U.S. Dept. of Justice, Federal Bureau of Prisons Federal Correctional Complex Coleman v. FLRA ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2017 November 17, 2017
No. 16-1301
UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL BUREAU
OF PRISONS FEDERAL CORRECTIONAL COMPLEX COLEMAN,
FLORIDA,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of a Final Decision
of the Federal Labor Relations Authority
Tyce R. Walters, Attorney, U.S. Department of Justice,
argued the cause for petitioner. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General at the time the brief was filed, and Thomas H. Byron,
III, Attorney.
Fred B. Jacob, Solicitor, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief were Zachary R. Henige, Deputy Solicitor, and Stephanie
J. Fouse, Attorney.
Before: GRIFFITH and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: This case involves the
“covered-by” doctrine, which embraces a well-established
principle in labor law: If a union and an employer in a
collective-bargaining relationship reach an agreement on a
subject during contract negotiations, neither side has a duty to
bargain any further over that subject once the parties execute a
collective bargaining agreement. See, e.g., Fed. Bureau of
Prisons v. FLRA (BOP I), 654 F.3d 91, 94 (D.C. Cir. 2011);
Enloe Med. Ctr. v. NLRB, 433 F.3d 834, 838–39 (D.C. Cir.
2005). “For a subject to be deemed covered, there need not be
an ‘exact congruence’ between the matter in dispute and a
provision of the agreement, so long as the agreement expressly
or implicitly indicates the parties reached a negotiated
agreement on the subject.” BOP I, 654 F.3d at 94–95 (citation
omitted). It does not matter whether a subject was specifically
discussed or contemplated during the negotiations leading to
the parties’ agreement. Dep’t of the Navy v. FLRA, 962 F.2d
48, 58–59 (D.C. Cir. 1992). What matters is whether a subject
is within the compass of the provisions in the parties’
agreement. BOP I, 654 F.3d at 94–95. The covered-by doctrine
is analytically distinct from waiver. A waiver occurs when a
party knowingly and voluntarily relinquishes its right to
bargain over a subject; when a disputed subject is covered by
the parties’ agreement, however, the parties have exercised
their rights to bargain over that subject. Enloe Med. Ctr., 433
F.3d at 837–39.
The issue in this case is whether the provisions in the
Master Agreement between the Federal Bureau of Prisons,
Federal Correctional Complex, Coleman, Florida (“Agency”)
and the American Federation of Government Employees
3
(“Union”) cover a matter with respect to which the parties had
a dispute after the Master Agreement was signed. After the
parties’ collective bargaining contract took effect, the Agency
notified the Union that it intended to consolidate the relief
rosters at the four institutions in the prison complex and assign
employees from one institution to relieve employees at the
other institutions. The parties bargained intermittently over the
matter until the Agency finally ended bargaining. Local 506 of
the Union filed a charge with the Federal Labor Relations
Authority (“FLRA” or “Authority”) claiming that the Agency
had committed an unfair labor practice, in violation of §§
7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (“Statute”), 5 U.S.C. §§ 7101–7135 (2012),
when it refused to bargain with the Union over an alleged mid-
contract change to the Master Agreement.
The Agency’s position before the Authority was that it had
no duty to bargain because consolidated relief rosters were
covered by Article 18 of the parties’ Master Agreement, which
established procedures for assigning employees to the sick and
annual relief rosters. The Authority rejected the Agency’s
position, holding instead that the Master Agreement gave no
indication that the parties meant to foreclose bargaining over
inter-institutional assignments. U.S. Dep’t of Justice, Fed.
Bureau of Prisons, Fed. Corr. Complex and Am. Fed’n of Gov’t
Emps., Local 506, 69 F.L.R.A. 447, 449 (2016). The agency
now petitions this court for review.
In its petition to this court, the Agency argues that the
court’s decision in BOP I, 654 F.3d 91 (D.C. Cir. 2011), is
controlling. In BOP I, we held that “Article 18 covers and
preempts challenges to all specific outcomes of the assignment
process.” 654 F.3d at 96. This holding is directly contrary to
the Authority’s position in this case. The Authority argues that
BOP I can be distinguished because, in this case, the parties’
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bargaining history indicates that they did not contemplate
consolidated relief rosters when they negotiated the Master
Agreement and, in addition, they negotiated over the issue
pursuant to a Settlement Agreement executed in 2010. The
Authority’s arguments are unpersuasive.
