United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 20, 2011 Decided July 8, 2011
No. 10-1089
FEDERAL BUREAU OF PRISONS,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
COUNCIL OF PRISON LOCALS, COUNCIL 33,
INTERVENOR
On Petition for Review of a Final Decision
of the Federal Labor Relations Authority
Howard S. Scher, Attorney, U.S. Department of Justice,
argued the cause for petitioner. With him on the briefs was
William G. Kanter, Attorney.
Joyce G. Friedman, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With her on the
brief was Rosa M. Koppel, Solicitor. William R. Tobey, Deputy
Solicitor, entered an appearance.
2
David A. Borer and Judith Galat were on the brief for
intervenor American Federation of Government Employees,
Council of Prison Locals, Council 33 in support of respondent.
Mark D. Roth entered an appearance.
Before: GINSBURG and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: The Federal Bureau of Prisons
petitions for review of a decision of the Federal Labor
Relations Authority holding the Bureau had a duty to bargain
over its implementation of a “mission critical” standard for
staffing federal correctional institutions. Because the
Authority unreasonably concluded the mission critical
standard is not “covered by” the collective bargaining
agreement between the Bureau and its employees’ union, we
grant the petition and vacate the Authority’s decision.
I. Background
The terms and conditions of employment for federal
correctional officers are prescribed in a nationwide collective
bargaining agreement (the Master Agreement), executed in
1998 by the Bureau and the American Federation of
Government Employees, Council of Prison Locals No. 33 (the
Union). Article 18 of the Master Agreement, entitled “Hours
of Work,” establishes procedures for the scheduling and
assignment of work for officers at each of the Bureau’s
facilities. Section (d) of Article 18 provides work
assignments are to be determined on a quarterly basis through
a bidding system. Seven weeks before the end of the quarter,
each correctional institution must publish a roster listing the
positions that will be available to officers in the next quarter.
The officers bid for posts and shifts, and assignments are
3
made according to seniority. The list of assignments is then
sent to the warden of the institution for approval.
Article 18(g) provides for the assignment of “relief”
officers to serve for the quarter, covering for officers who are
on sick or annual leave. A relief officer might be assigned to
several different posts over the course of the quarter, although
“reasonable efforts will be made to keep sick and annual relief
officers assigned within [the same] shift.” All officers must
cycle through the relief assignment before any officer is
required to serve in that role again.
When senior managers at the Bureau learned late in 2004
the agency would not be receiving all the funding they had
expected for 2005, they took steps to reduce overtime
expenses, which in their view had become excessive.
Wardens were relying upon regular staff to work overtime (at
a higher wage) to cover absences that might have been filled
by a relief officer paid his regular wage. In order to avoid this
waste of newly scarce funds, the Bureau needed wardens to
assign more officers to relief duty each quarter and
correspondingly reduce the number of officers assigned in
advance to other posts.
To explain the need for this change, the Bureau’s
Assistant Director, John Vanyur, issued a memorandum
stating the quarterly roster for each institution should include
only those posts deemed “critical” to the mission of that
institution. Although under the Master Agreement the warden
retained the right of final approval, Vanyur cautioned that
under the “mission critical” standard certain posts — such as
“Medical Escort,” “Front Gate Officer,” and “Chapel Officer
— should not “typically” or “ordinarily” be deemed
4
“critical.” * The work associated with these non-critical posts
would be assigned instead as a “task” to be performed by
officers serving as relief, and only as needed.
One week after Vanyur sent this memorandum, the Union
demanded the Bureau negotiate over how the mission critical
standard would be implemented. The Bureau refused to
bargain because, in its view, it had already bargained with the
Union over the procedures for assigning work and the result
of that bargaining, Article 18, “covered” and therefore
preempted any further duty to bargain. See Dep’t of Navy v.
FLRA, 962 F.2d 48, 53 (D.C. Cir. 1992). The Union then
filed a formal grievance claiming the Bureau’s refusal to
bargain was an unfair labor practice, in violation of the
Federal Service Labor-Management Relations Statute, 5
U.S.C. §§ 7101-7154; see § 7116(a)(1), (5) (the Statute).
