Search:

Custom Search

Readers' Comments

Total Comments: 8
Page 1 of 1

The FLRA's "Covered-By" Cover-Up (Part Two)

really?

Attorney
A big one
Fri Nov 13, 2009 9:41 AM

Post Reply

You stated...."The D.C Circuit continues to push the "covered-by" doctrine because it sees it as the path to "stability and repose" in the collective bargaining relationship. But, in reality, it has triggered a tsunami of litigation. When I searched www.feds.com for the keyword combination of "covered-by" and "47 FLRA 1004," it identified over 100 FLRA/FSIP decisions since 1993 in which those terms were involved. So much for stability and repose."

100 decision in 19 years. By my math that is just over 5 cases a year during that time period. How exactly is that a "tsunami" of litigation. While it is clear you are arguing your point from a decidedly union point-of-view, it is hard to believe that anyone would consider this a tsunami of litigation. I can equally guarantee you that if we go to a unmistakeable waiver standard, we will easily have at least 5 cases litigated per year on the topic. So by your standard this is a tsunami and therefore there is no reason to switch.

Covered-By Doctrine

Labor Relations Specialist
Federal Aviation Administration
Fri Nov 13, 2009 11:10 AM

Post Reply

Arguing that the private sector case law should apply to the feds ignores a significant difference in the 2 environments. Waiver and zipper clauses are common in the private sector. There are no mandatory, permissive and prohibited subjects of bargainging in the private sector, everything is on the table. If management insists on a waiver clause, the union must decide if they are willing to strike to avoid it. Would members vote to strike over a waiver...I doubt it. For federal unions, a proposal to waive bargaining rights is a permissive topic; they can flat out refuse to bargain over it and management cannot force the issue to impasse. The covered by doctrine simply levels the playing field.

Mr. Ferris' argument relies heavily on the difficulty of applying the doctrine. Labor relations is a field in which ambiguity is the norm. Practitioners who find that uncomfortable should find other work.

Re: Covered-By Doctrine

Retired
IRS
Sat Nov 14, 2009 7:27 AM
It never ceases to amaze me when an inteligent, thoughtful comment is followed up by juvenile, snarky insult!? LRS, you should be more professional and adult when in the public eye, especially when presenting your position. I expect this type of behavior from "Attorney, A big one' . You are better than this.

Re: Covered-By Doctrine

Labor Relations Specialist
Federal Aviation Administration
Mon Nov 16, 2009 12:38 PM
Snarky?! I'll have to Google that to see whether I feel offended. If my comment was taken as an insult toward Frank Ferris, I want to clarify that such was not my intent. I have a great deal of respect for Mr. Ferris. I only intended to counter his argument that practitioners are too confused by the lack of clarity in the covered-by doctrine. We deal with many ambiguous legal and contractual standards every day. It's a big part of what I like about the labor relations field. Relationships cannot and should not be regulated with precision.

Re: Covered-By Doctrine

analyst
dod
Mon Nov 16, 2009 6:42 PM
Retired, please tell us you're kidding. The comment by LRS is neither snarky nor juvenile.

Ferris argues toward an efficient solution.

Union VP
DOJ
Fri Nov 13, 2009 12:55 PM

Post Reply

It's interesting how the "efficiency of the service" mantra (which necessary includes saving taxpayer money through decreased litigation) flies right out the window with the management side when they perceive a threat to their maneuvering ability.

Mr. Ferris points to an underlying "inefficiency through confusion" that may, if corrected at FLRA, result in less litigation but also sets the stage for genuine problem solving at the table where it belongs.

Apparently, when the proposed innovation would hobble an Agency's ability to take gambles at taxpayer expense, the priority is no longer efficiency - but the author's temperament? (Referring to LRA-FAA's parting jab.)

As John Stossel would say, "Give me a break."

The FLRA's Covered-by Part 2

HR
Federal
Mon Nov 16, 2009 12:23 PM

Post Reply

Mr. Farris states that "All agreements must be in writing and all agreements are subject to agency head approval, but if the matter is "inseparably bound up with something in the contract" that agreement need not be put in writing nor submitted for approval. "

Actually, they don't need to be put in writing. 5 USC 7103 (a) (12) states ".... execute, if requested by either party, a written document incorporating a collective bargaining agreement reached.."

This is an example of an "expert" expertly ignoring the clear language of the statute and putting his own spin in motion. If an "expert" is going to propound his theory, at least get the basics correct. Helps the credibility.

C'mon Guys...

Labor Relations Specialist
Federal
Tue Feb 9, 2010 11:38 PM

Post Reply

You are so hung up on the concepts of Ferris that you overlook the most important aspect of successful negotiations. Relationships and leverage. From a labor point of view, waivers and zippers are non starters. However by defining the issues that are most troubling, like covered-by & particularized to name 2, then bargaining moves forward and the gladiator sport of litigation is minimized if not avoided. Labor Relations is about relationships. Work that angle and you'll be fine.

Total Comments: 8
Page 1 of 1

Add a Comment about this Article

** All fields are required.
Note: Your comments will not show up right away. FedSmith.com selects the most insightful comments from our readers for posting. If selected, your comments will show up in the comments section after they have been reviewed and approved. See our terms of use for more information.