As BOP I makes clear:
Because the parties reached an agreement about how
and when management would exercise its right to
assign work, the implementation of those procedures,
and the resulting impact, do not give rise to a further
duty to bargain. Article 18 therefore covers and
preempts challenges to all specific outcomes of the
assignment process.
654 F.3d at 96. The Authority’s decision in this case cannot be
squared with this holding. It does not matter that the parties did
not specifically contemplate consolidated relief rosters when
they negotiated the Master Agreement. What matters is that
consolidated relief rosters are clearly within the compass of
Article 18. And it does not matter that the parties negotiated for
a time over the issue after the Master Agreement was executed.
Nor does it matter that the Agency agreed to additional
negotiations pursuant to the Settlement Agreement. The
Agency entered into the Settlement Agreement voluntarily, and
made no concession that Article 18 does not cover the subjects
about which it agreed to negotiate.
We hold, in accord with BOP I, that the subject of
consolidated relief rosters is covered by Article 18 of the
Master Agreement. We therefore grant the petition for review
and reverse the decision of the Authority.
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I. BACKGROUND
The Agency operates FCC Coleman, a prison complex
consisting of four institutions. The Agency and Union finalized
the Master Agreement in 1998. Article 18 of the agreement,
titled “Hours of Work,” provided procedures for assigning
correctional officers to quarterly work schedules. J.A. 79–86.
Article 18(g) provided procedures for assigning those officers
to sick and annual relief duty, which entailed covering for
colleagues out on sick and annual leave. In 2009, the Agency
notified the Union that, rather than continuing to have each
institution in the complex handle its particular sick and annual
leave-covering assignments from its own roster (as was the
practice at the time), the Agency would consolidate the sick
and annual relief rosters for all of FCC Coleman’s institutions
into one complex-wide roster (“consolidated relief roster”).
This would entail assigning officers on that roster to any of
FCC Coleman’s four institutions (“inter-institutional
assignment”), though they would be first used at their home
institution if possible.
The parties negotiated over the consolidated relief roster
for a time. After several months, the Agency terminated
negotiations and the Union responded by filing an unfair labor
practice charge. In 2010, the parties reached a settlement
agreement pursuant to which the Agency agreed to bargain
over “appropriate arrangements for employees affected by” the
new policy. U.S. Dep’t of Justice, 69 F.L.R.A. at 459; see also
Supplemental Appendix 104–05. The Settlement Agreement
made it clear, however, that the parties’ “failure to comply with
the terms and provisions of the agreement [would] result in the
[unfair labor practice] Complaint(s) being reinstated.” Suppl.
App. 104. In other words, the Settlement Agreement did not
bind the Agency to bargain to agreement or to impasse. Rather,
it merely said that the unfair labor practice complaint against
6
the Agency would be reinstated if settlement negotiations
failed.
After the Agency and the Union resumed negotiations, this
court decided BOP I, which examined the scope of Article
18(d)’s provisions regarding bidding for quarterly rosters. 654
F.3d at 93. Like this case, BOP I arose from a union challenge
to an Agency decision concerning relief rosters. Id. The
Agency, facing a reduced budget, ordered that regular quarterly
rosters would henceforth include only “mission critical” jobs.
Id. Many jobs formerly assigned as quarterly roster posts were
instead deemed “tasks” for officers on the relief roster,
reducing Agency reliance on regular staff working overtime.
Id. The union requested bargaining but the Agency refused,
arguing that the “mission critical” standard was covered by
Article 18. Id. The Authority sided with the union, concluding
that Article 18 addressed only “procedures for filling specific
positions” and not substantive matters such as “the impact . . .
of eliminating certain positions.” Id. at 94 (alteration in
original) (internal quotation marks omitted). This Court
disagreed.
The decision in BOP I plainly rejected the Authority’s
construction of Article 18 as limited to certain “types” of
rosters. Rather, the court concluded that the parties to Article
18(d) and (g) had agreed on “the procedures by which a warden
formulates a roster, assigns officers to posts, and designates
officers for the relief shift,” id. at 95, and, accordingly, “the
implementation of those procedures, and the resulting impact,
do not give rise to a further duty to bargain,” id. at 96; see also
id. (holding that “Article 18 therefore covers and preempts
challenges to all specific outcomes of the assignment
process”).
