[00:00:00] Speaker 00: Oh yay, oh yay, oh yay, all persons having business before the honorable. [00:00:05] Speaker 00: The United States Court of Appeals for the District of Columbia Circuit are admonished to draw near and give their attention, for the court is now sitting. [00:00:13] Speaker 00: God save the United States and this honorable court. [00:00:15] Speaker 00: Be seated, please. [00:00:18] Speaker 00: Case number 16-1301, United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Complex, Coleman, Florida, Petitioner, versus Federal Labor Relations Authority. [00:00:32] Speaker 00: Mr. Walters for the petitioner, Mr. Jacob for the respondent. [00:00:35] Speaker 05: Good morning. [00:00:36] Speaker 05: Good morning, Your Honor. [00:00:39] Speaker 05: May it please the Court, Tice Walters for the Federal Bureau of Prisons. [00:00:42] Speaker 05: With the Court's permission, I'd like to reserve five minutes of time for rebuttal. [00:00:46] Speaker 05: This case is controlled by the court's decision in BOP 1. [00:00:51] Speaker 05: There, the court explained that Article 18 contains procedures to, quote, assign officers to posts and designate officers for the relief shift. [00:00:59] Speaker 05: The court further held that Article 18 covers and preempts challenges to all specific outcomes of the assignment process. [00:01:07] Speaker 05: Those holdings resolve this case. [00:01:10] Speaker 01: So all specific outcomes, the employer can redefine a job in any way it chooses so long as the job it posts goes into the roster and they give the employees notice and they take preference by seniority and assign the rest onto a relief roster. [00:01:26] Speaker 01: Any way it changes a job is fine as long as it goes through that. [00:01:29] Speaker 05: So long as the officers on the relief roster are doing what it says in Article 18G, which is to say filling in for posts of other correctional officers, that is correct. [00:01:40] Speaker 05: The substance of those assignment decisions is covered by the procedure. [00:01:44] Speaker 03: Is that limited to the same complex? [00:01:46] Speaker 03: What if the decision was made to send an officer [00:01:49] Speaker 03: to another state, for example. [00:01:51] Speaker 05: Well, Your Honor, the employees here are employees of FCC Coleman, so it's not clear whether they could be sent to an entirely different complex at which they are not employees of. [00:02:02] Speaker 03: Is there anything in your understanding of Article 18 that would prevent that, however? [00:02:07] Speaker 05: It's possible that the answer would be no. [00:02:09] Speaker 05: It's also possible that looking at things like the procedure for warden assignment or the fact that we're talking about officers of a particular complex, that they would not be permitted to do that. [00:02:21] Speaker 05: There's also no reason to do that. [00:02:24] Speaker 05: The entire guiding principle of these complexes is to have synergies between the different institutions. [00:02:31] Speaker 05: separate regulations that deal with things like travel for workplace employees. [00:02:36] Speaker 03: So if I guess what we're going to getting at is you've taken a very broad view of article 18. [00:02:42] Speaker 03: I'm just trying to find out either limits to that. [00:02:45] Speaker 05: There are certainly limits, Your Honor. [00:02:47] Speaker 05: It's true that we have taken a broad view. [00:02:49] Speaker 05: Such as? [00:02:49] Speaker 05: Give me a limit. [00:02:50] Speaker 05: Help me understand. [00:02:51] Speaker 05: If the agency wished to change the procedures for workplace assignment in Article 18, that would certainly require bargaining. [00:02:58] Speaker 05: So if it wanted to give three weeks' notice rather than seven weeks' notice, or if it wanted to have employees bid by performance review rather than – But anything that complies with the procedures? [00:03:08] Speaker 05: So if by complying with the procedures, the agency was essentially nullifying those procedures, that might also present a problem. [00:03:18] Speaker 05: So if, for instance, the agency was posting black 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 nullifying the procedures in both 18D and 18G. [00:03:34] Speaker 05: But this court's decision in BOP 1 is a broad decision. [00:03:39] Speaker 01: It seems so broad on the face of the portion you quote that if you just take that out of context, it appears that as long as something is effectively run through that process, it's OK. [00:03:54] Speaker 01: And I'm wondering in a situation like what we have here where there are cross-unit or transfers, [00:04:02] Speaker 01: What if the employer required someone who ordinarily works in low security, when they went over into high security to wear a badge? [00:04:11] Speaker 01: Hi, I'm Patrick. [00:04:13] Speaker 01: I'm from low security. [00:04:14] Speaker 01: Be nice to me. [00:04:17] Speaker 01: That wouldn't be anything that there would have to be impact and implementation bargaining over, right? [00:04:24] Speaker 05: So the procedures in Article 18 [00:04:27] Speaker 01: Fully comply with those procedures. [00:04:29] Speaker 01: Fully comply with posting. [00:04:31] Speaker 01: Just, you know, we recognize some of the problems that the union's been raising about people coming into situations where they're unfamiliar and they have some safety concerns, they have some concerns about familiarity. [00:04:42] Speaker 01: So you're gonna deal with that in a low-cost way by requiring this badge. [00:04:46] Speaker 01: You know, hey, I'm the substitute teacher, be nice to me. [00:04:49] Speaker 05: Well, Article 18 covers the substantive workplace assignments. [00:04:53] Speaker 05: Another article of the bargaining agreement might or might not cover the idea of wearing a badge. [00:04:59] Speaker 01: My hypothetical, it doesn't, but the employees say that has a big impact on us. [00:05:04] Speaker 01: We think that's a terrible idea. [00:05:06] Speaker 01: You know how substitute teachers are treated in fifth grade? [00:05:09] Speaker 01: Well, this high security prison is not fifth grade. [00:05:13] Speaker 01: And you're really putting a target on our back by choosing that employer prerogative up to a point to choose how to run the workplace. [00:05:22] Speaker 01: But they're saying, this has an impact on us. [00:05:25] Speaker 01: And under your theory, I think, the way you framed the breadth of the BOP decision, there's no impact or implementation bargaining there. [00:05:33] Speaker 01: Is that right? [00:05:34] Speaker 05: I don't think that's necessarily true. [00:05:36] Speaker 05: It might be the case. [00:05:38] Speaker 05: But it wouldn't be because of the VOP1 holding, because the aspect of wearing a badge isn't a substantive assignment decision. [00:05:46] Speaker 05: It would be another aspect of employer of work conditions. [00:05:51] Speaker 01: Well, it's assigning someone to a job that they've defined in a particular way. [00:05:56] Speaker 01: And it sounds like your reasoning is that they've