THE  INTELLECTUAL DISHONESTY OF “COVERED-BY” ADVOCATES

There is an ALJ case lingering in the FLRA decision pipeline that will once again put the “covered-by” (CB) defense up for review. (See DoD and NEA) Having watched the CB defense come into being and judicially mutate into nothing short of a near-total extermination of mid-term collective bargaining, my opinion has been that it is built atop unsupportable assertions. This becomes obvious when they are isolated and examined individually. To do so, I have focused on the reasoning of the primary, and most accomplished, CB activist, Judge Harry T. Edwards, of the D.C. Court of Appeals. Like me he spent his formative years learning about language, reasoning, sentence structure, fallacies, and syntax in a little place called Uniondale.  True story, but for another time. Hopefully, this analysis will enable unions to sharpen an attack on the concept.

The Judge’s latest and most thorough attempt to enshrine the CB defense was in DOJ, FBP v. FLRA, (D.C. Cir. 2017) There he used almost a dozen well-phrased and gut-stirring arguments to establish the foundation for his CB doctrine.  Each is explained and then examined below because sometimes the best way to take something down is to take it apart one beam at a time.

Damn the Practitioners; The Judge Has A Theory  – Judge Edwards’ decisions states that in raising a CB defense to a union bargaining demand the following are irrelevant:

1. an “exact congruence” between existing contract provisions and the matter in dispute,
2. evidence that the parties “specifically discussed” a subject,
3. settlement agreements authorizing the mid-term bargaining,
4. a prior practice of bargaining the issue mid-term, or
5. even  indications that the matter was “contemplated” during bargaining. (How one would prove mere contemplation without Wonder Woman’s Lasso of Truth is beyond me, but it is something that worries his honor.)

What is needed? The judge wrote, “What matters is whether a subject is within the COMPASS of the provisions in the parties’ agreement.”  (Capitalization added)  While using the word “compass” has a ring of erudition and might titillate legal theorists, it is of absolutely no value to the thousands of LR advocates on both sides of the bargaining table. That is important to keep in mind because those are the only beings in the known universe who will be using the concept.  And, like any administrators, they most need predictability, if not objectivity and certainty. Otherwise, they are left to administer the CB concept with no more than a 50-50, roll-of-the-dice, “Baby needs a new pair of shoes” chance that they are right. Ambiguity merely breeds litigation, liabilities, and lashing out. It does not lead to effective and efficient government as required by 5 USC 7101(b).

Why did the judge use such a nebulous term? Arguably, there are a few reasons. First, after stating that neither exact congruence, specific discussions, nor even mere mind melding contemplation were needed, what evidentiary source was left?  Nothing!  So, anticipating that very legitimate question, the judge tossed one out even though no one knows what that it is for sure. Don’t expect synonyms for compass to help, e.g. remit, orbit, ambit, etc. Nor did it make matters clearer when the judge repeatedly used the word “scope” as a synonym for compass. Not only is it equally vague, but at one point he criticized the FLRA for focusing on “the scope of an agreement” as evidence in a CB dispute.

Second, the judge’s ambiguity gives whoever is deciding a CB dispute virtually total authority to rule for or against the union. He has made it an “eye of the beholder” matter, reminiscent of Justice Stewart’s inability to define pornography, despite his assurance that, “I know it when I see it.” (Jacobellis v. Ohio, 378 U.S. 184 (1964)) The judge has turned the adage of “a government of laws, not men” on its head.

Whoa is Management –  I can see a management LR rep arguing for a broad exception to the bargaining obligation via the CB concept whining that, “The [complaining party] would almost invariably prevail in duty to bargain cases, because it almost always could find some ambiguity in the relevant contractual language.” But those were Judge Edwards’ words–despite the blatant hypocrisy of suddenly being concerned about ambiguity.

Pardon my naïve view of jurisprudence, but I don’t think judges should be overturning decades-old case law because one party or the other is winning most of the cases. That is Congress’ job. If that was a proper approach to judicial decision-making, then judges  should do something about the fact that U.S. Attorneys winning the vast majority of their criminal prosecution. Perhaps they should push to change the standard for federal criminal conviction from the no “reasonable doubt” criterion to something like “not even a scintilla, whiff or spore of doubt.”