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More than a year after the decision in BOP I was issued,
the Agency ended negotiations relating to inter-institutional
assignment, asserting that BOP I established it had no duty to
bargain over that issue. In response, the Union pursued the
unfair labor practice charge at issue here. After an Authority
regional director investigated and issued a complaint asserting
that the Agency had engaged in an unfair labor practice, an
administrative law judge (“ALJ”) reviewed the charge and
agreed with the complaint. The Agency filed exceptions to the
ALJ’s decision, and the Authority affirmed in a split decision.
The Agency now petitions for review and reversal of the
Authority’s decision.
II. ANALYSIS
A. Standard of Review
This Court will set aside an order of the Authority if it is
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. BOP I, 654 F.3d at 94 (quoting Nat’l
Treasury Emps. Union v. FLRA, 452 F.3d 793, 796 (D.C. Cir.
2006)); see also 5 U.S.C. § 7123(c) (2012). “[W]hether a
subject is ‘covered by’ an existing agreement is a question of
law.” Nat’l Treasury Emps. Union, 452 F.3d at 797.
B. Mootness
At oral argument, Agency counsel advised the court for the
first time that the parties had executed a new Master Agreement
in 2014. Oral Arg. Recording at 37:20–37:53. The court then
ordered the parties to submit briefs addressing whether the
execution of the new 2014 Master Agreement rendered all or
any part of this case moot.
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The Authority Order under review requires the Agency to
(1) cease and desist from failing and refusing to bargain in good
faith with the Union regarding the assignment of employees on
the sick and annual relief roster of one institution to another;
(2) bargain in good faith with the Union regarding such
assignment of employees; and (3) post a notice declaring the
Agency’s culpability and pledging future compliance. In light
of this disputed Order, we find that the case is not moot.
An order requiring an offending employer to post a notice
typically “establishes that a live controversy still exists
between the parties and that [the] case is therefore not moot.”
Am. Fed’n of Gov’t Emps., Local 3090 v. FLRA, 777 F.2d 751,
753 n.13 (D.C. Cir. 1985). Remedial orders “need not be
concerned solely with the isolated incident that precipitated an
unfair labor practice charge. Rather, the NLRB and the FLRA
have an obligation to protect the continuing right of employees
to engage in concerted activity.” FLRA v. U.S. Dep’t of the Air
Force, 735 F.2d 1513, 1517 n.8 (D.C. Cir. 1984); see also
NLRB v. Hiney Printing Co., 733 F.2d 1170, 1171 (6th Cir.
1984) (per curiam) (“[T]he posting of notices serves two
purposes: advising the employees that the NLRB has protected
their rights, and preventing or deterring future violations.”).
If, in resolving this petition for review, we were to hold
that the Agency violated the Statute during the lifespan of the
expired Master Agreement, then the Authority’s Order
directing the Agency to post a notice of that violation would
remain an appropriate form of relief for the Union. Our holding
to the contrary secures for the Agency a reversal of the
Authority’s Order. Either way, a judicial disposition of this
case will resolve a concrete dispute between the parties and
afford meaningful relief to the prevailing party. Therefore, the
case is not moot with respect to posted notice.
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The same analysis applies with respect to the Authority’s
cease and desist order. It does not matter that the old Master
Agreement has expired. In NLRB v. Mexia Textile Mills, Inc.,
339 U.S. 563, 567 (1950), the Supreme Court made it clear that,
under the National Labor Relations Act, an “employer’s
compliance with [a cease and desist] order of the [NLRB] does
not render the cause moot, depriving the Board of its
opportunity to secure enforcement from an appropriate court.”
The same principle controls cases arising under the Statute. We
confirmed this point in Department of the Air Force. The court
noted that “[t]he rationale for [Mexia’s] rule is that cease and
desist orders generally impose on employers a continuing
obligation to refrain from violations of employees’ rights. An
enforcement decree ensures against future resumption of the
unfair labor practice.” 735 F.2d at 1516.
Because our disposition of this case will resolve a present,
live controversy between the parties, the case is not moot. See
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 189–91 (2000).
C. The “Covered-By” Doctrine
The issue on the merits is whether the Authority
misapplied the law in concluding that the subject of
consolidated relief rosters was not covered by the Master
Agreement and, therefore, that the Agency was obliged to
bargain in good faith with the Union before implementing a
new policy covering inter-institutional assignments. We
reverse the decision of the Authority because it is directly at
odds with this court’s decision in BOP I and, thus, not in
accordance with law.