redefined the jobs they're posting so that the relief roster employees, instead of understanding the job being relief at my level of unit, you're redefining that to be relief anywhere across the complex. [00:06:17] Speaker 01: So they're saying, well, by the same token, can't you run anything through that and just claim coverage by BOP under BOP 1? [00:06:26] Speaker 05: I want to be careful, Your Honor, because they haven't redefined the job of the relief roster. [00:06:32] Speaker 05: Article 18G sets out what the job of officers on the relief shift is, and it is to fill in for other officers who are on sick and annually. [00:06:41] Speaker 05: And that has not changed. [00:06:42] Speaker 05: The only thing that has changed is the breadth of jobs for which they could fill in, which is the same thing that changed in the BOP1. [00:06:52] Speaker 01: Well, yes and no. [00:06:53] Speaker 01: I mean, when you apply to work at this complex, you apply for low or medium or high. [00:06:59] Speaker 01: You don't apply for the [00:07:03] Speaker 01: pan-complex job, right? [00:07:06] Speaker 05: My understanding is that's actually not right. [00:07:08] Speaker 05: They are applied to FCC Coleman and are hired to a particular institution after they have applied. [00:07:14] Speaker 05: They're hired to the entire complex. [00:07:16] Speaker 05: And then once they have gone through training, they are put into a particular institution, which then becomes their quote home. [00:07:21] Speaker 01: My understanding from the record was that the job is a job at a particular unit within the complex, a particular level of security. [00:07:29] Speaker 02: That's not the way you're hired in, though. [00:07:31] Speaker 02: You get assigned to a job, but you're hired by the whole complex. [00:07:34] Speaker 05: That's correct, Your Honor. [00:07:35] Speaker 05: And certainly, your home institution has a lot of practical effects, but that isn't in Article 18 or in the bargaining agreement. [00:07:43] Speaker 03: And the training you refer to, what would the difference in training be between a low security and a high security prison? [00:07:50] Speaker 05: So every correctional officer receives the same training. [00:07:53] Speaker 05: It's done at a initial training. [00:07:56] Speaker 05: It's done at a facility, I believe, in Georgia. [00:07:59] Speaker 05: It's a multi-week program. [00:08:01] Speaker 05: Everyone gets no matter what sort of facility they'd ultimately be at. [00:08:04] Speaker 05: There is eventually, once they arrive at FCC Coleman, they're given, I think it's one week of institution-specific training. [00:08:11] Speaker 05: So they'll be shown around and told how to do things. [00:08:14] Speaker 05: That said, the annual training that they receive, the refresher trainings, those are similarly every correctional office. [00:08:19] Speaker 03: But haven't you just identified the fundamental problem with what's going on here? [00:08:24] Speaker 03: And that's taking someone who's been trained for the low-security prison and, by virtue of their relief roster, putting them in a high-security prison. [00:08:34] Speaker 03: That's a fundamentally different job, isn't it? [00:08:37] Speaker 05: No, Your Honor. [00:08:39] Speaker 05: First, and I'm happy to get into that, I would like to point out that the authority's decision nowhere relies on safety concerns or anything like that in its actual decision. [00:08:49] Speaker 05: But in terms of the actual safety impacts or the lack of training, there are two other articles within the master agreement, Article 27, which deals with safety and health, and Article 21, which deals with training. [00:09:04] Speaker 05: And if there were serious problems with safety, for instance, the union could file a grievance alleging that the agency had created a health risk or a safety risk through its actions, and that would be adjudicated in the normal way. [00:09:23] Speaker 05: But that's not what happened here. [00:09:24] Speaker 02: I mean, isn't that really the answer to most of what you're being asked? [00:09:27] Speaker 02: There are grievance procedures, and they're covered by other provisions in the contract. [00:09:31] Speaker 02: This provision, the only thing that the authority is focused on, [00:09:34] Speaker 02: This is a scope of assignment provision. [00:09:37] Speaker 02: And I think what you're saying is, you don't know how you get around Judge Ginsburg's opinion or mine in the Department of Navy. [00:09:43] Speaker 05: But that's exactly right. [00:09:44] Speaker 02: Contained in the agreement is contained in the agreement. [00:09:46] Speaker 02: And the union had it shot at bargaining. [00:09:49] Speaker 02: And if it didn't want something like this to occur, we gave them fair notice in those two opinions, then you'd better negotiate differently. [00:09:58] Speaker 02: Otherwise, your resort is the grievance procedure. [00:10:01] Speaker 05: That's exactly right, Your Honor. [00:10:02] Speaker 05: And it is also true that this is not a permanent ban on bargaining over these issues. [00:10:08] Speaker 05: It is during the life of the bargain. [00:10:10] Speaker 02: That's what the contained indoctrination is. [00:10:12] Speaker 02: You negotiate what your contract is, you're bound by it. [00:10:16] Speaker 02: But you can go to five grievances, and all these things we've been talking about now are grievance procedure issues, and the grievance is there. [00:10:23] Speaker 03: How do you respond to the argument that at the time the master agreement was entered into, there really weren't such things as inter-institutional complexes? [00:10:32] Speaker 03: This is a new development that's changed the nature of the bargain. [00:10:37] Speaker 05: Well, the authority and the judge, and I am happy to answer the question. [00:10:41] Speaker 05: I do want to make sure to reserve some time for rebuttal. [00:10:44] Speaker 03: Sure, we'll give you time. [00:10:44] Speaker 05: The authority and the judge both acknowledged that complexes did exist when this was being negotiated. [00:10:51] Speaker 05: They were rare, according to the authority, and we're not challenging that. [00:10:54] Speaker 05: But the issue is not one of whether the parties anticipated at the time of bargaining that a particular impact or a particular situation would arise. [00:11:03] Speaker 05: entire purpose of the covered by doctrine and of the flexible procedures in article 18 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. [00:11:19] Speaker 01: What is the role of the bargaining history and the 2010 settlement agreement in your view? [00:11:26] Speaker 01: The parties to this agreement did act for a long time as if they understood intra-unit assignments not to be covered by the agreement. [00:11:39] Speaker 01: They did a lot of bargaining and they did the settlement all based on the assumption that these were impacted implementation issues. [00:11:45] Speaker 05: There was bargaining in this case. [00:11:47] Speaker 05: But prior to the court's BOP1 decision, the law in this area