United States Department of Homeland Security, Customs and Border Protection v. Federal Labor Relations Authority

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 6, 2011 Decided August 12, 2011
No. 10-1282
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS AND BORDER PROTECTION ,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
NATIONAL T REASURY E MPLOYEES U NION ,
I NTERVENOR
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 were
Tony West, Assistant Attorney General, and William Kanter,
Attorney.
Rosa M. Koppel, Solicitor, Federal Labor Relations
Authority, argued the cause and filed the brief for respondent.
Joyce G. Friedman, Attorney Advisor, entered an appearance.
Larry J. Adkins argued the cause for intervenor. With
him on the brief was Gregory O’Duden.

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Before: ROGERS , TATEL , and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: U.S. Customs and Border
Protection (CBP), a division of the Department of Homeland
Security, changed local work assignments for its inspectors
without first negotiating with their union. An arbitrator
concluded that this was an unfair labor practice, and the
Federal Labor Relations Authority agreed. For the reasons set
forth below, we deny CBP’s petition for review.
I
The National Treasury Employees Union represents CBP
inspectors nationwide. In 1995, CBP and the Union
negotiated a nationwide agreement for how work assignments
would be made. This agreement, called the National
Inspectional Assignment Policy (NIAP), required bargaining
at the local level over subjects such as workweek length,
work hours, scheduling, staffing levels, and days off.
On August 2, 2001, CBP sent the Union a revised NIAP
(RNIAP) that gave the agency greater flexibility in setting
work assignments and terminated its obligation to bargain
with the Union at the local level. For example, whereas the
NIAP authorized CBP to change workweek length only if
local Union leaders agreed the change was “warranted” in
light of specified criteria, NIAP § 5(A)(1)(a), the RNIAP
provided that workweek length “may be changed” by CBP
managers “as required to meet operational needs,” RNIAP
§ 5(A)(1)(a). Similarly, in contrast to the NIAP’s requirement
that CBP managers schedule employee days off “in
accordance with locally negotiated agreements based on any
one or more of [five named] criteria,” NIAP § 5(A)(1)(c), the
RNIAP directed managers to schedule days off “in

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accordance with” unspecified “operational requirements,”
RNIAP § 5(A)(1)(c). CBP announced that it would begin
following the RNIAP on September 30, 2001, and invited the
Union to bargain over the revised policy.
On August 6, 2001, the Union proposed combining
negotiations over the RNIAP with the renegotiation of a
collective bargaining agreement that had expired in 1999.
One month later, on September 6, CBP declined the Union’s
proposal and warned that any delay in implementing the
RNIAP would be “unacceptable.” Nat’l Treasury Emps.
Union v. Fed. Labor Relations Auth. (NTEU v. FLRA II), 414
F.3d 50, 54 (D.C. Cir. 2005). Believing the parties were at an
impasse over the proposal to negotiate the RNIAP and the
collective bargaining agreement at the same time, the Union
turned to the Federal Mediation and Conciliation Service, an
independent agency that mediates labor disputes. See 29
U.S.C. § 172. When mediation proved unsuccessful, the
Union requested help from the Federal Service Impasses
Panel, which has authority to resolve bargaining disputes
between unions and federal agencies. See 5 U.S.C. § 7119.
The Panel, however, declined to exercise jurisdiction, and
CBP replaced the NIAP with the RNIAP.
The Union challenged CBP’s action before the Federal
Labor Relations Authority. In a February 2004 decision, the
Authority held that CBP could lawfully proceed under the
RNIAP and had no obligation to bargain over the Union’s
proposal to combine negotiations over the RNIAP and a new
collective bargaining agreement. U.S. Dep’t of the Treasury,
Customs Serv., Wash., D.C., 59 F.L.R.A. 703, 711 (2004),
enforced, NTEU v. FLRA II, 414 F.3d 50.1 The Authority did
1 In a subsequent decision, the Authority also held that the
RNIAP lawfully terminated CBP’s obligation under the NIAP to
bargain with the Union at the local level. NTEU, Chapter 143, 60