The Authority concluded that the Master Agreement did
not cover consolidated relief rosters for two reasons: (1) the
10
Agency and Union did not “contemplate” such rosters when
bargaining over the Master Agreement and did not “intend[] to
foreclose bargaining over inter-institutional assignments,” and
(2) the Settlement Agreement between the Agency and Union
specifically provided for bargaining over such rosters. U.S.
Dep’t of Justice, 69 F.L.R.A. at 449–50. We find no merit in
these conclusions.
1. The Relevance of What the Agency and Union
Contemplated When They Executed Their Master
Agreement
The Authority has acknowledged that “[a]pplication of the
‘covered by’ doctrine is an exercise in construction; it requires
the adjudicator of a dispute over the meaning of a collective
bargaining agreement to determine how broadly or narrowly
the agreement should be read in view of the policies embodied
in the [S]tatute.” Nat’l Treasury Emps. Union, 452 F.3d at 797.
It is therefore
analogous to the inquiry we make in order to
determine whether a federal statute impliedly
preempts related state law; rather than focusing only
upon the meaning of a particular word or words in
search of congressional intent, as we might in a case
of statutory interpretation, “the entire scheme of the
statute must . . . be considered.”
Id. (alteration in original) (citation omitted) (quoting Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000))
(contrasting “construction” and “interpretation”).
Application of the covered-by doctrine does not rise or fall
with reference to precise scenarios that the parties may or may
not have envisioned when they executed their Master
11
Agreement. Such an approach would rest on a simplistic and
naïve view of collective bargaining and of the purposes of the
Statute. The Statute not only fosters good-faith bargaining
between parties, it also seeks to ensure repose and stability in
bargaining relationships. See IRS v. FLRA, 963 F.2d 429, 440
(D.C. Cir. 1992). If the obligation to bargain could be imposed
whenever a party insisted upon reopening bargaining because
it did not understand the full reach of the parties’ agreement
when it was executed, this would wreak havoc in bargaining
relationships. “The [complaining party] would almost
invariably prevail in duty to bargain cases, because it almost
always could find some ambiguity in the relevant contractual
language. The result would be an endless duty to bargain on the
part of the [parties], with a resultant evisceration of the
[Statute’s] policies of contractual stability and repose.” Id.
The Authority’s decision says that “the [Agency] has
failed to establish that the parties, at either the national or local
level, intended to foreclose bargaining over inter-institutional
assignments.” U.S. Dep’t of Justice, 69 F.L.R.A. at 449. This
seems to suggest that the crucial question is whether a party
contemplated every scenario that might arise under the terms
of the Master Agreement. This makes no sense because it
would effectively eviscerate the covered-by doctrine. What
matters is whether a reasonable construction of the agreement
indicates that the disputed subject is within the compass of the
agreement. “For a subject to be deemed covered, there need not
be an ‘exact congruence’ between the matter in dispute and a
provision of the agreement, so long as the agreement expressly
or implicitly indicates the parties reached a negotiated
agreement on the subject.” BOP I, 654 F.3d at 94–95.
The parties’ intent may be relevant as an indicator of the
scope of an agreement. This is very different, however, from
determining whether the parties intended particular outcomes
12
in the application and enforcement of their agreement. The
Authority’s position confuses issues of contract
“interpretation” with issues of contract “construction.”
“Application of the ‘covered by’ doctrine is an exercise in
construction.” Nat’l Treasury Emps. Union, 452 F.3d at 797.
“‘[C]onstruction’ ‘determines [the] legal operation’ of
agreement; ‘interpretation’ of agreement resolves any
ambiguity in terms used.” Id. (alteration in original) (quoting
Garden State Tanning, Inc. v. Mitchell Mfg. Group, Inc., 273
F.3d 332, 335 (3d Cir. 2001)).
As noted above, construing collective bargaining
agreements as covering only those outcomes the parties
concretely foresaw would make extensive future bargaining
inevitable, removing the parties’ incentive to try to
comprehensively bargain in the first place. Promotion of
contractual repose is needed to avoid “discourag[ing] [parties]
from engaging in the effort, as part of negotiation of their basic
collective bargaining agreement, to foresee potential labor-
management relations issues, and resolve those issues in as
comprehensive a manner as practicable.” Dep’t of the Navy,
962 F.2d at 59 (alterations in original) (quoting IRS and Nat’l
Treasury Emps. Union, 17 F.L.R.A. 731, 736 (1985)). We have
therefore consistently held that whether the parties intended a
particular outcome does not resolve the “covered-by” analysis.