was relatively unsettled. [00:11:53] Speaker 05: The authority had taken a very narrow view of the covered by doctrine. [00:11:55] Speaker 05: And so in an abundance of caution, the agency did bargain for several years until the BOP1 decision clarified the law, at which point. [00:12:05] Speaker 02: And in that settlement agreement, the remedy for failure of bargaining is what? [00:12:09] Speaker 05: It's the reinstatement of the initial complaint. [00:12:13] Speaker 02: I mean, that's the oddity here. [00:12:15] Speaker 02: There's a settlement. [00:12:16] Speaker 02: Whatever the parties thought, the settlement says, well, we agree to talk about this. [00:12:20] Speaker 02: The parties agreed to talk about it. [00:12:22] Speaker 02: And they both agreed that if it fails, we'll go back to where we are here, where the contained indoctrin is in play again. [00:12:29] Speaker 05: That's exactly right, Your Honor. [00:12:31] Speaker 01: But they didn't bargain to failure. [00:12:32] Speaker 01: They stopped bargaining. [00:12:34] Speaker 05: I stopped bargaining, right. [00:12:36] Speaker 05: They did stop bargaining. [00:12:38] Speaker 05: The settlement agreement ties the duty to bargain to the statutory duty, and once the OP clarified that there was no statutory duty, they were no longer bound. [00:12:46] Speaker 05: And as Judge Edwards pointed out, the remedy is reinstatement of the initial complaint and adjudication of whether the underlying conduct was an unfair labor ban. [00:12:55] Speaker 01: And we will give you extra time, but just dialing back, [00:13:02] Speaker 01: You can see that this case is under the inseparably bound up factor, or your position is that there's nothing that expressly covers it, but it's covered by because it's inseparably bound up with a subject expressly covered by the agreement. [00:13:16] Speaker 01: And how do we determine what's [00:13:19] Speaker 01: You said that the history of the intent or the awareness, the reasonable expectation of the parties doesn't matter. [00:13:24] Speaker 01: I thought it did under our law, that what the reasonable expectation of the parties was when they entered into the agreement was part of our analysis of what counts as something that's inseparably bound up with the terms of the agreement. [00:13:39] Speaker 05: Apologies, Your Honor. [00:13:40] Speaker 05: It's not that it has no bearing. [00:13:42] Speaker 05: It certainly has bearing, but it's also not dispositive. [00:13:44] Speaker 05: If it were dispositive, the appeal, of course, would have come out differently, because the opinion was very careful to note that the parties did not anticipate the change issue there. [00:13:53] Speaker 01: But it was a type of change, economic downturn, that was obviously something that workers and employers always have to anticipate. [00:14:02] Speaker 05: I mean, similarly, of course, [00:14:05] Speaker 05: economic concerns for what part is motivating the policy here. [00:14:10] Speaker 05: It's similarly an attempt to avoid excessive overtime costs. [00:14:14] Speaker 05: But I mean, the question, of course, is just as the OP1 made clear, is the substantive assignment done in conformity with the open procedures? [00:14:26] Speaker 03: We'll give you back three minutes. [00:14:28] Speaker 03: Thank you, Your Honor. [00:14:29] Speaker 03: Thank you. [00:14:35] Speaker 03: Good morning. [00:14:43] Speaker 04: Good morning, Your Honors. [00:14:45] Speaker 04: May it please the Court. [00:14:46] Speaker 04: My name is Fred Jacob. [00:14:47] Speaker 04: I'm a solicitor at the Federal Labor Relations Authority. [00:14:49] Speaker 04: With me is Zach Hennigie, and together we represent the agency for the Court. [00:14:54] Speaker 04: The authority asks this Court to affirm its order, essentially because its order complies with the covered by doctrine and effectuates its purposes. [00:15:02] Speaker 04: The covered by doctrine ensures that parties get a bite of the apple and a fair opportunity to bargain matters at the table, and that in subsequent changes that happen after the agreement, that the authority attempts to effectuate the midterm bargaining. [00:15:20] Speaker 04: The authority has the right to effectuate a midterm bargaining obligation in a way that balances stability of the agreement with the promotion of collective bargaining that Congress intends [00:15:30] Speaker 01: Mr. Jacob, what is the impact and implementation that the employer needs to bargain over here? [00:15:35] Speaker 01: What are some of the kinds of terms the authority, I mean, that the, yeah, that the authority believes are impact and implementation matters that might be obtained through bargaining, were the agency to agree? [00:15:51] Speaker 04: Your Honor, I think the perfect example is what the parties did negotiate in 2006, in their agreement from 2006 to 2008. [00:15:57] Speaker 04: It was, [00:15:59] Speaker 04: 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 like institution before going to, so they would go to medium security before they would go to a penitentiary high security. [00:16:17] Speaker 01: So there... And why isn't the grievance procedure an adequate response to that, as Judge Edwards is pointing out? [00:16:24] Speaker 04: I think the grievance procedure obviously would, there are cases involving grievance procedure certainly under 18, article 18. [00:16:32] Speaker 04: But the grievance procedure only applies to matters that are covered by the contract. [00:16:36] Speaker 04: And I think what the parties demonstrated here was that their belief is that this was not a matter covered by the contract because they negotiated it in 2006. [00:16:45] Speaker 04: They negotiated it again in 2009. [00:16:48] Speaker 04: Then they negotiated it again in 2011. [00:16:52] Speaker 04: So presumably, the union didn't feel that this was an adequate subject for the grievance procedure. [00:16:57] Speaker 02: The fact that what the union, whether or not the union is happy or unhappy with what they agreed to is not the question. [00:17:05] Speaker 02: And that's one of the burdens of the covered by doctrine. [00:17:09] Speaker 02: You know where I'm coming from in this. [00:17:11] Speaker 02: You get your shot at bargaining. [00:17:13] Speaker 02: What happened here is within the scope of Article 18. [00:17:17] Speaker 02: It clearly is. [00:17:18] Speaker 02: It's a matter of the sort covered by Article 18. [00:17:22] Speaker 02: In fact, there can't be any dispute about that. [00:17:25] Speaker 02: And you may not like it, but there can be no doubt that this matter is within the sweep of Article 18. [00:17:34] Speaker 02: The covered by doctrine says, you had your bite. [00:17:37] Speaker 02: Now, the fact that the parties keep talking about [00:17:41] Speaker 02: That's just real life stuff. [00:17:43] Speaker 02: And the thing that as soon as I read the case, I was like, wait, what is that 2010 agreement? [00:17:48] Speaker 02: And it was interesting for me on how you were going to hedge on it. [00:17:52] Speaker 02: And the import of that 