The next LMR forum meeting took place on November 17, 2010. (Tr. 58). At the meeting, the Union was represented by Richmond and Union vice president Richard Logan, among others. (Tr. 57). Management was represented at the meeting by Associate Warden Jeff Bowe and Human Resources Manager Scott Clarkson. (Id.). At the meeting, the parties negotiated over the proposals in the Union’s November 5 email and initialed next to individual proposals to indicate either agreement or failure to reach agreement concerning each proposal. (Jt. Ex. 5).  The resulting agreement (2010 agreement), consists of three provisions. (Id.). First, although the document is somewhat unclear on this point, the parties agreed that the Respondent would no longer exempt Human Resources from the augmentation rotation. (Jt. Ex. 5; G.C. Ex. 2; Tr. 69-70, 174-75, 455, 463-64, 488-89). The second provision states: “Every attempt should be made to fill all posts on the Correctional Services Roster prior to Augmentation by means of utilizing the overtime list and then seeking list exempt voluntary overtime. Other posts may also become unassigned prior to the beginning of each shift and should be filled in the same manner.” (Jt. Ex. 5). Third, the parties agreed that the Respondent would staff prisoners’ medical trips using overtime.  (Id.). 

 

            Before reaching agreement, Bowe and Clarkson discussed each provision with Warden Sherrod, and Sherrod authorized Bowe to sign the agreement on behalf of the Respondent. (Tr. 323, 441-42, 452, 467, 475-76, 496). Next to each provision, Richmond and Bowe initialed their agreement on behalf of the Union and Respondent respectively. (Jt. Ex. 5; Tr. 60, 174, 323). In addition, Bowe memorialized the terms of the agreement in an email he sent to the captains of the correctional services department, all of the lieutenants, and Richmond on December 22, 2010. (G.C. Ex. 2; Tr. 67, 71, 463-66).  The email stated that the procedures described therein “have been agreed to and need to be followed when augmenting staff.” (G.C. Ex. 2).  Bowe also recalls sharing the terms of the 2010 agreement with the executive staff at a meeting around the same time.  (Tr. 465-66).

            Regarding the second provision, there was a variety of testimony about the parties’ intentions concerning the Respondent’s contractual obligation to make “every attempt” to fill custody posts with overtime before resorting to augmentation. (Jt. Ex. 5). Testifying on behalf of the Respondent, Warden Sherrod said that this language meant that the Respondent would “attempt” to offer overtime in lieu of augmentation “when possible,” but that the Respondent would need to consider each vacant post and determine the “most effective and efficient” way to fill that post. (Tr. 298-99). This would involve him monitoring vacancies on the rosters, considering staffing levels and budgetary constraints, and deciding where and when overtime resources could be allocated. (Tr. 325). Bowe testified that the second provision meant “[t]hat we would make every attempt possible to fill those posts during day watch in lieu of augmentation by using overtime if the money was available in the budget to do so.” (Tr. 448). However, Bowe admitted that the agreement does not specifically discuss budgetary constraints. (Id.). Clarkson testified that he understood the second provision to mean that, when a post was vacant, the lieutenant would contact the captain, who would contact the associate warden, and the associate warden would determine if the Respondent would pay overtime or augment. (Tr. 497). 

 

            Richmond’s testimony on behalf of the General Counsel varied on the requirements of the provision, but he clearly stated that “if no effort is made, then the spirit of the agreement is gone.” (Tr. 110). Similarly, Logan testified that the spirit of the parties’ agreement was to slow augmentation down, and that compliance would require some kind of attempt to offer overtime, even if the Respondent ultimately decided to augment. (Tr. 171‑72, 228, 236-37). 

            Focusing on the cumulative testimony of the relevant witnesses, I find that the parties did not intend that the second provision of the 2010 agreement require the Respondent to offer overtime before it could augment. (Tr. 130-31, 234-36, 305-06, 499‑500). In this regard, Sherrod testified unambiguously that management retained the right to decide whether to offer overtime under the 2010 agreement (Tr. 305-06), and nothing in Bowe’s testimony indicated otherwise. Although Clarkson initially testified that the agreement required the Respondent to offer overtime before augmenting (Tr. 499), he later clarified that the Respondent had agreed to offer overtime “if it was within our overtime budget [.] . . .” (Tr. 499-500).  Similarly, although Richmond and Logan occasionally implied at the hearing that the Respondent had agreed to seek overtime volunteers before augmenting (Tr. 71, 214), they also testified that the agreement did not require the Respondent to offer overtime before augmenting. (Tr. 109-11, 130-33, 230, 234-36). That the Union understood at the bargaining table that the agreement did not require the Respondent to offer overtime before augmenting is corroborated by Richmond’s testimony that the Union could not require the Respondent to offer overtime. (Tr. 130, 132-33).  Thus, I find that the weight of the evidence establishes that the parties intended the second provision of the 2010 agreement to require the Respondent to make a good faith effort to offer overtime before resorting to augmentation. But the parties did not intend for that provision to constitute an absolute requirement that the Respondent offer overtime before augmenting.