Instead, what matters is whether the policy falls within the
scope of the collective bargaining agreement in light of the
Statute’s policy of encouraging such agreements by fostering
their stability and repose.
To that end, the scope of what is covered must be
construed to give the parties the benefit of their bargain. And if
the parties’ bargain encompasses the implementation of a new
policy, then the new policy is deemed covered by the
agreement. Department of the Navy, BOP I, and National
13
Treasury Employees Union all illustrate this principle. In
Department of the Navy, a dispute arose over whether the
Marine Corps’ temporary assignment (“detailing”) of four
employees was covered by a Master Labor Agreement
(“MLA”) that set forth procedures for detailing employees. 962
F.2d at 51. The Authority held that the particular detailing of
those employees was not covered because the MLA “did not
contain the whole ‘universe’ of possible conditions that might
pertain to the impact and implementation of employee details”
and “did not ‘even attempt to deal with the impact and
implementation of specific individual details.’” Id. at 58
(quoting Dep’t of the Navy, Marine Corps Logistics Base and
Am. Fed’n of Gov’t Emps., 39 F.L.R.A. 1060, 1069 (1991));
see also id. at 52 (“[T]he Authority held that the MLA did not
‘specifically address’ the ‘particular subject matter’ of the
union’s bargaining request—i.e., the impact of the ‘detail’ on
the four affected employees—because the Agreement did not
contain provisions regarding the ‘implementation of individual
details on the local level.’” (quoting Dep’t of the Navy, Marine
Corps Logistics Base, 39 F.L.R.A. at 1067)).
On the agency’s petition for review, we rejected the
Authority’s use of a “covered-by” standard that compelled
bargaining “unless the collective bargaining agreement
specifically addresses the precise matter at issue,” 962 F.2d at
57, because “it would have required near-supernatural
prescience for the parties to have foreseen, at the time of
drafting the MLA, what implementation issues would arise
with respect to ‘specific individual details’ that had not even
been conceived, much less implemented, at the time,” id. at 59.
Such an approach would undermine the Statute’s goal of
“promot[ing] collective bargaining and the negotiation of
collective bargaining agreements,” as collective bargaining is
encouraged if and only if the parties to such agreements can
rely on “stability and repose with respect to matters reduced to
14
writing in the agreement.” Id. If the parties cannot rely on those
agreements applying to prospective matters not specifically
foreseen but falling within the agreement’s scope, they will get
mired in “essentially endless bargaining” as each new specific
outcome arises. Id.; see also id. (“[T]he Authority’s counsel
candidly admitted that he could think of no circumstance in
which the Marine Corps could ‘detail’ an employee without
being required to bargain.”). The Authority’s approach
deprived the agency of “the benefit of its bargain” with the
union by forcing it to “bargain anew regarding the same matters
already addressed in the agreement.” Id. at 60.
BOP I applied the principles enunciated in Department of
the Navy to the same article of the Master Agreement that is at
issue here. There, the Authority concluded that, although the
Agency had not been accused of violating the Article 18(d)
procedures for formulating the rosters that implemented the
“mission critical standard,” the standard was not covered by
Article 18(d) because the article addressed only procedure, and
did not “address[] the impact . . . of eliminating certain
positions.” BOP I, 654 F.3d at 94 (alterations in original). We
rejected that conclusion, noting that “[t]he Authority erred
insofar as it held negotiated procedures such as those in Article
18 cannot cover decisions about substance. In fact that is
exactly what § 7106 of the Statute contemplates.” Id. at 96
(citing Dep’t of the Navy, 962 F.2d at 50, 61–62). Indeed,
“[b]ecause the parties reached an agreement about how and
when management would exercise its right to assign work, the
implementation of those procedures, and the resulting impact,
do not give rise to a further duty to bargain. Article 18 therefore
covers and preempts challenges to all specific outcomes of the
assignment process.” Id.
We observed in BOP I that “[p]erhaps the best evidence
Article 18 covers the mission critical standard” was the
15
testimony of the union’s lead negotiator that Article 18
“place[d] procedural checks upon the Bureau’s authority to
assign work, including the advance publication of available
posts, the solicitation of bids, and a limited right to appeal an
assignment.” Id. This confirmed that the argument over “how
and when management would exercise its right to assign work”
– which the parties resolved through the compromise language
of Article 18 – was the impact and implementation bargaining
the union was owed. Id. The same is true here: The Union could
have negotiated for an Article 18 provision that contained a
caveat that assignments changing an officer’s duty station to a
different institution in FCC Coleman would not comply with
the article; it did not.