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not, however, wholly excuse CBP from bargaining over the
RNIAP. Although the agency did not have to bargain over its
decision to replace the NIAP with the RNIAP or over the
proposal to combine negotiations, it did have to bargain over
the “procedures [it] would observe in implementing the
[RNIAP]” and over “appropriate arrangements for employees
adversely affected by [its] decision to implement the
[RNIAP].” Id. (citing 5 U.S.C. § 7106(b)(2), (3)). This case
involves those procedures and arrangements.
Pursuant to the RNIAP, in late 2004 and early 2005 CBP
unilaterally changed various work assignment policies. For
example, the agency eliminated the seven-day workweek at
the Port of Seattle, changed the overtime excusal policy at the
Port of Miami, and implemented a new overtime eligibility
rule at Los Angeles International Airport. The Union filed a
grievance with CBP on May 5, 2005, alleging that the agency
had committed an unfair labor practice by failing to provide
the Union an opportunity to bargain over the changes. CBP
denied the grievance, and the Union invoked arbitration. See
5 U.S.C. § 7121. The arbitrator sided with the Union, the
Authority affirmed the arbitrator’s award, and CBP now
petitions for review. We take jurisdiction under 5 U.S.C.
§ 7123(a).
II
CBP urges us to vacate the Authority’s decision on two
separate grounds, which we consider in turn. We must uphold
the Authority’s decision unless it was “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); see also FDIC v. FLRA, 977 F.2d
1493, 1496 (D.C. Cir. 1992). We afford the Authority
F.L.R.A. 922, 927-28 (2005), enforced, NTEU v. FLRA (NTEU v.
FLRA IV), 453 F.3d 506 (D.C. Cir. 2006).

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“considerable deference when . . . applying the general
provisions of the [Federal Service Labor-Management
Relations Statute (FSLMRS)] to the complexities of federal
labor relations,” NTEU v. FLRA (NTEU v. FLRA I), 399 F.3d
334, 337 (D.C. Cir. 2005) (quoting Bureau of Alcohol,
Tobacco & Firearms v. FLRA, 464 U.S. 89, 97 (1983))
(internal quotation marks omitted), and “defer to the
[Authority’s] interpretation of the FSLMRS if it is
‘reasonable and coherent,’” id. (quoting Am. Fed’n of Gov’t
Emps. v. FLRA, 712 F.2d 640, 643 (D.C. Cir. 1983)).
A
CBP first argues that it had no duty to bargain over the
disputed changes in work assignment policies because the
changes were “covered by” the RNIAP. Under the “covered
by” doctrine, “[i]f 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.’” Fed. Bureau of Prisons v.
FLRA, No. 10-1089, slip op. at 6 (D.C. Cir. July 8, 2011)
(quoting Dep’t of the Navy, Marine Corps Logistics Base,
Albany, Ga. v. FLRA, 962 F.2d 48, 53 (D.C. Cir. 1992)). In
other words, during the term of a collective bargaining
agreement, “an agency may act unilaterally” with regard to
any matter “contained in or covered by” the agreement.
EEOC, Wash., D.C., 52 F.L.R.A. 459, 460 (1996); see also
NTEU v. FLRA (NTEU v. FLRA III), 452 F.3d 793, 796 (D.C.
Cir. 2006) (“[B]argaining is not required . . . with respect to a
matter ‘covered by’ a collective bargaining agreement already
in place.”); U.S. Dep’t of Health & Human Servs., Soc. Sec.
Admin., Balt., Md., 47 F.L.R.A. 1004, 1017-18 (1993)
(“[U]pon execution of an agreement, an agency should be free
from a requirement to continue negotiations over terms and

