 1446 (D.C. Cir. 1989). The Authority’s failure to
follow its own well-established precedent without explanation
is the very essence of arbitrariness. Therefore, we must set aside
its determination that the proposal did not constitute an
appropriate arrangement and return the question to the Authority
for further proceedings consistent with this opinion and
Authority precedent.
Under KANG, the Authority must conduct a so-called
“excessively interferes with” inquiry “by weighing the practical
needs of the employees and managers.” 21 F.L.R.A. at 31-32.
It did not do so on the present record. The Authority’s path to
error was set when it erroneously found that “the agency has
exercised its right to determine its internal security by having
employees who are trained and qualified to carry firearms
maintain possession and access to their weapons when off duty.”
59 F.L.R.A. at 754. That finding was crucial to the Authority’s
conclusion that the proposal “would operate so as to completely
preclude the agency from exercising that right.” In fact, the
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record did not support the Authority’s description of the
agency’s security policy. On the record, the agency apparently,
in many locations, permitted on-site storage of firearms of off-
duty officers, and, indeed, provided facilities for such storage.
We are not suggesting that the Authority must rule that the
agency must make such arrangements in all locations, but only
that the Authority must consider the evidence in the record
before it, conduct the balanced inquiry required by the KANG
line of precedent, and then reach its conclusion as to whether the
proposal “excessively interferes” with the agency’s internal
security practices.
On the record before it and this Court, the Authority has not
established that the proposal would “negate and nullify” the
agency’s right to implement the practice it followed at the time
the Union made the proposal. The most the proposal would
require is the institution at other facilities of a method of
carrying out agency internal security policies already in place at
some locations. Whether this constitutes an appropriate
arrangement is a question for the Authority to answer in the first
instance, but it must do so on findings based on the record
before it, and by a process consistent with its own precedent.
III. Conclusion
For the reasons set forth above, we hold that the petition for
review is allowed. The Authority’s order is vacated and
remanded for further proceedings consistent with this opinion.
ROBERTS, Circuit Judge, concurring: I agree with the court
that the Authority was not arbitrary and capricious in determin-
ing that the Union’s proposal implicated management’s right to
determine internal security practices, 5 U.S.C. § 7106(a)(1), and
was not a negotiable “procedure,” id. at § 7106(b)(2). The court
goes on to fault the Authority for finding that the proposal was
not an “appropriate arrangement,” id. at § 7106(b)(3), because
the Authority considered that question in light of the incorrect
premise that agency policy required all employees to take their
weapons home when off-duty.
The court is correct that this is not the agency policy, but it
is arguable that the Authority appreciated this fact. See, e.g., 59
F.L.R.A. at 753 (“The Agency has determined . . . that by not
allowing storage during off-duty periods at those facilities which
lack adequate security, it is reducing the risk of theft and
furthering its asserted internal security practice determina-
tions.”) (emphasis added); id. at 755 (concluding that the
Union’s proposal “effectively overrid[es] the Agency’s internal
security determination regarding those employees working at
facilities and locations ill-equipped and unsuitable for off-duty
storage of firearms”) (emphasis added). At the same time, it is
difficult to fault the court’s reading, given that the agency itself
told the Authority below that agency “policy and practice . . .
never authorized routine overnight storage of issued firearms in
employees’ work locations.” Agency Statement of Position at 4.
Given all this, it is reasonable to read the Authority’s
analysis as the court does, and to find that analysis wanting. On
remand, the Authority must consider whether the Union’s
proposal is an “appropriate arrangement” in light of a correct
view of the agency’s policy. I join the court’s opinion on the
understanding that nothing in it precludes the Authority from
concluding on remand that the proposal to provide “a lockbox
or other secure and locked container” for overnight storage of
firearms “at all government offices where armed employees
work or are assigned,” 59 F.L.R.A. at 749 (emphasis added),
completely overrides or excessively interferes with a policy of
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allowing overnight storage only when the agency determines
security at a particular location is adequate. Cf. id. at 755 n.5
(“The fact that the Agency provides overnight storage at some
locations also constitutes a determination by management that
security at those locations is safe and effective — itself an
exercise of the right to determine internal security practices.”).