2010 amendment is it says, it promises nothing of the sort that you're claiming. [00:18:01] Speaker 02: It says if we can't work out something, we're willing to talk about this thing. [00:18:05] Speaker 02: But if we can't work out something, we're right back here. [00:18:09] Speaker 04: Well, Your Honor, I think your point is exactly the right point, which is the parties had their shot to negotiate in 1995 to 1998. [00:18:17] Speaker 04: But what the fact findings here demonstrated is that the agency, between the time that the negotiations were transpiring and the time of this change, underwent a significant operational change that fundamentally changed the manner in which it operated [00:18:31] Speaker 04: federal correctional complexes. [00:18:33] Speaker 04: The fact finding that the authority should have engaged in demonstrated that during the time the contract was negotiated, there were two, maybe three institutions in the entire country of over 100 institutions that had multiple facilities in the same complex that [00:18:52] Speaker 04: employees did not transfer among those facilities, that assignments weren't made among those facilities. [00:18:57] Speaker 02: But that doesn't answer my concern, that what happened here is still within the scope of 18. [00:19:01] Speaker 02: Well, Your Honor, what I... Let me just tell you, I think you understand. [00:19:05] Speaker 02: I understand. [00:19:05] Speaker 02: 18 doesn't list everything that might arise in the following years. [00:19:13] Speaker 02: It says, this is the broad picture, and there are certain requirements we have to follow, and if we do it, we don't know what the situations are, [00:19:21] Speaker 02: And that's not against us. [00:19:22] Speaker 02: There could be things we can't even imagine. [00:19:24] Speaker 02: But here's what we agree to do with respect to all those situations within the scope of 18. [00:19:29] Speaker 02: That's what the contained indoctrin is. [00:19:31] Speaker 04: Well, Your Honor, I think what the authority would suggest is that this was a exercise of the right to a sign that had not previously been exercised during the course of that agreement. [00:19:42] Speaker 02: No doubt. [00:19:42] Speaker 04: And beyond that, with all due respect, I think what you are suggesting is that the union practically [00:19:50] Speaker 04: that if the union wanted to address these matters during the course of the master agreement bargaining from 1995 to 1998, it would have had to engage in entirely speculative bargaining. [00:20:00] Speaker 02: No, they would have had to say if circumstances, for example, if circumstances change within the employment complex, we have a right to reopen bargaining to reconsider. [00:20:12] Speaker 02: That's really very simple. [00:20:13] Speaker 02: And it's done. [00:20:15] Speaker 02: And I don't know, here's my [00:20:19] Speaker 02: You read Judge Ginsburg's opinion. [00:20:21] Speaker 02: I don't care whether someone thinks it's too broad or not. [00:20:24] Speaker 02: It's precedent. [00:20:25] Speaker 02: I don't know how you possibly get around it. [00:20:28] Speaker 02: I don't know how you get around my opinion of the Department of Navy. [00:20:31] Speaker 04: Well, I think, I'm sorry. [00:20:32] Speaker 02: Go ahead. [00:20:33] Speaker 04: I think both are distinguishable. [00:20:34] Speaker 04: I think if we are, well, I think both are distinguishable in the sense that if we're attempting to retrofit these decisions, Department of the Navy, which predated the authorities covered by doctrine, and the NTU, or the BOP case from 2011, into the authorities, [00:20:54] Speaker 04: uh... case law what the court was saying in both is that both of 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 department of the navy, the navy would exercise its right to detail employees and that some people might not like what happened that in BOP 1 the agency might the prison might change some of the positions on the roster [00:21:22] Speaker 04: People knew that in 1995 that the management was going to produce a roster and it would have some positions on it. [00:21:28] Speaker 01: Well, and one of the things in BOP that I'm just interested to know what you think about this is I was reading BOP 1, it seemed that one of the things that really animated the court was it just didn't seem like there was anything that the union was actually seeking. [00:21:41] Speaker 01: Correct. [00:21:42] Speaker 01: other than, let's get rid of the mission-critical program. [00:21:45] Speaker 01: They didn't identify impacts on the employees that could be really subject to negotiation. [00:21:50] Speaker 01: They're just like, we're gonna dig in here, we wanna negotiate about this, because we don't like it. [00:21:55] Speaker 01: And that was one of the animating aspects of BOP1. [00:21:59] Speaker 01: We're not in that situation here, as I understand it. [00:22:02] Speaker 02: How are you gonna write that opinion? [00:22:04] Speaker 02: You know exactly what I'm gonna say. [00:22:05] Speaker 02: How are you gonna write that distinction when we're thinking about what I'm talking about and contained in? [00:22:10] Speaker 02: It doesn't write. [00:22:11] Speaker 02: The contained end doctrine is you're saying if you're within the scope of this, if anything within the scope of this provision comes up, here's what I, the employer, agree to do. [00:22:24] Speaker 02: I'm going to follow these procedures. [00:22:25] Speaker 02: That's it. [00:22:25] Speaker 02: I'm not giving you anything more than that. [00:22:28] Speaker 02: And if you want more, you should have asked for it. [00:22:29] Speaker 02: For example, if it's a new context, new employees, new building, all bets are off. [00:22:35] Speaker 02: That's not what you have. [00:22:36] Speaker 02: I don't know how you write what my colleague just asked. [00:22:40] Speaker 02: How do you write that this is the union really feels strongly about this? [00:22:44] Speaker 04: So what? [00:22:45] Speaker 04: I think the distinction, Your Honor, is the point that Judge Pillard made in Judge Ginsburg's opinion in 2010. [00:22:52] Speaker 04: He stated that one of the really troubling aspects was that this arbitrator said there's no status quo anti-remedy, that essentially [00:23:00] Speaker 04: If we went back to the table, the agency would still be able to do the same thing. [00:23:04] Speaker 04: There was no obvious answer to what would be bargained over. [00:23:07] Speaker 04: Whereas here, the parties have demonstrated exactly what would be bargained over and why it was important. [00:23:11] Speaker 02: And what would happen, you're not really answering my question, but in any event, so what happens if they are made to bargain? [00:23:21] Speaker 04: I think if the authority's order is affirmed and the parties go back to the bargaining table, it is very clear what they can bargain over. [00:23:28] Speaker 04: And they would bargain over matters that were not contemplated on the table in 1998. [00:23:32] Speaker 02: No, no, I understand all of that. [00:23:33] Speaker 