this case is controlled by the court's decision in b o p one there the court explained that article eighteen contains procedures to quote assign officers to posts and designated officers for the relief ship the court further held that article eighteen amps challenges to all specific outcomes of the assignment process those holdings result this case so all specific outcomes the employer can redefine a job in any way he officers on the relief roster are doing what it says in article eighteen ga which is to say filling in for posts of other correctional officers that is correct the substance of those assignment decisions is covered by the procedures in our set is it limited to the same complex what if the decision was made to send an officer to another state for example in the report your honor the employees here are employees of a c c coleman so it's not clear whether they could be sent to an entirely different complex at which they not employee the is there anything in your understanding of article eighteen that would prevent that however it's possible that the answer would be no it's also possible that looking at things like the warden assignment of the fact that we're talking about officers of a particular complex that they would not be ready to do that there is also no reason to do that the entire guiding principle of these complexes is to have synergies between the different institutions and those procedures that might also present a problem so if for instance the agency was posting like rosters but there were no positions on those rosters available for bidding so that everyone got lumped onto the relief rosters that might also present a problem because it would be essentially that out of context it appears that as long as something is effectively run through that process it's ok and i'm wondering in that in a situation like what we have here where there across u transfers what if the employer required someone who's ordinarily works in low security when they went over into high security to wear a badge hi i'm patrick i'm from low security be nice to me we recognize some of the problems that the unions been raising about people coming into situations where they're unfamiliar and they have some safety concerns you have some concerns about familiarity so you're going to deal with that in a low cost way by requiring this badge you know hey i'm a substitute teacher be nice to me well article eighteen covers the substance of workplace assignments another article of the bargaining agreement might or might not cover the idea of wearing a badge and my hypothetical it doesn't but the employees say that has a big impact on us we think that's a terrible idea you know how substitute teachers are treated in fifth grade well this high security prison is not fifth grade and you're really putting a target on our back by choosing no employer prerogative up to a point to choose how to run the run the workplace but they're saying this has an impact on us and under your theory i think the way you framed the breadth of of the b o p decision there's no impact or implementation parking there is that right i don't think that's necessarily true it might be the case but it wouldn't be on because of the you want to holding because that aspect of work a badge isn't a substantive assignment decision it would be another roster employees instead of understanding the job being relief at my level of you know at you're redefining that to be relief anywhere across the complex and so there saying well you know by the same token can you run anything through that and and just claim coverage by b o p under b a p one i want to be careful your honor because they haven't redefined the job of the really eighteen g s sets out what the job of officers on the relief ship is and it is to fill in for other officers who are on sick and had to leave and that has not changed the only thing that has changed is the threat of jobs which they could fill in which is the same thing that changed in libya if you want well yes and no i mean when you apply to work at this complex you apply for low or medium or high you don't apply for you know the pan complex job right that's of my understanding is that's actually not right they are applied to s p c coleman and are hired to a particular institution after they apply for their hire to the entire complex and then tween a loose security in a high security prison so every correctional officer receives the same training it's done at a initial training it's done that at a facility i believe in georgia it's a military program everyone gets no matter what sort of a in a high security prison is not that's a fundamentally different job and you know your honor who first before and i'm happy to get into that i would like to point out that the authorities decision nowhere relies on safety concerns or anything like particular impact or tickler situation in iraq is that's the entire purpose of the covered by doctrine and of the flexible seizures in article eighteen is to deal with the facts on the ground as they arise and to present a set of procedures for making assignments based on those facts if what is the role of the of the bargain in history and then and the twenty ten settlement agreement in your view i mean it the parties to this agreement did act for a long time as there was bargaining in this case but prior to the sports you know the one decision the law in this area was relatively unsettled the authority of taking a very narrow view of the covered by doctrine and so in an abundance of caution the agency  if and how do we determine what's he said to the history of the intent or the awareness the reason why some patients are parties doesn't matter i thought it did under our law that what the reasonable expectation of the parties was when they entered into the agreement was complies with the covered by dr infection week to purposes the covered by doctrine ensures that parties get a bite at the apple and a fair opportunity to bargain matters at the table and that in subsequent changes that happen after the agreement that the youth already attempt to effectuate the mid term bargaining has the authority has a right to effectuate a mid term bargaining obligation in a way that balances stability of the agreement it was safety orientation ensuring that there was a chain of command that was available