The concept of “covered by” has not seen any significant changes in many years. It is a doctrine under which an agency does not have to engage in midterm bargaining on matters that are already “covered by” the existing agreement.
When the first covered by decisions were issued, many unions thought it was the end of collective bargaining. While it does place restrictions on bargaining over subjects already covered by a collective bargaining agreement it has not resulted in the end of midterm bargaining.
The theory of covered by is basically if you already bargained over a subject and reached agreement, you do not get a second bite at the apple. Covered by is based on the theory that if you bargained over a matter once and you placed that matter in a collective bargaining agreement, you do not get to bargain over it again when management exercises that provision of the agreement. If the union disagrees with how the management exercises the provision it can grieve its application.
In National Treasury Employees Union and United State Customs Service, Washington DC, 0-NG-2637, the Federal Labor Relations Authority stated the following with respect to the statutory purposes served by the covered by doctrine:
In sum, in examining whether a matter is contained in or covered by an agreement, we must be sensitive both to the policies embodied in the Statute favoring the resolution of disputes through bargaining and to the disruption that can result from endless negotiations over the same general subject matter. Thus, the stability and repose that we seek must provide a respite from unwanted change to both parties: upon execution of an agreement, an agency should be free from a requirement to continue negotiations over terms and conditions of employment already resolved by the previous bargaining; similarly, a union should be secure in the knowledge that the agency may not rely on that agreement to unilaterally change terms and conditions that were in no manner the subject of bargaining.
Covered By Disputes
Disputes over covered by occur usually in two different ways:
- The agency proposes a specific action affecting conditions of employment and refuses to negotiate because it believes the matter at issue has been negotiated.
- The agency refuses to negotiate over union mid-contract proposals because it believes the subject of the proposals has been negotiated.
Covered By” is the defense to a refusal to bargain allegation in two types of situations:
- Agency actions concerning changes in conditions of employment when contracts are in effect.
- Union proposals to effect changes in conditions of employment when contracts are in effect. Absent a “covered by” contractual defense, a refusal to bargain will give rise to a ULP.
Does the Agency Have to Correctly Interpret a Contract to Rely on the “Covered By” Defense?
The answer is no: The agency need not establish that it has correctly interpreted the contract; The agency only needs to show that the “matter” in dispute is covered by the contract.
What is the Purpose of the Covered by Doctrine?
To prevent bargaining over the same “matter” during the life of the contract if the parties already bargained over that “matter” in formulating a contract.
What Test Does the FLRA Apply to Decide if the Parties Covered a Matter in Their Contract?
Two prong test
1. Expressly Contained In
Specifically Written in Agreement. No real change from law since inception of Statute. Is matter “expressly contained in” the contract?
2. Inseparably Bound Up With
Is an aspect of matters already negotiated? Look to intent and bargaining history
Conclusion
If a change in working conditions is “covered by” an existing collective bargaining agreement provision, the covered by doctrine does not mean a union cannot contest the application of the provision. It means the union must choose grievance arbitration to resolve any disputes concerning the application of the agreement.
Covered by did not bring the end of collective bargaining as feared by unions. It has led to unions having to be more careful over which forum to choose to contest management exercising a right found in a collective bargaining agreement. Covered by is here to stay.