04: What happens? [00:23:34] Speaker 02: What happens? [00:23:35] Speaker 02: Play it all the way through. [00:23:36] Speaker 02: And the employer says, no. [00:23:38] Speaker 04: The employer says, well, then it would go to the impasses panel. [00:23:41] Speaker 04: And the impasses panel would impose an agreement if that was appropriate, which is the federal sector process. [00:23:47] Speaker 04: And I would step back to also say that I believe the Supreme Court and NEPI in 1999 and this court in 2006 both said that determining the contours of the midterm bargaining obligation is the authority's role. [00:24:00] Speaker 04: And the authority's order should be enforced if reasonable. [00:24:03] Speaker 02: Now, here's the irony is. [00:24:05] Speaker 02: I knew the answer to your question, I wanted to hear it. [00:24:08] Speaker 02: Go to the impasses panel. [00:24:10] Speaker 02: Isn't it ironic? [00:24:11] Speaker 02: In 2010, it's not a weighty agreement because the union agreed, we're not going to insist that if this fails, it goes to the impasses panel. [00:24:22] Speaker 02: Well, Your Honor, in 2010... What it does is come back to where we are now. [00:24:26] Speaker 04: Your Honor, in the settlement agreement, you're talking about the bargaining post-settlement agreement, with all due respect to opposing counsel, who said that agency counsel just came to the table and said we had an epiphany that this was covered by. [00:24:38] Speaker 04: If you read the judge's opinion, what the unfair labor 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 at reasonable times. [00:24:50] Speaker 04: changing bargaining representatives, it never once said at the bargaining table that it believed it didn't have a bargaining. [00:24:57] Speaker 01: That was after the BOP decision. [00:24:58] Speaker 04: I'm sorry, Your Honor, I believe it was, some of it was contemporaneous, some of it was before BOP. [00:25:03] Speaker 01: So what's your response to the notion? [00:25:06] Speaker 01: Sure, you say, oh, practice custom and usage, we have to interpret the agreement in light of this, look at all this practice, look at the settlement agreement, look at how everybody understood that this was impacting implementation. [00:25:15] Speaker 01: So did matter, and they say, yeah, [00:25:17] Speaker 01: You know, the background of all of that is to the extent that the law so requires. [00:25:23] Speaker 01: And once we know the law doesn't require it, that is just wiped clean. [00:25:27] Speaker 01: What's your response to that? [00:25:28] Speaker 04: Well, my understanding, Your Honor, is that that is standard language in our settlement agreements that covers times where a union might... Which is standard? [00:25:35] Speaker 04: I'm sorry, the we will bargain to impasse agreement or as far as the statute requires, because often agencies are afraid that a union might come to the table and offer a non-negotiable proposal. [00:25:47] Speaker 01: Well, they're saying, yeah, that's standard language for a reason. [00:25:51] Speaker 01: Sure. [00:25:51] Speaker 01: Many things that we put into contracts or agreements in the law is dormant and seems innocuous until it's not. [00:25:56] Speaker 01: And they're saying, this is where it's not. [00:25:58] Speaker 01: What's your response to that? [00:25:59] Speaker 04: Well, I think the response is, there are two responses. [00:26:02] Speaker 04: 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 a matter, and then [00:26:12] Speaker 04: basically pull the agreement out as a reason to say, no, we're not going to bargain in good faith. [00:26:16] Speaker 04: It seems very circular. [00:26:18] Speaker 04: Second is that that provision talking about the settlement agreement, it's a breach of the settlement agreement, isn't the violation here. [00:26:30] Speaker 04: The violation is the refusal to meet and bargain in good faith. [00:26:34] Speaker 01: No, but you're looking to the settlement agreement and to the bargaining over the 26th agreement as [00:26:40] Speaker 01: evidence of the party's practice, custom, and usage. [00:26:44] Speaker 01: And as I take it, their response to that is, fine, that was practice, custom, and usage in a different legal landscape. [00:26:50] Speaker 01: Now that we know that we didn't have to do it, we look back and we see that was effectively voluntary bargaining, because we're good people, and when we don't have to do it, we don't want to. [00:27:04] Speaker 01: And your response to that, other than, [00:27:07] Speaker 01: We still think it's legally required. [00:27:09] Speaker 01: BOP1 doesn't change that for the reasons that you said before, but how do we figure in or can we figure in the practice, custom, and usage? [00:27:22] Speaker 04: Well, I think it is, the answer is that it is one factor in many factors that are based on the record here and the hearing facts that demonstrate the practice, custom, and usage to this PRONT2 analysis. [00:27:35] Speaker 04: The prong to analysis is it is more tethered to the specific bargaining expectation at the table and whether the parties reasonably would have believed that the negotiations or matter would foreclose further bargaining. [00:27:50] Speaker 01: How do we decide whether something is? [00:27:53] Speaker 01: What is it, inseparably bound up? [00:27:59] Speaker 01: What's your test for that? [00:28:00] Speaker 01: And I'm gonna ask the other side that as well. [00:28:02] Speaker 01: It's a little vague. [00:28:03] Speaker 01: What's your best case and what's your test for what counts as inseparably bound up? [00:28:07] Speaker 04: I mean, it is a multi-factor test, Your Honor. [00:28:09] Speaker 04: I think what the, again, the authority is looking to [00:28:12] Speaker 04: If the contract explicitly doesn't address it, then how do we determine whether or not it should have a broad preemptive effect, like Judge Edwards has suggested these contracts should? [00:28:21] Speaker 04: So the authority is exercising its discretion to determine the breadth of the preemptive effect of a contract provision. [00:28:28] Speaker 04: So the authority does look, it reviews the contract language. [00:28:32] Speaker 04: It reviews other language in the contract to determine whether or not [00:28:36] Speaker 04: whether it sheds light on it. [00:28:39] Speaker 04: And it reviews the negotiating history and then how the parties have exercised the, have acted after the contract. [00:28:47] Speaker 02: Could they have filed agreements making the claim that this Article 18 doesn't cover this? [00:28:53] Speaker 04: It's unclear. [00:28:53] Speaker 04: There's nothing in the record saying this. [00:28:55] Speaker 02: This is the larger theory that we're talking about. [00:28:58] Speaker 02: Neither you nor the NLRB, the case law says, should be fooling around in the party's agreements and that you do not have that authority. [00:29:06] Speaker 02: and that the contained indoctrin is a way to try and police both you and the board. [00:29:13] Speaker 02: And the parties negotiate what they