When the Bureau denied the grievance, the Union invoked
arbitration.
The arbitrator concluded the mission critical standard was
not covered by Article 18 because that provision “deals with
procedures only” and not with the content of the rosters. In
his view, Article 18(d), which prescribes the bidding system,
could not possibly cover “a nationwide change in staffing
patterns that affected ... virtually every bargaining-unit
employee.” He characterized the Bureau’s argument
otherwise as “specious” and in bad faith. Then, after
concluding the “impact” of mission critical staffing upon
employees was both “reasonably foreseeable” and “greater
*
The memorandum was addressed to the Bureau’s regional
directors rather than to its wardens. Vanyur testified in arbitration,
however, that he had sent a subsequent letter explaining that the
wardens, not the regional directors, still had final approval over
their rosters. The letter is not in the record but neither the Union
nor the Authority casts doubt upon Vanyur’s testimony.
5
than de minimis,” the arbitrator ordered the Bureau to “enter
forthwith into good faith ... negotiations with the Union.”
The Bureau filed an exception to this award with the
Authority, which held the arbitrator had correctly stated the
law and correctly ruled for the Union. U.S. Dep’t of Justice,
Fed. Bureau of Prisons v. Council of Prison Locals, Council
33, 64 F.L.R.A. 559, 560–62 (2010). That “Article 18 and the
critical roster program both deal with rosters,” the Authority
said, is not enough to show the Article “covers” that program.
Id. at 561. Rather, it agreed with the arbitrator’s
understanding that Article 18 merely “lays out the procedures
for filling specific positions,” and does not “address[] the
impact ... of eliminating certain positions.” Id. The Bureau
had a duty to bargain with the Union over the implementation
of the mission critical standard, the Authority said, because
the rosters issued pursuant to that standard were not “the type
of rosters addressed in Article 18.” Id. Deeming the
arbitrator’s findings “reasonable and supported by the
record,” id., the Authority denied the Bureau’s exception, id.
at 562.
The Authority also identified a “separate and
independent” ground for affirming the award: To wit, the
arbitrator had based his decision not only upon the Statute but
also upon Article 3(d) of the Master Agreement, which the
Authority said imposed upon the Bureau “an independent
bargaining obligation.” Id. Because the Bureau had objected
solely to the arbitrator’s statutory ruling, the award could
stand upon the contractual basis alone, the Authority held,
even if the Bureau was correct that under the Statute the
mission critical staffing standard was “covered by” Article 18.
Id.
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II. Analysis
The Bureau petitions for review of the Authority’s
decision, which “[w]e will not set aside ... unless it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’” Nat’l Treasury Emps. Union v.
FLRA, 452 F.3d 793, 796 (D.C. Cir. 2006) (hereinafter
NTEU) (quoting 5 U.S.C. § 706(2)(A)); see 5 U.S.C. §
7123(c). The Bureau argues the Authority misapplied the law
when it held the Bureau’s instructions on staffing were not
“covered by” the Master Agreement. See NTEU, 452 F.3d at
796–98.
If a collective bargaining agreement “covers” a particular
subject, then the parties to that agreement “are absolved of
any further duty to bargain about that matter during the term
of the agreement.” Dep’t of Navy, 962 F.2d at 53. * 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. NTEU, 452 F.3d at 796 (internal quotation
marks omitted).
An agreement between an agency and its employees’
designated representative must be construed “in view of the
policies embodied in the [Statute].” Id. at 797. When the
question is whether an agreement “covers” a matter, we must
answer bearing in mind the importance of finality to
collective bargaining. See Dep’t of Navy, 962 F.2d at 59 (the
“covered by” doctrine ensures the parties’ “stability and
repose” during the term of their agreement). We will
*
The initial term of the Master Agreement was 1998 to 2001, but
the Agreement provided it would be renewed automatically for one-
year periods until the parties negotiated a replacement.
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therefore reject any construction of a collective bargaining
agreement that treats it as but “a starting point for constant
negotiation over every agency action.” Id. (internal quotation
marks omitted).
