The Arbitrator found that the Agency violated several provisions of the CBA, including Supplement 3, when it unilaterally changed the telework policy for the entire unit. Id. at 73. In making this determination, the Arbitrator noted that Supplement 3, Article 2 allows the Agency to terminate telework agreements in “unusual circumstances.” Id. at 57. However, he found that Supplement 3, Article 2 applies only to the termination of such agreements on an individual basis, and does not apply to the Agency’s “wholesale” termination of all unit employees’ telework agreements. Id. at 57, 75. In this connection, the Arbitrator reasoned that Supplement 3, Article 2 must be interpreted within the context of the entire Supplement, which addresses telework requests considered on an individual basis. Id. at 75.
There is no indication in the record that the Agency argued to the Arbitrator that awarding the travel-expenses remedy would be inappropriate. Moreover, the Agency could have done so because the Union requested this remedy before the Arbitrator, Award at 28, and there is no claim or basis for finding that the Agency did not have an opportunity to respond to that request. Because the Agency could have challenged this remedy before the Arbitrator, but did not do so, we dismiss this exception under § 2429.5.
The Agency’s nonfact exception challenges the Arbitrator’s findings that the Agency’s failure to bargain violated the Statute and the CBA. This challenges, respectively, the Arbitrator’s legal conclusion and his interpretation of the CBA. Consistent with the above, such challenges do not provide a basis for finding that the award is based on a nonfact. See id; AFGE, 59 FLRA at 904. Accordingly, we deny this exception.
The Agency’s public policy exception claims that the award is inconsistent with the “covered by” doctrine. However, the “covered by” doctrine is a defense to a statutory duty to bargain; it does not apply as a defense to a contractual obligation to bargain, and, thus, the Arbitrator’s finding of a contractual violation does not conflict with the doctrine. U.S. Dep’t of Def., Nat’l Guard Bureau, Adjutant Gen., Kan., Nat’l Guard, 57 FLRA 934, 936-37 (2002) (Nat’l Guard). With regard to the Arbitrator’s separate finding of a statutory failure to bargain, the Authority has declined to find a matter “covered by” an agreement where the agreement specifically contemplates bargaining. See U.S. Dep’t of Energy, W. Area Power Admin., Golden, Colo., 56 FLRA 9, 12 (2000) (DOE). As the Arbitrator found that the CBA specifically contemplated bargaining, there is no basis for concluding that the finding of a statutory violation conflicts with the “covered by” doctrine. For these reasons, even assuming that the “covered by” doctrine is an “explicit,” “well-defined,” and “dominant” public policy, the Agency has not “clearly shown” a violation of such policy. See Nat’l Guard, 57 FLRA at 936-37; DOE, 56 FLRA at 12.