negotiate. [00:29:16] Speaker 02: And if one side says, no, you're reading this is wrong, there's a grievance procedure. [00:29:21] Speaker 02: And that's also in their agreement. [00:29:24] Speaker 02: They've agreed if they have contractual disputes, they ought to be resolving and pursuant to their contractual arrangements. [00:29:30] Speaker 02: You're writing a different thesis, which is you and the NLRB should always be able to wander in and decide what the contracts mean and if you think there's more things that ought to be negotiated that is appropriate. [00:29:42] Speaker 02: There's a lot of case law that says you're just dead wrong on that. [00:29:45] Speaker 02: That's not your responsibility. [00:29:47] Speaker 04: Well, Your Honor, I think there is a, well, I think one important distinction between the authority and the board comes out of this court's decision in Enloe Medical Center, which is an NLRB case. [00:30:00] Speaker 04: This court discussed the board, and I see I'm over my time, but if I can continue. [00:30:05] Speaker 03: As long as we're asking questions, you can talk. [00:30:07] Speaker 04: I like that. [00:30:10] Speaker 04: This court said in Enloe that the board was in treasurer's territory because it was imposing effects bargaining obligations based on contractual interpretations, and it had no business in the world of contract interpretation dealing with that. [00:30:26] Speaker 04: Exactly what you just said, Judge Edwards. [00:30:29] Speaker 04: But what it said is, it compared it to the first national maintenance context, where it said, look, this is a statutory issue of non-negotiability in the first national maintenance issue. [00:30:41] Speaker 04: So the board is on sounder footing and posing effects bargaining there. [00:30:44] Speaker 04: I think we are in that world because what Congress said in 7106 of our statute is said there are a bunch of management rights, including the management right to assign. [00:30:53] Speaker 04: There are impact and implementation bargaining rights, and authority, you sort it out. [00:30:59] Speaker 04: So you get the opportunity, you know there's going to be a contract. [00:31:02] Speaker 04: You need to figure out when impact and implementation bargaining is appropriate. [00:31:05] Speaker 03: Are you taking issue with BOP 1, then? [00:31:10] Speaker 03: Isn't that your real problem, that your argument's intention with BOP 1? [00:31:13] Speaker 03: Let me ask you to respond to this language. [00:31:16] Speaker 03: BOP 1 said Article 18, quote, covers and preempts challenges to all specific outcomes of the assignment process. [00:31:27] Speaker 03: Doesn't that address [00:31:29] Speaker 03: exactly what you're saying. [00:31:30] Speaker 03: You may not like the opioid, maybe it was too broad, but that's the law that we have to follow. [00:31:35] Speaker 03: How do you get out from under that very broad language, all specific outcomes? [00:31:42] Speaker 04: There's no question that's incredibly broad language. [00:31:44] Speaker 04: And if the court only focuses on that language, untethered to the specific matter at hand here, then it's... Now, what does that mean? [00:31:53] Speaker 04: Well, what it means is that, and I don't mean to be glib, that the authorities test analyzes each particular matter. [00:32:01] Speaker 03: But we're told all specific outcomes. [00:32:04] Speaker 02: The effects bargaining is required by Article 18. [00:32:08] Speaker 02: It says what it says. [00:32:10] Speaker 04: The effects of bargaining is required by the statute. [00:32:14] Speaker 02: No, no, that's a different context. [00:32:17] Speaker 04: So I mean, there's no question it's broad language. [00:32:21] Speaker 04: And I think the answer is that A, [00:32:24] Speaker 03: I mean, your briefing takes a lot of pot shots at BOP 1, right? [00:32:28] Speaker 03: And there's this sort of subtle suggestion that we ought to fix it, that somehow it was in error, and maybe a suggestion that we ought to fix it. [00:32:36] Speaker 04: Well, I think our brief is, obviously the authority disagreed with the outcome in BOP 1. [00:32:42] Speaker 04: But I think it is distinguishable because it is, it deals with a different exercise of the assignment power. [00:32:48] Speaker 04: The assignment power [00:32:50] Speaker 04: And the facts, the assignment power and the facts in that case were very different. [00:32:55] Speaker 03: I'm sorry, Your Honor. [00:32:55] Speaker 03: I was just checking with my colleagues to see if they had any more questions. [00:32:58] Speaker 03: I didn't mean to be rude to you. [00:32:59] Speaker 03: No, you were not. [00:33:01] Speaker 04: I mean, I think to answer your question is, and we're not suggesting or trying to take pot shots at BOP 1, I think one thing that is true about BOP 1, unlike this court's NTU decision from 2006, is that NTU methodically went through the authorities' test and applied the authorities' test. [00:33:17] Speaker 04: BOP 1 did not do that. [00:33:18] Speaker 04: And I think it's really important to recognize that the authority has developed a test over 25 years since this court's decision in the Department of the Navy, where it has applied PRONG 1 and PRONG 2 in a methodical, consistent fashion that looks at the party's reasonable expectations at the bargaining table. [00:33:35] Speaker 04: And so there is a broad language in BOP 1. [00:33:39] Speaker 04: There's no question. [00:33:41] Speaker 04: But every case needs to be taken on its own facts. [00:33:44] Speaker 04: Great. [00:33:44] Speaker 04: Thank you very much. [00:33:45] Speaker 04: Thank you. [00:33:46] Speaker 04: Appreciate it. [00:33:47] Speaker 05: Thank you, Your Honor. [00:33:59] Speaker 05: Just three very brief points in regards to that last discussion. [00:34:05] Speaker 05: BOP1 authoritatively interpreted the covered by test as applied to this provision of this barbying agreement. [00:34:14] Speaker 05: So whatever tensions there may be between the authority's test and the BOP1 decision, this is not the proper case to examine those. [00:34:25] Speaker 05: In regard to the assertion that there was a fundamental change in the working conditions by use of the consolidated relief roster, [00:34:33] Speaker 05: That's simply not true. [00:34:36] Speaker 01: Well, at the time of negotiation, a permanent transfer was the only way that an employee would be assigned from one unit to the other. [00:34:44] Speaker 01: Isn't that right? [00:34:45] Speaker 05: That's absolutely right, Your Honor. [00:34:47] Speaker 01: So the 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 [00:34:57] Speaker 01: 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 meetings, you know, all of those things. [00:35:08] Speaker 01: We have to put in there and say, if these kinds of changes happen, then we'll go back to the bargaining table. [00:35:13] Speaker 01: That's your position. [00:35:14] Speaker 05: That would certainly be one way to resolve it. [00:35:17] Speaker 05: The facts of this case, the substantive impact on the correctional officers