Working with the "Covered By" Doctrine: Making Management's Obligations in Federal Labor Relations a Little Lighter
By Bob Gilson
Sunday, December 7, 2008
The Federal Labor Relations Authority's "Covered By" Doctrine has two components. The Office of Personnel Management, in a 2002 Advisory to Agencies, laid out in plain English the FLRA's use of "two prongs" to decide whether agencies had a duty to bargain over an issue during the life of an agreement.
To Quote OPM, they are, first, that "the FLRA attempts to determine whether the express language of the contract "reasonably encompasses the subject in dispute." Second, "whether the subject in dispute is "inseparably bound up with" and thus an "aspect" of a subject expressly covered by the contract." In essence, if "Covered By" applies, then Agencies are off the hook on negotiations on a subject during the life of the contract.
As I travel around and conduct training for practitioners and managers, I find that this doctrine and its benefits are at best, poorly understood, and, as a result, rarely utilized. So I ask, are you still bargaining a lot of impact and implementation (I&I)? Answer, yes. Then, are you happy about it? Answer, no. So I point out the relevant cases and ask, what now? The answer is that most I&I is a pain in the neck, in which lots of time is spent and little benefit derived except in more use of official time. Every Federal manager who I've spoken with about this asks me, you're kidding, right? When I say no, their question is one I can't answer, Why wasn't I told about this?
So What To Do With This Windfall?
There are some obvious and maybe not so obvious effects. Whenever I've heard a union representative address this, the position is usually that all this Doctrine will do is force unions to negotiate more comprehensive contracts. This may come as a big surprise to some of the readers of my articles, but I couldn't agree more. I suggest to agency management that big, fat comprehensive agreements are exactly what you want.
Comprehensive Agreements, Pros and Cons
Traditional wisdom in Federal labor relations holds that the slimmer the contract, the better. This likely arises from a management desire to retain flexibility to respond to changing mission requirements, funding or even new leadership. While that might have been true in the early days of the program, the scourge of endless, change preventing, and costly I&I bargaining should certainly have worn away that old thinking. Others have said that negotiating a term contract is just as painful but only occurs every three to five years or more. These folks would probably challenge this article as suggesting dragging out such negotiations even further.
So I ask naysayers, which is the greater punishment? Literally hundreds of I&I sessions going on endlessly or one term contract that nails down the day to day stuff once and for all. I can probably make my case with managers by addressing only one issue. Who's life would be easier if there was an article on space moves in the contract that, once agreed on, closed the issue?
Effect on Labor Relations
In the private sector, unions generally stay out of running the business and leave that to corporate management. There are exceptions involving companies in trouble, which come together with their unions to save the enterprise. But these cases are the exception not the rule. Because these situations are front page news, many people believe them to be the way labor relations works or should work. Sad, but true.
In fact, the labor relations model that inspired the Wagner Act was one in which the company acted to make a profit and the unions zealously protected and policed the terms of a binding contract that guaranteed workers rights within those actions.
This article's purpose is not to suggest doing away with labor management relationships that encourage idea sharing and the obligation of an agency to listen to the voice of its employees. But some Federal unions' focus on litigation and unanticipated expansion of the statute brought them this doctrine.
Bargaining working conditions as the statute intends, using bilateral grievance procedures and binding arbitration to enforce them will provide stability and productive relationships. What do you think?
Any opinion stated above is mine and mine alone.
© 2010 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.
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