ensuring that party that guards were assigned to a camp institution have the opportunity to go to a light institution before going to so they would go  involving grievance procedure certainly under eighteen article eighteen the grievances are only applies to matters that are covered by the contract and i think what the parties demonstrated here with that there believe is that it was not this was not a matter  what happened here is within the school of article eighteen he clearly has it's a matter of the sort by oracle eighteen i think can't be any dispute about any of you may not like it  thing that as soon as i read the cases when what is a two thousand and ten agreement and i was interesting for me on how you were going to hedge on it and the import of the two thousand and ten amendment is it says he promises nothing of the sort that you're you're claiming he says if we did work on something we're willing to talk about this thing but if we didn't work out something we're right back here but you're eric i think your point is exactly the right point which is the parties have their fundamentally changed the manner in which it operated federal correctional complexes the fact finding that the authorities should have engaged in demonstrated that during the time in the contract with negotiated the there were two maybe says this is the border true and there are certain requirements we have to follow and if we do it we don't know what the situations are and that's not against the us there could be things we can't even imagine but here is what we agreed to do with respect to all the situation engage in entirely speculative mark and i know they want to have to say if circumstances that for example in circumstances change within the employment complex we have a right to reopen warning to reconsider that's really ver and it's done and i don't i here's my problem and again you have to understand this judge ginsberg simply i don't care whether someone thinks it's wrong or not it's precedent short i don't know how possible you're around  i don't know how you get around my opinion department but i think i'm sorry that i think both are distinguishable i think if we're well i think both are distinguishable in the sense that if we were attempting to retrofit these decisions department of the these matters were on the table the authority of the party should have reasonably contemplated that this would foreclose further negotiations because it was eminently clear or at least reasonably clear to the parties that in the partner the navy navy would exercise its right to detail employees and that some people might not like what happened that in b o p one the agency money the president might change some of the positions on the roster people knew that in one thousand nine hundred five that the management was going to produce a roster and it would have some other than let's get rid of the mission critical program there weren't they didn't identify impacts on the employees that could be really said dictionary station it's like we're going to dig in here we want to negotiate about this because we don't like it and that that than that and if you want more you should ask more for example if it's a new context new employees new building all that smoke that's not what you have i don't know how you write what my colleague just asked how do you write that this is when you really feel strongly about this so while i think the distinction your honor is the point that judge dillard made in just in judge ginsburg's opinion in two thousand and ten he stated that one of the really troubling aspects was that the arbitrator said there's no status quo ante gravity that essentially if we went back to the table the union which are the agency would still be able to do the same thing there was no obvious answer to what would be bargained over whereas here the parties have demonstrated exactly what would be bargained over why it was imp practice finding is is that the agency played a rope a dope with the union for a year and a half refusing to bargain in good faith refusing to meet that reasonable times changing bargaining representatives it never once said at the bargaining table that it believed it didn't have a bar agreement look at how everybody understood that this was impact in a moment patient senate matter and they say yeah but you know that the background of all of that is to the extent that the law so requires and once we know the law doesn't require that is just wiped clean what's your response to that well my understanding your honor is that that is standard language in our settlement agreements that covers times where a union mine which is stand i'm sorry the we will bargain to impasse agreement or and as far as the statu seems innocuous until it's not and they're saying this is where it's not what's your response and i think the response is there are two responses one is that it would be absurd for the agency to sign an agreement saying it had an intention to bargain in good faith over matter and then basically pulled the agreement out as a reason to say no we're not going to bargain in good faith it seems a very circular second is that the that provision that as evidence of the parties practice custom and usage and as i take it their response to that is fine that was practice custom usage in a different legal landscape now that we know that we didn't have to do it we look back and we see that was effectively you know voluntary bargaining because we're good people and you know when we don't have to do it we don't want to and your response to that other than we don't we still think it's   the answer is that it is one factor in many factors that are based on the record here and hearing facts that demonstrate the practice custom and usage to this problem to analysis of the problem to analysis is it is discretion to determine the wrath of the preemptive effect of a contract provision the so the authority does look it reviews the contract language it reviews other language in the contract to determine whether or not whether the in their agreement they've agreed that they have contractual dispute play ought to be resolved you pursuant to their contractual arrangements your argument different pieces which use you in the interim or we should always be able to wander in and decide what the contracts business in the world of contract