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conditions of employment already resolved by the previous
bargaining . . . .”).
There is a significant flaw in CBP’s argument. As our
recitation of the “covered by” doctrine makes clear, and as the
Authority explained below, see U.S. Dep’t of Homeland Sec.,
Customs & Border Prot., 64 F.L.R.A. 989, 995 (2010), the
doctrine applies only to collective bargaining agreements, and
the Authority has previously held that the RNIAP is not such
an agreement, see NTEU, Chapter 137, 60 F.L.R.A. 483, 487
(2004); see also NTEU, Chapter 143, 60 F.L.R.A 922, 929-30
(2005). CBP protests that the Authority has never provided a
“reasonable and coherent” explanation why it isn’t, but we
disagree.
The FSLMRS defines “collective bargaining agreement”
as “an agreement entered into as a result of collective
bargaining pursuant to the provisions of [the FSLMRS].” 5
U.S.C. § 7103(a)(8). In NTEU, Chapter 137, the Authority
explained that the RNIAP does not fit that definition because
it is neither part of nor subject to a national agreement
between CBP and the Union. 60 F.L.R.A. at 487. Although
terse, this explanation is reasonable. By definition a collective
bargaining agreement requires that there be an agreement.
The RNIAP, however, does not represent any sort of
agreement between CBP and the Union. It was unilaterally
imposed by CBP and replaced an earlier bargain the parties
had struck.2
2 The Authority also found that the RNIAP is not a collective
bargaining agreement because “it has no term provision.” NTEU,
Chapter 137, 60 F.L.R.A. at 487. We need not consider the
adequacy of this second rationale because the Authority’s
explanation was reasonable without it. See BDPCS, Inc. v. FCC,
351 F.3d 1177, 1183 (D.C. Cir. 2003) (“When an agency offers

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CBP acknowledges that the RNIAP is neither part of nor
subject to an express agreement between the parties, but
argues that under Authority precedent a collective bargaining
agreement may be formed even absent express assent. For
example, where two parties reach an impasse in bargaining
and one invokes the assistance of the Impasses Panel, “any
agreement, mandated or otherwise, resulting therefrom is a
part of the [parties’] collective bargaining agreement.” U.S.
Dep’t of Labor, Wash., D.C., 60 F.L.R.A. 68, 71 (2004)
(quoting Interpretation & Guidance, 15 F.L.R.A. 564, 567
(1984)) (internal quotation mark omitted). Or, where a union
“fails to request bargaining within a reasonable period of time
after being notified of proposed changes, fails to submit
bargaining proposals within a contractual or other agreed
upon time limit, fails to bargain, or fails to timely invoke the
services of the [Impasses] Panel,” the union “is considered to
have consented to [the] proposed changes,” which then
become part of the parties’ agreement. Id. at 70-71. Thus, in
Department of Labor, Washington, the Authority found that
an agency proposal became part of a collective bargaining
agreement when the union neither responded to the proposal
nor sought assistance from the Impasses Panel. See id. at 68,
71-72.
The Authority, however, reasonably rejected CBP’s
attempted analogy to Department of Labor, Washington,
because here “the union evidenced no intent to abandon its
rights.” Resp’t’s Br. 24. Unlike in that case, the Union asked
the Impasses Panel to intervene. That the Panel declined the
Union’s request is irrelevant. Nor is this a case where the
union failed to seek bargaining or submit any proposals
multiple grounds for a decision, we will affirm the agency so long
as any one of the grounds is valid, unless it is demonstrated that the
agency would not have acted on that basis if the alternative grounds
were unavailable.”).