is not significantly different than the impact in BOP 1. [00:35:28] Speaker 05: In BOP 1, the authority had found, quote, that there was a nationwide change in staffing patterns that affected virtually every bargaining unit employee. [00:35:37] Speaker 05: And the jobs being performed by officers on the relief roster [00:35:40] Speaker 03: I know you say the authority didn't rely on the safety, but that looms large here, doesn't it? [00:35:47] Speaker 03: I mean, that's a huge change to sign up and be trained for going to a low-security prison and find out that you're going to have to work in a high-security prison. [00:35:55] Speaker 03: That would affect me. [00:35:57] Speaker 05: Safety is certainly of extreme importance to the agency, Your Honor. [00:36:02] Speaker 05: the other procedures for grieving a safety issue, but also officers on the relief roster already deal with inmates of all security types. [00:36:13] Speaker 05: For instance, if you are guarding the shoe, the special housing unit, you may very well, even in a low security prison, have a higher security prisoner in the shoe because that person was segregated from other inmates at his or her own institution. [00:36:29] Speaker 05: and the changes being performed by officers on a day-to-day basis on the relief roster, one day they might be guarding at the special housing unit, one day they might be on night shift patrolling the grounds, another day they might be in a tower. [00:36:41] Speaker 05: Those are already significant differences and they're at least as large as the difference from working across the street. [00:36:47] Speaker 05: When everyone has the same training and there's the same basic procedures in place, they're given the same equipment, there's not [00:36:54] Speaker 05: I think there's a reason that the authority didn't rely on the safety impacts in its decision here. [00:37:01] Speaker 01: Mr. Walters, what's been going on with the, has this been operating satisfactorily for some time? [00:37:07] Speaker 01: What's the status quo now in terms of how these cross-institutional relief assignments are being [00:37:14] Speaker 05: My understanding is they continue to be used in the consolidated relief roster. [00:37:19] Speaker 05: And the parties did negotiate a new collective bargaining agreement that took effect in 2014 and is still in effect. [00:37:24] Speaker 05: And that, of course, is long after this all began. [00:37:27] Speaker 05: And there is nothing in that collective bargaining agreement discussing consolidated rosters, discussing inter-institutional assignments. [00:37:34] Speaker 05: The agreement is not in the record, Your Honor, but it is available publicly online. [00:37:39] Speaker 05: And again, it's not in the record, but that does seem probative. [00:37:44] Speaker 02: I guess I've forgotten that the parties have a new agreement. [00:37:47] Speaker 05: 2014 to 2017 is the date, but it has been extended up until now, much as the 1998 agreement was continually extended. [00:37:54] Speaker 02: If the authority wins here, what would the relief be? [00:37:58] Speaker 05: I'm not entirely certain, Your Honor. [00:38:01] Speaker 02: I'm not certain either. [00:38:03] Speaker 02: You've got a new agreement, go back and retroactively bargain about [00:38:08] Speaker 02: The terms of the prior agreement, I just didn't recall that the agreement had been renegotiated. [00:38:14] Speaker 05: And it does bear some similarities, I think, to the Department of Navy case, where the court made 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 those facts were covered by the agreement. [00:38:29] Speaker 05: And so it seems strange to say that merely the change in time was this positive. [00:38:35] Speaker 02: I'd like to, when we finish, I'd like to hear what the authority thinks their relief would be. [00:38:40] Speaker 02: I just didn't recall it. [00:38:42] Speaker 02: My fault. [00:38:43] Speaker 02: We're not thinking about this, but I don't understand what the relief would be, as I understand labor law. [00:38:50] Speaker 01: Is there still a live controversy? [00:38:52] Speaker 01: You know, the question that we have to ask is the question moot. [00:38:58] Speaker 05: I don't think so, Your Honor, because were the authorities' decision affirmed, I mean, it did order the parties to go bargain over inter-institutional assignments. [00:39:06] Speaker 02: With respect to the terms of a pre-existing contract. [00:39:09] Speaker 05: Right. [00:39:09] Speaker 05: I agree it would be strange relief, Your Honor. [00:39:11] Speaker 02: No, I mean, whether it is borders on jurisdiction, like my colleague says, what's here? [00:39:16] Speaker 02: I don't understand what's here. [00:39:18] Speaker 02: The authority may take on a new case with the same issue, and there may be a new fight, but I don't see how this fight's here. [00:39:28] Speaker 02: I don't know what the relief could be. [00:39:32] Speaker 05: I think, Your Honor, I mean, I need to look at the exact remedy here, but I mean, I think they could probably still be forced to return to the bargaining. [00:39:41] Speaker 01: I don't see that because the point was [00:39:46] Speaker 01: Given an agreement that didn't cover this, and the position is that reasonable negotiators at the time would think that, well, if such a change comes up, that would be subject, the authority's view is that would be, if such a change were to take place, that would be subject to impact and implementation bargaining, therefore we don't need to negotiate over it, therefore it's not, in their view, [00:40:12] Speaker 01: covered by 18G, your view after BOP1 is, oh, it is covered by New Day Dawns, New Agreement, you know, it doesn't matter what's covered by the old agreement because now they can be, you know, you all can be explicit. [00:40:30] Speaker 02: There's a new history now. [00:40:31] Speaker 02: I'm not getting it. [00:40:33] Speaker 02: I certainly want to hear from the authority because I don't know why the cases have moved. [00:40:36] Speaker 05: Yeah, that certainly makes sense, Your Honor. [00:40:38] Speaker 05: I would point out that just the terms of the order just say bargain in good faith with the union regarding the assignment of employees on the second annual relief roster. [00:40:45] Speaker 03: Why don't we hear from Mr. Jacob and give you time to come back. [00:40:48] Speaker 03: Mr. Jacob? [00:40:50] Speaker 03: The question is mootness. [00:40:53] Speaker 04: Always exciting in the Court of Appeals. [00:40:56] Speaker 04: You never know what's going to come up. [00:40:58] Speaker 04: Your Honor, I have a couple of responses. [00:41:00] Speaker 04: First, there's nothing in the record about the renegotiated agreement. [00:41:06] Speaker 02: Doesn't matter. [00:41:08] Speaker 02: We can answer that information if it goes to mootness and jurisdictional question. [00:41:12] Speaker 04: Absolutely, and I would bring up a jurisdictional question, which is that section 7123 of the statute precludes this court from considering any issues that were not