                       

            Although the precise timeline is unclear, it appears that the Respondent complied with the second provision of the 2010 agreement to the satisfaction of the Union for approximately two weeks. (Tr. 66, 73, 120, 277). In January 2011, Bowe informed Logan that the Respondent would need to augment ten non-custody staff during annual refresher training when many custody staff would be unavailable. (Tr. 176, 214-15. 230-32). After that point, the Respondent frequently augmented and never again discussed its decisions to augment with the Union prior to the utilization of augmentation. (Tr. 232-33).

            Captain James Cartrette testified that he was also at this meeting, and that the concept that managers should protect taxpayers’ money by limiting overtime and augmenting instead was frequently discussed. (Tr. 507-09). As a result, Cartrette testified that he never offered – or even considered offering – overtime on weekday day watch shifts because it was his understanding that doing so was “not an option for [him].” (Tr. 509).  Captain Tony Wingo testified that the Respondent had an “established procedure” of augmenting weekday day watch “as a method to prevent overtime for your budget.” (Tr. 378-79). Wingo did not direct his staff to comply with the second provision of the 2010 agreement (Tr. 383), and had no knowledge of his staff ever attempting to comply with that provision (Tr. 392-93). Associate Warden Carlos Rivera testified that he only became aware of the 2010 agreement when he was tasked with participating in LMR forum meetings in approximately June 2011. (Tr. 399, 402-03, 428). Rivera also testified that it was his impression that the Respondent was not complying with the second provision of the 2010 agreement. (Tr. 413). Ricardo Martinez became complex warden in September 2011, but only became aware of the 2010 agreement when the Respondent began preparing for this case. (Tr. 524). Martinez also testified that he used augmentation to reduce overtime spending by making every effort to augment on weekday day watch shifts. (Tr. 527-28, 530, 539).

 

            The testimony of these managers is consistent with the testimony of Union witnesses that the Respondent consistently augmented on weekday day watch shifts without contemplating let alone offering overtime during that time period. (Tr. 37-38, 187-89, 232-33, 277-78). For example, Logan testified that by comparing overtime rosters and the corresponding daily assignment rosters, he could determine whether the Respondent offered overtime on each shift where the Respondent augmented. (Tr. 176‑84). Using this process, he identified over 1,000 instances when the Respondent augmented without offering overtime. (Tr. 184).

            In January 2011, the Union started filing grievances concerning each non-custody employee who was augmented and the corresponding custody employee on the overtime roster who was not offered overtime as a result. (Jt. Ex. 9; Tr. 79-80, 176, 185, 211-12, 235).  These thirty-two grievances allege a total of forty-six violations of the 2010 agreement because the Respondent made “no attempt . . . to fill [the augmented] post utilizing the overtime list.” (Jt. Ex. 9). On May 5, 2011, after the Union had begun filing the ULP charges discussed below, the Union filed a request with Human Resources to withdraw the grievances. (Jt. Ex. 10; Tr. 235-36, 485).

 

            Beginning on March 7, 2011, and continuing until October 6, 2011, the Union filed a series of ULP charges alleging that the Respondent violated the 2010 agreement, the parties’ collective bargaining agreement, and § 7116(a)(1) and (5) of the Statute when it augmented non-custody staff “without any attempts to utilize the Overtime Roster” on dates from February to September 2011. (Jt. Ex. 1(a)(1)-(11), (14)-(21)). Beginning with the ULP filed on July 28, 2011, these ULP charges specifically stated that the Respondent’s actions constituted “a complete repudiation” of the 2010 agreement. (Jt. Ex. 1(a)(10)-(11), (14)-(21)). 