In National Treasury Employees Union, the collective
bargaining agreement at issue provided that the Internal
Revenue Service (“IRS”) would resolve conflicts over requests
to schedule annual leave based on employee seniority. 452 F.3d
at 794–95. The union proposed a new policy permitting
employees to “swap” leave, but the IRS refused, contending
that the existing collective bargaining agreement covered the
matter. Id. at 795. An arbitrator concluded that the bargaining
agreement did not cover leave-swapping because it “only
govern[ed] how the agency will initially assign annual leave”
and did not “speak to the situation in which an employee
chooses not to use approved leave.” Id. (internal quotation
marks omitted). The IRS appealed to the Authority, which held
that the arbitrator erred. Under the union’s approach, “an
employee with leave approved on the basis of his seniority
could trade that leave to an employee other than the next most
senior employee who had requested, but was denied, leave for
that same period,” which the Authority realized would
circumvent the seniority system. Id. at 797. Because the
collective bargaining agreement “had established seniority as
the sole criterion upon which employees would qualify for
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leave,” the Authority deemed the proposed leave-swapping
policy covered by that agreement, a conclusion this court called
“eminently reasonable.” Id. at 798.
Like the detail assignments in Department of the Navy, and
the rosters formulated using the “mission critical” standard in
BOP I, the consolidated relief rosters in this case are outcomes
not necessarily intended at the time when the parties negotiated
their Master Agreement. Nevertheless, consolidated relief
rosters are clearly within the scope of the assignment
procedures covered by Article 18. Like the leave provision in
National Treasury Employees Union, Article 18(g) is the last
word on the subject it addresses (relief rosters), and cannot be
circumvented merely because one of the bargaining parties did
not anticipate a policy it might produce. Where the Authority
erred in BOP I, and here, was in concluding that negotiation of
the procedures for assigning work does not cover all
assignments devised in compliance with those procedures.
2. The Settlement Agreement
The Authority’s decision also relied on the 2010
Settlement Agreement, pursuant to which the parties held
multiple negotiation sessions between February 3 and June 17,
2011, meeting again on December 1, 2011 and May 29, 2012,
finally ending in August 2012, over a year after BOP I issued.
The Authority’s decision states that it had previously “declined
to find a matter covered by a collective-bargaining agreement
where the agreement specifically contemplates bargaining to
resolve the matter.” U.S. Dep’t of Justice, 69 F.L.R.A. at 450.
The Authority erroneously relied on cases in which collective
bargaining agreements required bargaining under certain
circumstances, see id. at 450 n.43 (citing U.S. Dep’t of Justice,
68 F.L.R.A. 580, 582 (2015), to conclude that “the plain
language of the parties’ settlement agreement satisfies this
17
requirement.” Id. (emphasis added). In other words, the Master
Agreement covers consolidated rosters, says the Authority,
because the parties agreed to negotiate further in the Settlement
Agreement. This is a specious line of reasoning.
The Authority’s reasoning makes no sense because the
Settlement Agreement did not amend the Master Agreement.
Indeed, neither party even suggests this. And the Master
Agreement surely did not “contemplate bargaining” over
consolidated relief rosters. Therefore, the “covered-by” issue
cannot be resolved by reference to the Settlement Agreement.
The construction of the Master Agreement is what is at issue in
this case.
Furthermore, the Authority’s view of what the Settlement
Agreement says is simply wrong. The Agency entered the
Settlement Agreement in response to the unfair labor practice
charge that had been filed by the Union. The Settlement
Agreement called for further negotiations over consolidated
rosters, but contained no concessions as to the scope of Article
18. Indeed, the sole remedy for the Agency’s failure to pursue
negotiations under the Settlement Agreement was
reinstatement of the unfair labor practice complaint. That is
what happened when the Agency discontinued bargaining with
the Union. As a result, the “covered-by” issue still had to be
resolved by reference to the Master Agreement, not the
Settlement Agreement.
Finally, it is of little moment that the parties attempted to
negotiate over the new consolidated relief rosters. As noted at
the outset of this opinion, the Agency’s willingness to discuss
a matter with respect to which it had no duty to bargain did not
negate its right to raise the covered-by doctrine in the unfair
labor practice proceedings before the Authority.
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III. CONCLUSION
For the reasons set forth above, we grant the petition for
review and reverse the Authority’s decision.
So ordered.