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

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

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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

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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

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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

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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.