 

            The Respondent’s exemption of Human Resources from the augmentation rotation is also at issue in this case. Pursuant to the 2010 agreement, the Respondent returned Human Resources to the augmentation rotation in approximately November or December of 2010. (G.C. Ex. 2; Tr. 175, 464-66, 488-89). However, in a July 25, 2011, memorandum, Human Resources Manager Clarkson and Associate Warden Rivera asked Warden Sherrod to remove Human Resources from the augmentation roster “until further notice[ ]” in order to facilitate the department’s efforts to increase hiring. (Jt. Ex. 6; Tr. 419, 488-90). Warden Sherrod granted the request and the Respondent removed Human Resources from the augmentation rotation. (Jt. Ex. 6; Tr. 73, 175, 314-16, 419). Shortly after Warden Martinez replaced Sherrod as complex warden, Clarkson and Rivera submitted a nearly identical memorandum to Martinez on October 4, 2011. (Jt. Ex. 7). Clarkson and Rivera never consulted with the Union concerning these memoranda (Tr. 489), and the Union never agreed that the Respondent could exempt Human Resources from the augmentation rotation. (Tr. 82- 83). According to Clarkson, the Respondent returned Human Resources to the augmentation rotation in approximately January or February 2012. (Tr. 478). On August 11, 2011, the Union filed a ULP alleging that by exempting the Human Resources department from the augmentation rotation, pursuant to the July 25, 2011, memorandum, the Respondent violated the 2008 and 2010 agreements, the parties’ collective bargaining agreement, and § 7116(a)(5), (7) and (8) of the Statute. (Jt. Ex. 1(a)(12); Tr. 83-85).

           

 

 

            Regarding the merits of the consolidated complaint, the General Counsel makes two arguments in support of its contention that the Respondent violated 5 U.S.C. § 7116(a)(1) and (5) by repudiating the 2008 and 2010 agreements. First, the General Counsel argues that the Respondent’s admissions – in its Answer to Amended Complaint – that it repudiated the agreements should be given dispositive weight. The General Counsel argues that the Authority has held that a judge may not ignore a Respondent’s admissions. U.S. Dep’t of the Air Force, AFMC, Wright-Patterson AFB, Ohio, 55 FLRA 968 (1999) (Wright‑Patterson). Thus, the General Counsel argues that the Respondent’s admissions provide a sufficient basis to support a finding that the Respondent committed the alleged violations. 

 

            In addition, the General Counsel argues that the Respondent repudiated both the 2008 and 2010 agreements when it unilaterally exempted Human Resources from the augmentation rotation. Regarding the 2008 agreement, the General Counsel asserts that the Respondent’s exemption of Human Resources from the augmentation rotation, despite the parties’ intention for the agreement to spread augmentation among as many departments as possible, constituted repudiation. As for the 2010 agreement, the General Counsel emphasizes that the parties specifically agreed that the Respondent would return Human Resources to the augmentation rotation. Therefore, the General Counsel asserts that the Respondent’s unilateral written exemption of Human Resources from the augmentation rotation “until further notice” amounted to a “clear and patent” breach. And, because a central tenet of the 2010 agreement was the fair distribution of augmentation among non‑custody staff, including Human Resources employees, the General Counsel argues that the Respondent’s breach went to “the heart of the agreement.”

 

            In addition, the General Counsel claims that the Respondent’s asserted defenses are without merit. In particular, the General Counsel argues that the 2010 agreement does not conflict with the Respondent’s management rights under § 7106 of the Statute because the Respondent retains the right to augment rather than offering overtime under the agreement. Similarly, to the extent that the Respondent argues that it was not bound by the 2010 agreement because it conflicts with the parties’ collective bargaining agreement, the General Counsel asserts that there is no such conflict. Further, the General Counsel argues that the Respondent’s asserted “covered by” defense is inapplicable in the repudiation context.

 

 

            First, the Respondent asserts that the 2010 agreement is not enforceable because there was no meeting of the minds regarding the meaning of the second provision. In particular, the Respondent asserts that the Union intended the provision to require the Respondent to offer overtime before augmenting.