The Bureau argues Article 18 covers and preempts all
disputes about particular rosters issued pursuant to and in
compliance with the procedures in Article 18(d). The
Authority responds that a “narrow procedural provision” such
as Article 18(d) cannot reflect bargaining over a “broader
subject” such as, here, the “reorganization of posts.” Stated
differently, both parties understand Article 18 to be a
procedural provision; what they disagree about is the scope of
the agreement it reflects.
We believe the Bureau’s position is the correct one: The
procedures prescribed in Article 18 cover the substance of all
decisions reached by following those procedures. Section
7106(a) gives an agency an exclusive, non-negotiable right to
assign work but, under § 7106(b), it may bargain with the
representative of its employees over the “procedures” it will
use when it exercises that authority and the “appropriate
arrangements” it will make for any employee “adversely
affected” by a particular action. An agreement prescribing
such “arrangements” and “procedures,” that is, the “impact
and implementation” of an agency’s management right,
therefore covers the content of the agency’s decisions made
under that rubric. See Dep’t of Navy, 962 F.2d at 50
(“Although an agency is not required to bargain with respect
to its management rights per se, it is required to bargain about
the impact and implementation of those rights”). Article 18,
specifically in sections (d) and (g), reflects the parties’ earlier
bargaining over the impact and implementation of the
Bureau’s statutory right to assign work. See § 7106(b)
(permitting bargaining over the “numbers, types, ... or
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positions assigned to any ... work project[] or tour of duty”).
Specifically, these provisions represent the agreement of the
parties about the procedures by which a warden formulates a
roster, assigns officers to posts, and designates officers for the
relief shift.
The Authority, however, held the Bureau had a
mandatory duty to engage anew in impact and implementation
bargaining over the mission critical standard on the ground
that a roster implementing that standard is not the “type of
roster[]” covered by Article 18. 64 F.L.R.A. at 561. In
support of that reading, the Authority said only that the
mission critical initiative “addresses the impact of a
nationwide change in staffing patterns,” and does not “deal[]
with procedures.” Id. * The Authority has never explained
why a roster drafted and issued in accordance with the
procedures prescribed by Article 18 is not an Article 18
roster, nor has it responded to the Bureau’s unquestionably
correct observation that Article 18 itself is the product of
impact and implementation bargaining under § 7106(b).
Perhaps the best evidence Article 18 covers the mission
critical standard comes from the testimony of Philip Glover,
the Union’s lead negotiator of the Master Agreement, who
described the purpose of that provision. Before the Master
Agreement was executed in 1998, Glover said, “there wasn’t
a clear roster procedure” at federal prisons. At the prison
where he had worked, for example, “six lieutenants [would]
get into a room and divvy up the staff similar to a softball
team being picked,” and there was no “set procedure” for
challenging an assignment once made. In negotiation of the
*
It is incoherent, in any event, to suggest the mission critical
standard “addresse[d] the impact of a nationwide change in staffing
patterns” when the premise of the Union’s complaint is that the
“nationwide change” is the mission critical standard itself.
9
Master Agreement, the Union secured from the Bureau a
“complete rewrite” of Article 18 to place 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. Article 18, as
Glover’s testimony confirms, is a compromise — “[not]
exactly what [the Union] devised, but ... what we ended up
with in negotiations.” 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.
The 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. See Dep’t of Navy, 962 F.2d at 50; see,
e.g., id. at 61–62 (agreement permitting Marine Corps to set
performance criteria barred challenge to specific criteria;
agreement establishing procedures for seconding employees
to other facilities barred challenge to specific transfers); see
also NTEU, 452 F.3d at 796–98 (agreement detailing how
IRS employees accrue leave covered Union’s proposed
“leave-swapping” program). Here, as in Department of the
Navy, the Authority mistakenly imposed upon the employing
agency a duty to negotiate over the impact and
implementation of a procedure that is itself the outcome of
impact and implementation bargaining. See 962 F.2d. at 61-
62. Because that approach makes a collectively bargained
agreement no more than a “starting point for constant
negotiation” rather than a guarantor of “stability and repose,”
id. at 59, we must reject it.
