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 TREASURY EMPLOYEES UNION, 

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 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. 
2 

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 
3 

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 
4 

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). 
5 

“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 
6 

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 
7 

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.”).
8 

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
9 

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, DavisMonthan 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 
10 

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 
11 

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 
12 

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.