OCTOMOM AND THE “COVERED-BY” BARGAINING DEFENSE

Much of science is devoted to finding out where things came from, e.g., the universe, global warming, the Kardashians, etc.  But there is no need to search very far for the origin of the “covered-by” doctrine. Thank Judge Harry Edwards of the U.S. Circuit Court in Washington, D.C.  The covered-by formula is his signature potion for poisoning the more workable contract waiver theory.

Ever since the normally constructive Judge Edwards force-fed his covered-by concoction to the FLRA, that in turn has stuffed it down the throats of powerless practitioners, the belly of federal sector mid-term bargaining has been roiling with indigestion. A quick check of case law shows that FLRA has had to issue well over a hundred decisions related to how this designer-brew breaks down the mid-term labor-management relationship. Even the circuit courts have had to address the issue over a dozen times—and three times in 2011 alone. Those numbers suggest that the doctrine does not promote the “stability and repose” its author alleged would follow its adoption. Stated more graphically, this doctrine breeds litigation at a rate similar to the population explosion that would follow the Duggars taking the Octomom as a sister-wife.

If you are on the union side of the table, there are eight ways to respond when some agency LR specialist mutters “covered-by” in response to your request to negotiate over some mid-term change.

1. Recognize the opportunity management just handed you by refusing to bargain based on this high-risk defense. Once management implements, charge it with a ULP either through FLRA or a grievance/arbitration process. (We prefer arbitrators whenever there is a chance to get a back pay or other monetary remedy.) If you win, management can be required to undo the change and compensate any employees who were harmed. Moreover, if you win some back pay the union can also demand attorney fees to add a little more sting to the penalty. (Check out NTEU, 64 FLRA 586 for a good approach to defeating management’s claim.)
2. Work with it. For example, assume that you asked to bargain over a management announcement that it will soon rotate the work employees in a group do without changing their title, series, grade or line of supervision. Now assume that management refuses saying the matter is covered-by the contract’s reassignment article which on its face only addresses changes of positions or locations–which are to be done by seniority. One option you have is to agree and force management to live by the letter of the contract reassignment article, namely, base the rotation of assignments on seniority, not management discretion. If management responds by saying the contract language proves the parties bargained already but that it does not apply to this specific kind of reassignment, it must meet a higher standard of proof known as the IRS II doctrine.  (See AFGE, 64 FLRA 199)
3. As soon as management ducks down behind the covered-by defense, think about luring it out with a compromise suggestion. After all, LR should easily recognize how flimsy the covered-by shelter is. Maybe it will not agree to bargain, but it might agree to skip the bargaining and make the change you want anyway. If management embeds your desired change in the details of its plans, it does not set a precedent undermining any future use of the defense.  It also reduces its risk of an order to take corrective action and compensated harmed employees a year from now. The union too avoids a bad precedent, and chalks up one more victory for the concept of the parties working together to solve problems.
4. When you demand to bargain, avoid using the same terminology in the contract. For example, using the scenario in #2 above, if you ask to bargain over the “reassignment” of work and the contract contains an article entitled, “Reassignment,” you are setting yourself up for defeat. So, ask to bargain over the “rotation of work” or the “workload changes.” Avoid even talking about what management is doing as a reassignment. It will boost your chances of winning down the road.
5. Avoid giving management a specific proposal if you suspect it will raise a covered-by defense. Just ask to bargain. Case law permits you to trigger bargaining without having to submit a proposal (AFGE, 61 FLRA 688),  and without a formal proposal before it (or other specific knowledge of the union’s demands) management cannot raise the covered-by defense successfully.
6. The next time you renegotiate the term contract or even negotiate a mid-term MOU over some change, propose something like this be added, “The employer agrees to limit any ‘covered-by’ refusal-to-bargain based on this contract to an assertion that the matter is ‘expressly addressed in’ this contract. It will not use the ‘inseparably bound up with’ element of the defense.” (NTEU, 64 FLRA 156) This limits liability for both sides. The union narrows the scope of the management defense and management avoids the risk of using the element of the covered-by defense that is most difficult to prove.
7. Link the contract reopener date to the assertion of a covered-by defense, e.g., “Should the employer raise the ‘covered-by’ defense to refuse to bargain over a matter in any article, the union may reopen that article for negotiations 90 calendar days after management makes that assertion if the union does not pursue a ULP over the ‘covered-by’ assertion.” That adds a cost to management’s use of the defense.
8. Use the union’s right to initiate mid-term bargaining by proposing changes not directly linked to management’s change. For example, using the example from #2 above once again, one response would be not to ask to bargaining impact and implementation issues related to the change, but simply ask to bargain over the vending services provided employees or the office furniture or pre-tax parking. Tell management it is just a coincidence that the union chose to initiate bargaining over the same group of employees whose working conditions it is about to unilaterally change.

There is reason to hope that the shelf-life of Harry Edward’s covered-by defense to federal labor law will expire. When Judge Edwards and his D.C. Circuit colleagues tried to force it on the NLRB, the Board successfully refused to live by it. (See Provena Hospital, 350 NLRB No. 64)  That alone is a pretty good reason why the FSIP might listen to a union demand that management’s covered-by right be limited to “expressly addressed in” situations (See NTEU, 2010 FSIP 199) or that management’s assertion of the defense should trigger the right for the union to reopen the article.

If you have others suggestions for combatting the distress brought on by a dose of the covered-by defense, feel free to share them in the blog box below.