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United States Capitol Police v. Office of Compliance

United States Court of Appeals, Federal Circuit

January 8, 2018

UNITED STATES CAPITOL POLICE, Petitioner
v.
OFFICE OF COMPLIANCE, Respondent FRATERNAL ORDER OF POLICE, U.S. CAPITOL POLICE LABOR COMMITTEE, Intervenor OFFICE OF COMPLIANCE, Petitioner FRATERNAL ORDER OF POLICE, U.S. CAPITOL POLICE LABOR COMMITTEE, Intervenor
v.
UNITED STATES CAPITOL POLICE, Respondent

         Petitions for review of a decision of the Board of Directors of the Office of Compliance in No. 15-LMR-01 (CA).

          Kelly Marissa Scindian, Office of Employment Counsel, United States Capitol Police, Washington, DC, argued for United States Capitol Police. Also represented by Rafique Omar Anderson, Frederick M. Herrera.

          John Uelmen, Office of the General Counsel, United States Office of Compliance, Washington, DC, argued for the Office of Compliance. Also represented by Hillary Benson, Julia Akins Clark.

          Sara L. Faulman, Woodley & McGillivary LLP, Washington, DC, argued for intervenor. Also represented by Megan Kathleen Mechak.

          Before Newman, Clevenger, and Chen, Circuit Judges.

          CHEN, CIRCUIT JUDGE

         The United States Capitol Police (USCP) petitions for review of the decision of the Board of Directors of the Office of Compliance (Board) affirming the Hearing Officer's finding that the USCP engaged in unfair labor practices when it issued Officer James Konczos a Command Discipline Warning in response to Officer Konczos's protected union activity. "Protected activity" refers to the right to "form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal." 5 U.S.C. § 7102. Here, the Hearing Officer found that Officer Konczos was disciplined for expressing dissatisfaction with the USCP's unscheduled shift, emergency holdover, policy. For its part, the Office of Compliance (OOC) seeks an order from this court enforcing the Hearing Officer's Order. This Order requires the USCP to cease and desist from violating the Congressional Accountability Act (CAA); expunge the discipline issued to Officer Konczos from its records; post a notice to employees informing them that the USCP has engaged in unfair labor practices; and certify its compliance with the Order. Because substantial evidence shows that Officer Konczos was disciplined for engaging in protected union activity, we affirm the Board's decision. Because the OOC's cross appeal does not enlarge the scope of the judgment, it is unnecessary for us to reach the cross appeal.

         Background

         A. Emergency Holdover Shift

         This appeal stems from a dispute over the USCP's practice of requiring officers to work a double-shift when the need arises, sometimes informing an officer about the extra shift only at the last minute. The Collective Bargaining Agreement (CBA) negotiated between the Fraternal Order of Police (FOP), U.S. Capitol Police Labor Committee, and the USCP defines "unscheduled additional duty, " also known as an emergency holdover, as a manpower need that arises during the current tour of duty. When an emergency manpower need arises, the CBA permits the USCP to require officers on the current tour to be held over to fill posts on a subsequent tour. This is what happened to Officer Konczos who was told near the end of his 11:00 p.m. to 7:00 a.m. shift that he would need to stay on to work the 7:00 a.m. to 3:00 p.m. shift.

         At approximately 5:50 a.m. on June 26, 2014, Sergeant James Floyd telephoned Sergeant Danny McElroy informing him that he needed two officers to be held over from the Capitol Visitor Center (CVC) 11:00 p.m. To 7:00 a.m. Section C-1 shift to work the 7:00 a.m. to 3:00 p.m. CVC C-2 shift.[1]

         At 6:10 a.m., Sergeant McElroy contacted Officer Konczos, who was working his regular 11:00 p.m. to 7:00 a.m. C-1 shift in the House Intelligence Area, to notify Officer Konczos that he had been drafted to cover the 7:00 a.m. to 3:00 p.m. C-2 shift at the North Screening Door of the CVC. Officer Konczos responded that he could not work the shift because he needed to take his car for service in time to report to his regularly scheduled shift at 11:00 p.m. Sergeant McElroy informed Officer Konczos that this did not excuse him from working the additional shift, but that he could "1301 it away." The term "1301" refers to Article 18, Section 18.03 of the CBA between the USCP and the FOP. By completing a CP-1301 form, an officer can obtain a qualified substitute to work an additional shift in his or her place. However, a 1301, by its express terms, applies when an officer has more than 24 hours prior to the beginning of the additional, scheduled shift to obtain a qualified substitute. J.A. 768-80 (Standard Operating Procedure COP-USB-003).

         At 6:30 a.m., shortly after the phone call between Sergeant McElroy and Officer Konczos, Officer Carlos Ford- a USCP Officer who assists other officers in finding qualified substitutes-called Officer Konczos to inform him that Officer Albert Law had agreed to work the C-2 shift. Officer Law then sent a text message to Officer Konczos to complete a CP-1301 form. Officer Konczos replied via text, "you can if you want, I'm not staying." Officer Law also called Sergeant Floyd, the supervisor for the C-2 holdover shift, to inform him that he (Law) would be working the holdover shift in place of Officer Konczos. An email from Lieutenant Kathleen McBride sent at 7:44 a.m. confirmed that Sergeant Floyd was aware of the substitution.

         At 6:44 a.m., Officer Konczos emailed USCP Police Chief Kim Dine with the subject line "Unscheduled drafts." J.A. 630. The email reminded Chief Dine that Officer Konczos, as Chairman of the FOP, had previously raised the issue of emergency holdovers with him numerous times at regularly scheduled labor-management relations meetings without a satisfactory solution:

In numerous emails and face to face meetings we have addressed this issue [unscheduled drafts] with you. . . . As I explained to you before, the unscheduled drafts do nothing but disrupt officers['] lives, this happens just about every day, every section, every division. How fair do you think it is for an officer to be told at the last minute that they are drafted . . . for 8 hours?? Please don't tell me you are looking into manpower numbers, we have heard that for months.

Id. Officer Konczos then referred to his own situation that morning, when he was drafted with little advanced notice for a holdover shift. Id. And he criticized the disruptive nature of emergency holdovers on officers' lives. Id. Officer Konczos ended his email: "I fully expect to be suspended at 7:00 a.m., but I'm to the point I honestly don't care." J.A. 630-31. At 7:15 a.m., Officer Konczos was relieved ...


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