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during the negotiation period. To the contrary, the Union has
fought the RNIAP tooth and nail from the beginning.
Given the differences between this case and those on
which CBP relies, the Authority’s explanation for why the
RNIAP is not a collective bargaining agreement was
adequate. The Authority was not required to canvas the field
to explain why inapplicable cases or doctrines do not apply.
Our precedents do not require agencies to explain why apples
are not oranges. We defer to the Authority’s reasonable
determination that the RNIAP is not a collective bargaining
agreement subject to the “covered by” doctrine.
B
CBP contends in the alternative that it had no duty to
bargain over the changes it made pursuant to the RNIAP
because they did not alter inspectors’ “conditions of
employment.” Under the FSLMRS, federal employees have
the right “to engage in collective bargaining with respect to
conditions of employment through” union representatives. 5
U.S.C. § 7102(2). “Conditions of employment” are
“personnel policies, practices, and matters” that “affect[]
working conditions.” Id. § 7103(a)(14). CBP argues that this
statutory language supports a legally significant distinction
between “conditions of employment,” which it says are the
governing policies and procedures an agency follows when
changing an employee’s work assignments, and “working
conditions,” which it says are the more narrow day-to-day
circumstances of a particular job. See Dep’t of Def.
Dependents Schs. v. FLRA, 863 F.2d 988, 990 (D.C. Cir.
1988) (“The term ‘working conditions’ ordinarily calls to
mind the day-to-day circumstances under which an employee
performs his or her job.”), vacated on other grounds, 911
F.2d 743 (D.C. Cir. 1990) (en banc) (per curiam); see also

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Pet’r’s Br. 32 (arguing that work hours, rotations, and days
off are examples of “working conditions”). According to
CBP, although an agency must bargain when it alters a
governing policy or “condition of employment,” it need not
bargain when making small-scale changes in working
conditions. See U.S. Dep’t of Labor, OSHA, Region I, Boston,
Mass. (Dep’t of Labor, Boston), 58 F.L.R.A. 213, 217 (2002)
(Cabaniss, Chairman, concurring) (“Our precedent, in its
discussion of the statutory duty to bargain, focuses on
whether there has been a change to ‘conditions of
employment’ and not whether ‘working conditions’ have
been changed.”); see also U.S. Dep’t of the Air Force,
Headquarters, 96 Air Base Wing, Eglin Air Force Base, Fla.
(Dep’t of the Air Force, Fla.), 58 F.L.R.A. 626, 626
(2003) (Cabaniss, Chairman, concurring) (“As there was no
change here to the underlying personnel policy, practice, or
matter affecting what work assignments [the employees] had
to do, there was no change to bargain over, even though . . .
the [employees’] . . . ‘working conditions’[] had been
changed.”). CBP contends that the adjustments it made in this
case to work schedules and overtime eligibility were localized
changes to particular inspectors’ working conditions and that
only a change to the terms of the RNIAP itself—the
governing assignment policy or “condition of employment”—
would trigger a duty to bargain.
The Authority reasonably rejected CBP’s argument. To
begin with, the Authority has previously held that there is “no
substantive difference between ‘conditions of employment’
and ‘working conditions’ as those terms are practically
applied.” U.S. Dep’t of Homeland Sec., 64 F.L.R.A. at 995
(quoting U.S. Dep’t of the Air Force, 335th MSG/CC, Davis-
Monthan Air Force Base, Ariz. (Dep’t of the Air Force, Ariz.),
64 F.L.R.A. 85, 90 (2009)) (internal quotation mark omitted).
We think this conclusion is reasonable, given that both courts

