United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 3, 2020 Decided June 9, 2020 No. 19-1069 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1929, PETITIONER v. FEDERAL LABOR RELATIONS AUTHORITY, RESPONDENT 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 HENDERSON. 2 KAREN LECRAFT HENDERSON, Circuit Judge: The Federal Service Labor-Management Relations Statute (FSLMRS or Statute), 5 U.S.C. §§ 7101 et seq., requires federal agencies to notify and negotiate with unions before changing federal employees’ conditions of employment. The U.S. Customs and Border Protection (CBP) distributed a memorandum (Memo) to its agents changing vehicle inspection procedures at the El Paso border checkpoint. The American Federation of Government Employees, Local 1929, AFL-CIO (AFGE or Union) filed a grievance on behalf of the CBP agents claiming that the CBP failed to notify and negotiate with it before issuing the Memo. After an arbitrator found in favor of the AFGE, the Federal Labor Relations Authority (Authority) set aside the arbitrator’s award, concluding that the Memo did not constitute a change over which the CBP must bargain. Because the Authority failed to reasonably explain its departure from precedent and its conclusion that the Memo was not subject to bargaining under the Statute, we grant the Union’s petition, concluding that the Authority’s order was arbitrary and capricious and remanding to the Authority for further proceedings consistent with this opinion. I. BACKGROUND The FSLMRS “requires a federal agency to negotiate in good faith with the chosen representative of employees covered by the Statute, 5 U.S.C. § 7114(a)(4), and makes it an unfair labor practice to refuse to do so, § 7116(a)(5).” Fort Stewart Sch. v. FLRA, 495 U.S. 641, 644 (1990). “The scope of the negotiating obligation is set forth in § 7102, which confers upon covered employees the right, through their chosen representative, ‘to engage in collective bargaining with respect to conditions of employment.’” Id. (quoting 5 U.S.C. § 7102(2)). “It is well established that before changing conditions of employment, an agency must provide the union 3 with notice and an opportunity to bargain over those aspects of the change that are within the duty to bargain.” U.S. Dep’t of Homeland Sec. U.S. Citizenship & Immigration Servs., 69 F.L.R.A. 512, 515 (2016). 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 ...
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