Ten Points Agencies Should Consider After the New “Covered By” Decision

The author suggests ten considerations for Agencies following the DC Circuit’s landmark decision defining the “Covered By” doctrine as foreclosing bargaining topics disposed of when the collective bargaining agreement between the parties was negotiated. Whether agency leadership knows enough to take advantage of the decision and whether its politicos will intervene to favor the union is an unanswered question.

Recently, we reported the DC Circuit Decision slapping down FLRA’s interpretation of the “Covered By” doctrine. Agencies clearly have an opportunity to
benefit from this decision by avoiding the delay tactics employed by most
Federal unions when Agencies want to make needed changes. Below are some suggestions for Agency
practitioners, lawyers and managers on how the decision alters the current

1.  Understand
what this decision means.

You should read the
decision yourself and consult with Agency counsel. Be aware and show managers the following
excerpt as it is the critical point in the entire case.

An agreement
between an agency and its employees’ designated representative must be
construed “in view of the policies embodied in the [Statute].” Id. at 797. When the question is
whether an agreement “covers” a matter, we must answer bearing in mind the
importance of finality to collective bargaining. See Dep’t of Navy, 962 F.2d at 59 (the “covered by” doctrine
ensures the parties’ “stability and repose” during the term of their
agreement). We will therefore reject
any construction of a collective bargaining agreement that treats it as but “a
starting point for constant negotiation over every agency action.”
(Author’s emphasis)

If someone wants to
say, “but the decision can be read to say…”, show them this quote and ask how
they get past this clear intent of the court. Now, I’m sure the politicos in the majority at FLRA are rationalizing away,
but even they understand that the court has handed them a major rebuke and are
unlikely to challenge such clear language unless they’re willing to fly
everybody out to the 9th circuit for every case.

2. Before giving notice of a change, carefully
review your collective bargaining agreement and your bargaining records.

“Covered By” applies when a
matter was raised and discussed then withdrawn, modified or agreed upon in a
negotiation. If an article, section,
attachment or addendum addresses an issue, the DC Circuit believes you have
concluded the matter for the life of the agreement. This view prevailed in the Prisons case despite the union’s attempt in that case to muddy the water. In essence, the court held that, for example,
if you have an article addressing RIF, your only obligation regarding that
article is to follow its terms.

3. Besides reviewing the agreement, review
previously agreed upon MOUs.

Before notifying the union of a
change, also study the myriad of MOUs that endless I&I bargaining has generated
in most Agencies. FLRA has found that
such MOUs have the same force and effect as a term agreement. If such an MOU disposes of an issue and has
not been replaced by a subsequent agreement, it appears you have a “Covered By”
defense to refusing to “bargain” an issue. As always, if you’re not sure, get advice from someone who is. 

4. If you have “change” discussions in
process, rethink your options.

If you’re in the middle of bargaining over a change,
recognize that the usual union leverage of holding up implementation
indefinitely may not be available to them. Loss of that leverage changes the equation and may offer you leverage or
unconsidered options. 

5. Giving notice doesn’t mean you’re conceding
a bargaining duty.

Telling the union an Agency’s plans including estimated
implementation dates is arguably courteous and at the same time, if a duty to
bargain exists, satisfies your obligation. Once notified, the ball is in the union’s court to advance negotiable
proposals. You are always entitled to
politely consider a stakeholder’s views, ideas and even proposals. The
decision merely gives you the option of doing that where no duty
exists as a result of agreement language and bargaining when the duty
requires.   If, as I predict will be the
case, unions demand to know whether you are bargaining or discussing, you might
want to give that single most common answer to any and all labor relations questions,
“It Depends.”

6. If you’re claiming no duty exists based on
the “Covered By” case, document everything.

If, more likely when it comes down to
showing your hand, make sure your claim to the union is in writing, thoroughly
researched and carefully written. Tell
the union what you are obliged to and remember, in the words of Ann Landers, “The
trouble with talking too fast is you may say something you haven’t thought of

7.  If the union makes an information request
on your “Covered By” change, you’ll need to decide whether and/or how to comply.

If you have no duty to bargain, the grant or withholding of
a 7114(b) request is irrelevant. In
other words, no duty equals no delaying tactics.   

8.  If the union files an Unfair Labor Practice
Charge, let the FLRA rep know early that you’re raising a “Covered By” Defense.

Expect the union to challenge every “Covered By” claim that
you make. ULP filings are cheap and easy
thanks to FLRA’s handy dandy electronic forms. FLRA doesn’t like to do hearings as they cost money so they are likely
to give more attention to Agency assertions of “Covered By” particularly after Prisons

9.  If you are preparing for contract
negotiations, offer a “Fat Contract” proposal.

Unions were always the proponents of comprehensive
agreements. After all there was all that
official time to use up getting to one.  
The shoe is now clearly on the other foot. I, for one, believe the unions will try to
insert a continuing bargaining obligation
provision in every article except maybe dues withholding. It will be real interesting to see whether
the Panel is sympathetic to the idea of “constant negotiation” rejected by the
DC Circuit. There was a time when the
Panel stood for the “stability and repose” the court supported. We’ll see if
they still do.


10. If you’re involved in a pre-decisional
forum, information sharing meeting, or other discussion, listen.  Sitting down and discussing an issue doesn’t
mean you’re bargaining it.

I always thought it never hurt anyone to listen to what the
union had to say as long as it was worth hearing. Good ideas can come from any source
anytime. There’s also the infinite monkey theorem (look it up) and
we’ve probably already paid for the devices anyway or been ordered to supply

The DC Circuit’s “Covered By” decision may be an attempt to
return some sanity to Federal labor relations. Whether that’s true or not, it could have that effect if Agencies
understand, above all, their own interests and advocate them. Prisons
also points out the wisdom of taking on FLRA’s unbridled arrogance in believing
it knows best how the government should be run. To my Counsel readers out there, it appears worth the fight.

Remember, if you somehow find an opinion in the above, it
is solely my responsibility.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.