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and the Authority “have accorded [working conditions] a
broad interpretation that encapsulates a wide range of subjects
that is effectively synonymous with ‘conditions of
employment.’” Dep’t of the Air Force, Ariz., 64 F.L.R.A. at
90; see, e.g., Fort Stewart Schs. v. FLRA, 495 U.S. 641, 645
(1990) (“[T]he term ‘working conditions’ [as defined in the
FSLMRS] more naturally refers . . . to the ‘circumstances’ or
‘state of affairs’ attendant to one’s performance of a job.”);
Antilles Consol. Educ. Ass’n, 22 F.L.R.A. 235, 237 (1986)
(stating that, in examining whether a proposal affects
“working conditions,” the Authority looks to the “work
situation or employment relationship” of employees).
Moreover, CBP’s actions in this case easily satisfy the
Authority’s two-pronged test for whether a matter concerns a
condition of employment over which an agency must bargain:
“(1) Whether the matter . . . pertains to bargaining unit
employees; and (2) [t]he nature and extent of the effect of the
matter . . . on working conditions of those employees.”
Antilles Consol. Educ. Ass’n, 22 F.L.R.A. at 236-37. The
changes CBP made to work schedules, overtime policies, and
other matters “pertain[ed] to bargaining unit employees,” and
also had a significant “effect” on inspectors’ working
conditions. Cf. Dep’t of Labor, Boston, 58 F.L.R.A. at 216
(Cabaniss, Chairman, concurring) (explaining that “an
employee’s work starting and stopping times” are “working
conditions”).
Finally, CBP asserts that the Authority’s conclusion
conflicts with case law holding that an agency does not alter
conditions of employment when it applies an existing
personnel policy in a way that affects an employee’s work
assignments. For example, in Department of Labor, Boston,
an agency employee voluntarily transferred from a position
that authorized use of an agency vehicle to a position that did

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not. See id. at 213-14. The Authority held that the agency’s
refusal to allow the employee to continue using the vehicle
did not change her conditions of employment. See id. at 216.
Similarly, in U.S. Immigration & Naturalization Service,
Houston District, Houston, Texas (INS, Houston), 50
F.L.R.A. 140 (1995), the Authority determined that
reassigning inspectors to a different shift that had been used
for many years did not change their conditions of
employment, because the agency “as a routine matter . . .
assign[ed] and reassign[ed] inspectors to different shifts based
on anticipated workload requirements,” see id. at 144; see
also U.S. Dep’t of Homeland Sec., Border & Transp. Sec.
Directorate, U.S. Customs & Border Prot., Border Patrol,
Tucson Sector, Tucson, Ariz., 60 F.L.R.A. 169, 174 (2004)
(finding that CBP decision that increased workload at
particular station did not change inspectors’ conditions of
employment, because decision did not alter “the ‘type’ of
aliens that were being processed, the type of work that
[station] employees performed, or, in any manner, the
processing of alien apprehensions”); Dep’t of the Air Force,
Fla., 58 F.L.R.A. at 626, 629 (upholding arbitrator finding
that where agency had “an established practice of modifying
work assignments in response to mission and workload
functions,” a decision resulting in employees spending less
time on their own aircraft and more time on other aircraft was
“merely a variation of existing assignment practices, not a
bargainable change in conditions of employment”).
CBP argues that, like the agencies in those cases, it had
no duty to bargain over the disputed work assignment
changes in this case because it was merely applying existing
policies (as set forth in the RNIAP). But as the Authority
explained, the cases CBP cites are inapposite because they all
“concern[ed] an agency’s application of an existing,
established practice.” U.S. Dep’t of Homeland Sec., 64

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F.L.R.A. at 994 n.11. Here, by contrast, although CBP
“followed” the RNIAP, it did so to change rather than apply
established practices. In Seattle, the agency revoked the
seven-day work week; in Miami and Los Angeles, it changed
the overtime policy. These were new assignment practices,
changes from CBP’s previous way of doing things.
Moreover, the practices at issue in the cases CBP cites
were much narrower in scope than the RNIAP. For example,
in Department of Labor, Boston, the established “practice”
was to provide agency vehicles only for certain positions. In
INS, Houston, it was to reassign employees among existing
shifts based on anticipated workloads. Here, by contrast, the
established “policy” was to unilaterally set work hours,
workweek length, days off, staff levels, job duties, work
locations, overtime eligibility, and more, with the sole
requirement that they be set in accordance with “operational
requirements” or “operational needs.” See RNIAP § 5. Were
we to take the view CBP urges, the agency would be free to
make significant changes to all sorts of work assignment
practices without ever involving the Union. None of the cases
upon which CBP relies sweeps so broadly. The Authority
reasonably concluded that those cases do not govern the
dispute here and adequately explained that conclusion in its
decision below.
III
The petition for review is
Denied.

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