 

 

            In determining whether a ULP and grievance advance “substantially similar” legal theories for purposes of § 7116(d), “the Authority has drawn a clear distinction between legal theories supporting allegations of statutory violations and allegations of contract violations.” DOL, 59 FLRA at 115) (emphasis added). In particular, the Authority has held that a grievance alleging contract violation and a ULP alleging contract repudiation are notsubstantially similar for purposes of § 7116(d).  (Id. at 116-17). Although a contract breach is an element of both of these theories, the Authority has explained that merely showing a breach is not sufficient to establish repudiation under the Statute. (Id. at 116). Rather, to establish repudiation, the breach must be of a specific type – clear and patent – and the contract provision must be of a specific type – one that goes to the heart of the parties’ agreement. (Id.). Because repudiation is a statutory violation, and because proving repudiation requires establishing significant additional elements besides a mere contractual violation, the Authority has held that the two theories are “fundamentally different[ ]” for purposes of § 7116(d). (Id.).

            The General Counsel argues that the Respondent’s admission that it repudiated the 2008 and 2010 agreements set forth in its Answer to Amended Complaint should be given dispositive weight. In this regard, the General Counsel argues that the Authority has held that a judge may not ignore a Respondent’s admissions. Wright-Patterson, 55 FLRA at 970-71. Although the Authority held in Wright-Patterson that a judge must address parties’ admissions, this does not equate to a requirement that a judge is bound to give such admissions dispositive weight. Although I do not ignore the Respondent’s admissions and my ultimate findings are consistent with those admissions, I will nevertheless explain why I find that the Respondent’s actions violated the Statute even if the admissions were not considered.

            As discussed above, the record is replete with evidence that, from sometime in January 2011 until sometime in February or March 2012, the Respondent with the exception of medical trips, failed to offer overtime prior to augmenting and unilaterally adopted a policy of using augmentation by default during day watch shifts, Monday through Friday. (Jt. Ex. 8; Tr. 37-38, 151, 176-84, 187-89, 200, 232-33, 277-78, 347, 361, 378-79, 393, 436, 440-44, 503, 506-07, 509, 527-28, 530, 539). Union witnesses also testified that the Respondent consistently augmented on weekday day watch shifts without first offering overtime. (Tr. 37-38, 187-89, 232-33, 277‑78). For example, Logan testified that by comparing overtime rosters and the corresponding daily assignment rosters, he could identify over 1,000 instances when the Respondent augmented without offering overtime. (Tr. 176‑84).

 

            However, even if the Respondent’s overtime funding would have permitted it to offer overtime on occasions when it augmented, the 2010 agreement preserved the Respondent’s discretion to decide whether to augment in those circumstances. What is important for purposes of the 2010 agreement is whether the Respondent made any effort to offer overtime, that is, whether the Respondent made individualized determinations about whether to augment to fill a particular vacancy. This, the record clearly establishes, the Respondent did not do. In this regard, the Respondent did not offer evidence that managers considered whether they could afford to offer overtime on a day-by-day, or even pay-period-by-pay-period basis. Rather, the Respondent’s directive to managers was to cut overtime costs by always augmenting on weekday day watch shifts, and managers understood that offering overtime on those shifts was “not an option for [them].” (Tr. 509). And the Respondent communicated this breach of the second provision of the 2010 agreement to the Union both by its actions, and by its statements to Union representatives that it would not be offering overtime before augmenting on weekday day watch shifts. (Tr. 73-74, 76, 85-86, 118, 127, 184, 187, 228‑29, 457, 467-68, 523).

 

 

            With respect to the second prong of the repudiation test, Warden Keffer, who signed the 2008 agreement on behalf of the Respondent, acknowledged that the intention of the agreement was to “includ[e] as many people in the augmentation [rotation] as possible to lessen the amount of impact” of augmentation. (Tr. 368). To achieve this result, the parties included as many departments as possible in the augmentation rotation. (Id.). Similarly, as discussed above, the 2010 agreement was intended to decrease the adverse impact of augmentation on employees, and one of the parties’ tools for accomplishing this goal was to spread augmentation among as many non-custody departments as possible, including Human Resources. Because the breached provisions of the 2008 and 2010 agreements were central to the agreements’ shared goal of decreasing the impact of augmentation by minimizing the number of times a given employee would be augmented, I find that the Respondent’s breach of these provisions goes to the heart of the parties’ agreements for purposes of the second prong of the Authority’s repudiation test.

            Similarly, the Respondent argues that an interpretation of the 2010 agreement that does not permit the Respondent to make individualized determinations regarding overtime is unenforceable because it violates the parties’ collective bargaining agreement.^[3] However, because I find that the Respondent retains its right to make individualized determinations regarding overtime under the 2010 agreement, the Respondent’s argument is inapposite.

