Petitions for review of a decision of the Board of Directors
of the Office of Compliance in No. 16-LMR-01 (CA).
Rafique Omar Anderson, 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 Jenkins, Congressional Office of Compliance,
Kathleen Mechak, Woodley & McGillivary LLP, Washington,
DC, argued for intervenor.
Newman, Lourie, and Clevenger, Circuit Judges.
CLEVENGER, CIRCUIT JUDGE
September 26, 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 engage in
arbitration of an unresolved grievance. U.S. Capitol
Police and Fraternal Order of Police, D.C. Lodge No. 1 U.S.
Capitol Police Labor Comm., No. 16-LMR-01, 2017 WL
4335144 (C.A.O.C. Sept. 26, 2017). The Police petitions for
review of that decision and the Office of Compliance
("OOC") cross-applies for enforcement of the
Board's decision and remedial order. For the reasons set
forth below, we deny the Police's petition and grant the
Donaldson, a former officer with the Police, was involved in
an off-duty domestic incident. The Police's Office of
Professional Responsibility investigated the incident and
ultimately recommended that he be terminated. The
Disciplinary Review Board then heard the matter and, although
it agreed that Officer Donaldson should be punished, it
recommended only a forty-five day unpaid suspension. The
Chief of Police reviewed the evidence and recommendations and
decided to terminate Officer Donaldson. After thirty days
passed from the date of the Chief's decision without
intervention by the Capitol Police Board, the Chief's
decision took effect and Officer Donaldson was terminated.
See 2 U.S.C. § 1907(e)(1)(B) (stating that the
Board is deemed to have approved a termination decision made
by the Chief of Police if it does not disapprove of that
decision within thirty days).
Fraternal Order of Police, District of Columbia Lodge No. 1,
U.S. Capitol Police Labor Committee ("Union") and
the Police are parties to a collective bargaining agreement.
Under the terms of that agreement, termination decisions by
the Chief are subject to binding arbitration. The Union
requested an arbitration panel to review the termination
decision. The Police refused to select an arbitrator because
it took the legal position that termination actions are not
subject to arbitration and thus it "would be in
violation of a determination of the Capitol Police Board and
its distinct statutory authority by consenting to the
jurisdiction of any arbitrator" in this case. J.A. 102.
Union then protested to the General Counsel for the OOC that
the Police violated § 220(c)(2) of the Congressional
Accountability Act of 1995 ("CAA"), codified at 2
U.S.C. §§ 1301-1438,  by refusing to arbitrate an
unresolved grievance and therefore committed an unfair labor
practice. The General Counsel investigated the charges,
determined that there was sufficient evidence and cause to
support them, and filed a complaint with the OOC alleging an
unfair labor practice.
hearing officer considered cross-motions for summary judgment
on the unfair labor practice charge and granted judgment in
favor of the OOC. The Police petitioned the Board to review
the hearing officer's decision, and the Board affirmed.
The Board reasoned that the Police is obligated to arbitrate
disputes arising under its collective bargaining agreement,
unless it can point to clearly established law that removes
the dispute in question from arbitration, and that without
such a clearly established law excuse for refusal to
arbitrate, the refusal is an unfair labor practice. The
Police asserted that the CAA should be interpreted to bar
arbitration of employee termination. The best the Police
could do to demonstrate clearly established law that
termination decisions are not arbitrable was a set of
arguments it made on how it thought provisions of the CAA
should be interpreted. Because the Police's legal arguments
fell well short of being clearly established law, the Board
rejected the Police's excuse and held that the Police
committed an unfair labor practice by refusing to engage in
appeal followed. We have jurisdiction over the Police's
petition under 2 U.S.C. § 1407(a)(1)(D) and over the
OOC's application for ...