interpretation dealing with that exactly what you just said you're a judge at work but what is it compared to the first national maintenance context where it said look this is a statutory  including the management right to sign they are impacted implementation bargaining rights and authority you sorted out so you get the opportunity you know there's going to be a contract you need to figure out when in fact implementation bargaining as appropriate  that very broad language all specific help comes i there's no question that incredibly broad language and if the court only focuses on that language i'm tethered to the specific matter at hand here p one unlike this court and to your decision from two thousand and six is that in t you methodically went through the authorities past and applied the authorities guys you know p one did not do that i think it's really important to recognize that the authority has developed a test over twenty this provision of this article so whatever tensions there may be in between the authorities past and the g o p one decision this is not the proper case to examine those in regard to the assertion that there is a fundamental change in the working conditions by use of the consolidated relief roster that's simply not true of the time of negotiation a permanent transfer was the only way that an employee would be assigned from one unit to the other isn't that right that's absolutely right or it's not a position you're taking is really it is kind of requiring bargaining over hypotheticals you know that there has to be some kind of term in every agreement saying well if there's a new context if there's new buildings if the you know size of the facility becomes far flung so we have to commute to go from low security news you know all of those things we have to put in there and say these kinds of changes roster i know i know you see the the authority didn't rely on the sci fi but that that movie was large doesn't it i mean that's a that's a huge change to be to sign up and be trained for going to a low security prison they find out that you're going to have to work in a high security  roster already deal with inmates of all security types for instance if you are guarding the shooter's special housing unit you may very well even in a low security prison have a higher security prison are in the shu because that person was from other inmates at his or her own institution and the change is being performed by officers on a day to day basis on the relief roster one day they might be guarding a special house and you know one day they might be on night shift patrolling the grounds  day they might be in a tower those are already significant differences and they're at least as large as the difference from working across the street when everyone has the same training and there's the same basic procedures in place they're given the same equipment there that i think there's a reason that the authority didn't rely on the safety impacts in its decision here mr walters what's been going on with the you know what has this been operating satisfactorily for some time what's what's the status quo now in terms of how these long after this all began and there is nothing in that collective bargaining agreement discussing because all of a roster is discussing in her institutional assignments that's the agreement is not in the record your honor but it is available publicly online and again i notion and it does there are some similarities i think to to the department of navy case where the court made it clear that if the parties had reached the exact same agreement once the facts on the ground were already known that no one would doubt that forced to return to the bargaining why do you want to have me as a point was given given an agreement that didn't cover this and the position is that don't need to negotiate over it therefore it's not their view covered by eighteen g your view after b o p one is oh it is covered by new day dawns new agreement and you know it doesn't matter what's covered exceptions did not bring it up while the exceptions were pending did not bring it up fucking a motion for reconsideration after the authorities decision point one so on a seventy one twenty three matter which goes to this court's jurisdiction this court cannot faith bargaining so not just that it refused to bargain over the contract but that it refused to come to the table so for instance we will not reasonably delay we're threaten to terminate negotiations over the assignment of employees we will not cancel or place on reasonable conditions on meeting simon of employees so there are very specific unfair labor practices that took place during the bargain is the negotiating for the new agreement in bad faith and they refused to come to the bargaining table i mean i'm just not sure why a whole new chapter of bargaining and that and the agreement that yielded you know this this the past agreement and that and the infractions said that the a l j found with respect to that why there's  to live a fact that they still have i caught i'm not on track to the relationship between the part i think they there are there are there are perspective aspects of the authorities order there are retroactive retrospective aspects of the authorities or prospective the you know the affirmative actions are to bargain in good faith they also include posting this notice which remedies the prior bad faith bargaining which took place under the old agreement it also includes agreeing not to engage in similar kinds of delaying tactics and placing unreasonable conditions on the on bargaining in the future so there are retroactive or there are prior bad acts that need to be remedied and that the authorities order goes to remedy if not it's not only go sit down at the table now i've not read the new agreement i don't know what the terms the new agreement look like because the agency didn't put it in the record and to go back to our offices and brief the court on it like i said my initial instinct is that there are prior bad acts that are remedied in this in this order and that certainly prospective bargaining regional office is in charge of seeking comply of effecting compliance with unfair labor practice findings if there had been a notice posting presumably they we would have found out so my understanding i think is a typical practice