DC Court of Appeals Again Sides With Dissent in FLRA Decision

The DC Court of Appeals has again restricted the expansion of bargaining in the federal government as advocated by the FLRA.

On June 13, 2016, the Federal Labor Relations Authority (FLRA) issued a decision in Federal Bureau of Prisons, Coleman, FL and AFGE Local 506 (69 FLRA No. 65). The decision was issued by Carol Waller Pope and Ernest BuBester with a dissenting opinion by Patrick Pizzella. That decision has now been reviewed and overturned by a federal court.

Decision of the FLRA

In its decision, the FLRA found an unfair labor practice (ULP) was committed by the agency when it refused to bargain with the union on relief roster assignments. Specifically, the decision was that the agency violated the labor relations statute:

…by refusing to bargain in good faith with the Union over sick and annual relief roster assignments for correctional officers whom the Union represents (employees).  Employees on a relief roster fill in for other employees who are on sick or annual leave.  The question before us is whether the Judge erred because the “covered-by” doctrine excused the Respondent from its obligation to bargain.  Because the Respondent has not established that the requirements of the “covered-by” doctrine are met, the answer is no.

The “Covered-By” Theory

The agency contended it had already bargained on the subject of a relief roster in the master labor agreement that was applicable.

In effect, in federal labor relations,  an agency or union is not required to bargain (again) over a subject that has already been negotiated between a federal agency and a union. The FLRA applies a “test” in these cases to decide of the agency and union knew or should have concluded that their agreement would negate any further bargaining on a topic.

Purpose of the “Covered-By” Theory

In the federal labor relations system, negotiations can take a long time. There is often no pressure on a union to reach an agreement quickly as there is little leverage an agency has on the union’s decision. Union negotiators are generally paid their full salary and benefits during the bargaining process when they are federal employees and are working on behalf of the union rather than performing their regular job duties.

Also, a union cannot strike and, in the vast majority of cases, the issues being bargained are not directly related to salary and benefits of federal employees.

The “covered-by” doctrine is useful in that if an agency has already bargaining with a union on a topic, further negotiations are not necessary. An agency can follow the requirements of the agreement and move ahead to implement a decision without continuing to negotiate on a subject and delaying its ability to implement a new policy or decision.

Those familiar with federal labor relations realize that applying the “covered-by” theory often leads to further litigation anyway. That is what occurred in this case.

The agency contended the subject was already covered in a labor agreement. The union disagreed.

In this case, a majority of the three FLRA members concluded the agency had an obligation to continue bargaining with AFGE. The decision concluded that the agency did not convince the two FLRA Members that the agency and union “intended to foreclose bargaining over inter-institutional assignments.”

The Dissenting Opinion

As was often the case under decisions issued under the previous Chair of the FLRA, Member Pizzella dissented—often in colorful language that highlights main points of his argument. In this case, Pizzella observed:

Council 33 and its locals scattered throughout the country have filed not just six, seven, eight, nine, ten, or eleven variations, but they are now on their twelfth variation, of the same argument which was rejected by U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in 2011.  The first five attempts preceded the D.C. Circuit’s ruling and might have been attributed to good-faith passion. But those attempts which postdate that ruling border on what might be described as flagrant abuse of the collective-bargaining process. The French philosopher, Michel de Montaigne (whom I referenced in the ninth go-around), even though not as famous as Albert Einstein, observed that some people are just plain stubborn – “[s]tubborn and ardent clinging to one’s opinion is the best proof of stupidity.” (footnotes deleted)

It is inexplicable to me, therefore, that the majority ignores entirely the ruling of the D.C. Circuit in this case (and why they have done so every time the same argument has been raised by Council 33 and its locals since 2011).

The dissent is located in the original FLRA decision after the Appendix which makes it difficult to locate. It is labeled Member Pizzella, dissenting for those who wish to read the dissent.

Decision of the Court of Appeals

The District of Columbia Circuit Court of Appeals was, in effect, persuaded the arguments of the dissenting opinion as it was in similar cases as noted by Member Pizzella. The Court concluded:

The Authority’s decision in this case cannot be squared with this holding. It does not matter that the parties did not specifically contemplate consolidated relief rosters when they negotiated the Master Agreement. What matters is that consolidated relief rosters are clearly within the compass of (the labor agreement).

And, near the end of its decision, the Court commented on the approach by the FLRA majority in making its decision:

The Authority’s reasoning makes no sense because the Settlement Agreement did not amend the Master Agreement. Indeed, neither party even suggests this. And the Master Agreement surely did not “contemplate bargaining” over consolidated relief rosters. Therefore, the “covered-by” issue cannot be resolved by reference to the Settlement Agreement. The construction of the Master Agreement is what is at issue in this case.

Department of Justice v. FLRA, (CADC No. 16-1301), November 17, 2017.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47