brought up to the, that were not brought up to the, sorry. [00:41:24] Speaker 02: No, no, no, this is a larger jurisdiction. [00:41:26] Speaker 04: Your Honor, if I may. [00:41:27] Speaker 02: So let's get to the larger jurisdiction. [00:41:29] Speaker 04: I will bring up two points. [00:41:30] Speaker 04: One is, [00:41:32] Speaker 04: The agency obviously knew that it had renegotiated the agreement, did not bring it up to the authority while in its exceptions, did not bring it up while the exceptions were pending, did not bring it up in a motion for reconsideration after the authority's decision. [00:41:48] Speaker 04: point one. [00:41:49] Speaker 04: So on a 7123 matter which goes to this court's jurisdiction, this court cannot consider matters that were not brought up to the authority and how that would affect. [00:41:57] Speaker 01: Our concern Mr. Jacob is like a case of controversy concern. [00:42:03] Speaker 01: What is the case of controversy? [00:42:05] Speaker 04: The case of controversy is that [00:42:08] Speaker 04: Yes, there is. [00:42:09] Speaker 04: If you look at the authority's order on pages 8 through 9 of the Joint Appendix, it finds that the agency, it directs the agency to cease and desist from failing or refusing to bargain in good faith. [00:42:20] Speaker 04: The notice to employees incorporates its bad faith bargaining. [00:42:25] Speaker 04: So not just that it refused to bargain over the contract, but that it refused to come to the table. [00:42:29] Speaker 04: So for instance, we will not unreasonably delay or threaten to terminate negotiations over the assignment of employees. [00:42:34] Speaker 04: We will not cancel or place unreasonable conditions on meetings to negotiate. [00:42:38] Speaker 04: over the assignment of employees. [00:42:40] Speaker 04: So there are very specific unfair labor practices that took place during the bargaining. [00:42:45] Speaker 01: Was the negotiating for the new agreement in bad faith? [00:42:48] Speaker 01: Did they refuse to come to the bargaining table? [00:42:50] Speaker 01: I mean, I'm just not sure why a whole new chapter of bargaining and the agreement that yielded the past agreement and the infractions that [00:43:04] Speaker 01: that the ALJ found with respect to that, what live effect do they still have on the new contract or the relationship between the parties? [00:43:17] Speaker 04: There are prospective aspects of the authority's order. [00:43:20] Speaker 04: There are retrospective aspects of the authority's order. [00:43:24] Speaker 04: Prospective, the affirmative actions are to bargain in good faith. [00:43:28] Speaker 04: They also include posting this notice, which remedies the prior bad faith bargaining, which took place under the old agreement. [00:43:35] Speaker 04: It also includes [00:43:37] Speaker 04: agreeing not to engage in similar kinds of delaying tactics and placing unreasonable conditions on bargaining in the future. [00:43:49] Speaker 04: So there are prior bad acts that need to be remedied. [00:43:55] Speaker 04: and that the authority's order goes to remedy. [00:43:57] Speaker 04: It's not only go sit down at the table. [00:44:00] Speaker 04: Now, I have not read the new agreement. [00:44:02] Speaker 04: I don't know what the terms of the new agreement look like because the agency didn't put it in the record, and this is the first time on rebuttal that it has brought this information to either the attention of the authority or to this court. [00:44:13] Speaker 04: That said, I certainly would appreciate the court's opportunity if the court thinks there's a live issue about case of controversy to go back to our offices and brief the court on it. [00:44:26] Speaker 04: Like I said, my initial instinct is that there are prior bad acts that are remedied in this order, and that certainly prospective bargaining over impact implementation of this assignment still has not yet been done. [00:44:40] Speaker 01: And what's the status of it? [00:44:41] Speaker 01: I mean, this order was in place. [00:44:44] Speaker 01: But pending appeal to us, I mean, did these employees get notice, or? [00:44:50] Speaker 04: I don't believe the agency has complied with the authority's order. [00:44:54] Speaker 01: And that's the standard, that they won't comply with it if there's a- I mean, I think the authority- How do you know? [00:45:01] Speaker 02: They just negotiated a new contract. [00:45:04] Speaker 04: Well, covering this matter. [00:45:05] Speaker 04: My understanding is, I believe our regional office is in charge of affecting compliance with unfair labor practice findings. [00:45:13] Speaker 04: If there had been a notice posting, presumably we would have found out. [00:45:19] Speaker 04: So my understanding, I think, is a typical practice when an agency files a petition for review of an authority order. [00:45:25] Speaker 04: The authority will put compliance in advance until the court has had an opportunity to speak to that matter. [00:45:31] Speaker 02: No, what I'm trying to say is that one of your concerns is what they're going to do in the future. [00:45:36] Speaker 02: They bargained a good faith in the future. [00:45:37] Speaker 02: They came to a new agreement. [00:45:39] Speaker 02: No one's suggesting that their bargaining there was impermissible. [00:45:44] Speaker 02: The union hasn't raised any... So what's there left to worry with? [00:45:48] Speaker 02: You're saying you're worrying about the future effects. [00:45:51] Speaker 02: They went ahead and bargained as the law required, and they reached a new agreement over this matter. [00:45:58] Speaker 04: I can't speak to that, Your Honor. [00:46:00] Speaker 04: We're speculating what happened on the table. [00:46:01] Speaker 04: We're speculating what the contract looks like. [00:46:04] Speaker 04: All I can say is that, like I said, there was prior bad acts that this order also remedies and that the employees of BOP should know the agency will not commit again. [00:46:12] Speaker 04: Mr. Walters, you want to? [00:46:14] Speaker 03: Thank you very much, Mr. Jacobs. [00:46:18] Speaker 03: What should we do? [00:46:19] Speaker 03: What should we do? [00:46:21] Speaker 05: Well, I wanted to offer your honors that if it would be helpful to have supplemental briefing on this issue, we'd be happy to submit that to the course. [00:46:29] Speaker 03: We'll discuss it in our conference. [00:46:32] Speaker 05: Absolutely, Your Honor. [00:46:33] Speaker 05: Otherwise, oh, and I also wanted to apologize for not having brought the 2014 agreement to the attention of the Court. [00:46:39] Speaker 05: I hadn't realized it at the time. [00:46:40] Speaker 03: Hadn't realized what? [00:46:42] Speaker 05: That the 2014 agreement was in effect at the time. [00:46:47] Speaker 02: You didn't realize it either? [00:46:50] Speaker 05: No. [00:46:50] Speaker 02: What are you all doing? [00:46:52] Speaker 02: That's really strange. [00:46:55] Speaker 05: Well, we were working with a record that was... Thank you, Your Honor. [00:46:59] Speaker 02: I just couldn't resist.