 

 

            The Respondent argues that the complaint is “covered by” Article 18 of the parties’ collective bargaining agreement because Article 18 “preempts” all challenges to the overtime assignment process. The “covered by” defense is available to a party claiming that it is not obligated to bargain because it has already bargained over the subject at issue. U.S. Dep’t of Energy, W. Area Power Admin., Golden, Colo., 56 FLRA 9, 12 (2000). However, “the ‘covered by’ defense does not apply to allegations that an agency repudiated a collective bargaining agreement.” U.S. Dep’t of the Treasury, IRS, Plantation, Fla., 64 FLRA 777, 780 (2010). Thus, the Respondent’s asserted “covered by” defense is inapplicable here.

 

            Regarding the first requirement, “the Authority has expressly ruled that employees have been affected by an unjustified or unwarranted personnel action ‘when it is determined that [employees] w[ere] affected by an unfair labor practice under the Statute.’” (Id.)  (quoting FAA, Wash., D.C., 27 FLRA 230, 232‑33 (1987)). Thus, I find that the first requirement under the Back Pay Act is met here. 

            As discussed above, the Respondent repudiated the 2010 agreement by failing to make a good faith effort – or any effort whatsoever – to offer overtime before resorting to augmentation. However, the 2010 agreement did not require the Respondent to offer overtime before augmenting on any particular shift, let alone on every shift when the Respondent chose to augment. Thus, the General Counsel takes the inconsistent position that although the 2010 agreement did not require the Respondent to offer overtime before augmenting, the Respondent’s compliance with the 2010 agreement as reconstructed in an award of backpay would have included an offer of overtime for every post on every shift that the Respondent augmented. In short, the General Counsel seeks as a remedy for repudiation, a result that the Union could not achieve in bargaining the agreement that was repudiated. Even the Union concedes that it could not have negotiated a mandatory offer of overtime prior to any use of augmentation, thus, a remedy that assumes such a result exceeds the bounds of any possible agreement and the causal connection requirement of the Back Pay Act does not permit such a result.

 

            Moreover, even if the record permitted me to ascertain which day shifts or mandatory custody positions the Respondent would have staffed using overtime “but for” its repudiation, the evidence in this case demonstrates that employees on the overtime roster sometimes decline the opportunity to work overtime. (Tr. 157, 221-22, 226-27, 245). For example, Logan testified that an employee may sign the roster with the intention to volunteer for an overtime shift, but that for “a multitude of reasons” an employee might actually decline the shift if offered. (Tr. 157). And Logan also testified that he had witnessed situations wherein a manager sought to fill a post with a volunteer from the overtime roster, called every volunteer on the roster, was turned down by all volunteers, and was forced to fill the post by assigning mandatory overtime. (Tr. 226-27). Thus, the evidence in the record does not support the General Counsel’s assertion that, on every shift where the Respondent chose to augment, the most senior employee on the overtime roster would have accepted an opportunity to work overtime, if offered. As a result, determining after the fact which employees would have worked which overtime shifts, especially when those decisions would also be impacted by the choices of other employees on the volunteer overtime roster, would be an exercise in total speculation that is not permitted by the Back Pay Act. SSA Balt., 37 FLRA at 292.

 

 

            The General Counsel introduced evidence at the hearing that bargaining unit employees check their email daily (Tr. 87, 201, 261, 280), and referred to examples of email communications between the Respondent and employees (G.C. Ex. 3; Tr. 88-89, 262, 280). However, the General Counsel’s witnesses also acknowledged that the Respondent uses bulletin boards to post certain types of documents and that employees have access to those bulletin boards. (Tr. 90, 202, 262, 280). In addition, Logan testified that employees in certain posts, such as the towers and mobile units, do not have access to computers at their posts and would have to check their email on their own time. (Tr. 201-02).

 

            The General Counsel states that it is notseeking email notice distribution as an “extraordinary remedy” or claiming that its request for email notice is “warranted by extraordinary circumstances . . . .” (G.C. Br. at 36). Rather, the General Counsel argues that email distribution is appropriate under the Statute and Authority doctrine. (Id.). However, I find that the General Counsel did not introduce sufficient evidence to support its contention that posting to traditional bulletin boards would not adequately redress the wrong or sufficiently effectuate the purposes and policies of the Statute. Given the evidence in the record that the Respondent uses email and bulletin boards to communicate with agents, the findings mandated in the F.E. Warren AFB case cannot be made under the evidence in the record. Therefore, ordering a nontraditional remedy is not appropriate in this case.