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The arbitrator caught the scent of just this problem while
in pursuit of an appropriate remedy. Although, when
considering the merits, he had found the mission critical
standard had catalyzed a “nationwide change in staffing
patterns,” he realized that imposing “pre-mission critical”
standards — the very status quo ante remedy the Union had
requested — “would accomplish nothing”: The Bureau
would retain “its Article 18(d) prerogatives” and “[l]ocal
wardens would simply repost the kind of mission critical
rosters they [had] been posting” since receiving the Vanyur
memorandum because it was within their discretion under
Article 18(d) to do so. Instead of restoring the status quo
ante, the arbitrator directed the Bureau to engage in impact
and implementation negotiation with the Union over “Mission
Critical Posts.”
The circularity of the arbitrator’s reasoning about the
remedy reflected the flaw underlying the rest of the award, as
the Bureau argued to the Authority. With respect to the
merits, the arbitrator had found the Vanyur memorandum
effected a significant change in the procedures for developing
rosters under Article 18(d). With respect to the remedy,
however, the arbitrator concluded the mission critical standard
did not change anything of substance because it did not
ultimately alter the warden’s ability to control the assignment
of work.
As the Authority, if not the arbitrator, should have seen,
the Union’s grievance is at bottom a complaint about the
discretion Article 18 itself affords to the wardens. According
to witnesses on both sides, Article 18 was negotiated in a
period of better funding and more liberal hiring. Wardens had
been exercising their approval authority favorably to the
officers, by staffing more full-time posts than were needed
and then paying overtime wages to meet the need for relief
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officers. Deteriorating economic conditions made these
practices unsustainable, but that change does not justify
disregarding an agreement made when times were better.
Ignoring this inconvenient history (as had the arbitrator),
the Authority simply deferred to the findings in the award and
concluded the Master Agreement did not cover the mission
critical standard. 64 F.L.R.A. at 561. Neither in its decision
nor in its brief on appeal has the Authority addressed Glover’s
testimony about the origins of Article 18. It has also ignored
the arbitrator’s belated realization that Article 18, even
without the mission critical standard, permitted wardens to
adopt the very rosters about which the Union had grieved.
The Authority abused its discretion by approving an award so
patently at odds with itself.
Both the arbitrator’s difficulty with the question of
remedy and the Authority’s silence on the subject likely stem
from a glaring ambiguity in the record about the legal force of
the Vanyur memorandum. The record before the Authority
included the arbitrator’s second-hand quotation of the Vanyur
memorandum, but not the memorandum itself; it included
testimony about Vanyur’s subsequent letter clarifying the
memorandum, but not the letter itself. Nor had any party
provided an account of how the mission critical standard was
implemented. The record reflected at most an effort by the
Bureau’s management to persuade or perhaps even to pressure
wardens to adopt a particular approach for managing their
budgets, not a binding policy. Because the Authority made no
attempt to determine the force, if any, of the Vanyur
memorandum, or to consider the intended scope of Article 18,
its conclusion the Master Agreement does not cover the
standard described in that document is all the more difficult to
credit.
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We also reject the Authority’s contention Article 3(d) of
the Master Agreement provides a “separate and independent”
basis for the arbitral award. As the Authority reads it, Article
3(d) requires the Bureau to negotiate over any “national
policy issuance” that affects the officers’ conditions of
employment. Although we doubt a contractual provision
covering a management decision would not also cover a
policy issuance to the same effect, we need not decide the
matter here; because the arbitral award makes no distinction
between the purportedly “separate” statutory and contractual
grounds for the award, the Bureau correctly maintains it was
not required to file a separate exception.
III. Conclusion
The Authority endorsed an incoherent arbitral award and
embraced an unreasonably narrow view of what the Master
Agreement “covers.” Because its decision is thus
“incompatible with ... the terms [and] the purpose” of the
Statute, “we are obliged to intervene.” Dep’t of Navy, 962
F.2d at 53. Accordingly, we grant the petition for review,
vacate the decision of the Authority, and remand this matter
for the Authority to set aside the arbitral award.
So ordered.