United States Court of Appeals, District of Columbia Circuit
United States Department of Justice, Federal Bureau of Prisons Federal Correctional Complex Coleman, Florida, Petitioner
Federal Labor Relations Authority, Respondent
September 22, 2017
Petition for Review of a Final Decision of the Federal Labor
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.
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,
Before: Griffith and Pillard, Circuit Judges, and Edwards,
Senior Circuit Judge.
Edwards, Senior Circuit Judge
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.
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
("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.
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.
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' 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
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
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.
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 ...