Beyond that, what the judge wrote is not true. Case law has shown several decisions where the federal agency prevailed. Yes, unions won most of the published decisions, but there is a mechanical, not statutory, reason for that.  First, unions pick the cases they move forward and we can assume they don’t move forward obvious losers.  Second, after the unions winnow out the losers, the FLRA General Counsel’s Office takes another cut to keep its Win-Loss record respectable.  That means the cases that the FLRA has decided should typically be legally solid allegations.

The judge’s concern for management’s ability to win under the clear and unmistakable criteria has no place in the consideration of what the law means. It is not as if managers suffer some harsh, unspeakable penalty if they are wrong; they merely must bargain.

Whoa Is Management II – Continuing that sympathy for management, the judge also wrote,

To that end, the scope of what is covered must be construed to give the parties the benefit of their bargain. And if the parties’ bargain encompasses the implementation of a new policy, then the new policy is deemed covered by the agreement

But the CB defense only has benefits for management.  It is not as if the union gets to bargain twice (or add a new contract benefit) if it defeats the defense. In fact, every time a management “benefit of their bargain” is upheld the union loses what it thought to be a benefit of the bargain it signed, i.e., the right to specific notice of a more than de minimis change in working conditions and the right to bargain over it up to and through impasse, among statutory rights.

Whoa Is Management III – Yet another indication of the judge’s concern for only one of the two labor-management parties pops out of these words he wrote:

The Authority’s decision says that “the [Agency] has failed to establish that the parties, at either the national or local level, intended to foreclose bargaining over inter-institutional assignments….” This seems to suggest that the crucial question is whether a party contemplated every scenario that might arise under the terms of the Master Agreement. This makes no sense because it would effectively eviscerate the covered-by doctrine.

No, your Honor, if by eviscerate you mean something that leads to midterm bargaining, it is management that triggers the “evisceration” process.  It does so by making more than a de minimis change in working conditions during the life of the term agreement and over which the union has not agreed to a clear and unmistakable waiver or incurred some other exception to a bargaining obligation. If management does not change working conditions, nothing is bargained or, to use your more viscerally graphic appeal to emotions ove reason, eviscerated.

Beware the Prophecy of Havoc –  Google Judge Edwards and you will see that he has repeatedly criticized what he calls “junk science” used in judicial disputes. Consequently, I was surprised to see him making social science predictions without even so much as junk data to back him up.  For example, he wrote based on no evidence,

If the obligation to bargain could be imposed whenever a party insisted upon reopening bargaining because it did not understand the full reach of the parties’ agreement when it was executed, this would wreak havoc in bargaining relationships.

As already said—and it cannot be said often nor clearly enough to the CB advocates–with very, very rare exception before any midterm bargaining obligation can spring into existence, the agency must propose a change in working conditions.  No proposed change, no bargaining obligation.  Even then, the change must be more than a de minimis one, the union must ask to bargain, and it must submit negotiable proposals.  Additionally, the change must not address something the union has–

1. waived the right to bargain over,
2. involves the necessary functioning or emergency exception,
3. flows from a change required by law,
4. involves non-unit employees, or
5. that has no foreseeable connection to unit working conditions.

Moreover, while the judge and other CB advocates are entitled to call it “havoc,” Congress has declared the opposite. It determined that collective bargaining “safeguards the public interest” and “contributes to the effective conduct of public business.” (5 USC 7101(a)(1)).  The only thing that results from an obligation to bargain is “bargaining.”  It does not entitle the union to strike, destroy property, burn noxious tires outside the office, or even slowdown.  It merely means the agency must provide specific notice of what it plans to do, respond to requests for information, and bargain if the union puts negotiable proposals on the table.  That hardly sounds like a looming potential for havoc.

Consequently, predictions of havoc, along with the judge’s other projections of evisceration, and the end of stability and repose in the labor-management relationship “ are worse than junk science.  They are scare tactics, fear mongering, and baseless emotional appeals.

But I can’t leave this prophecy of havoc without noting something the judge conveniently ignores. If agencies need not bargain over mid-term changes covered by an agreement, that allows them to unilaterally and instantly implement changes without any warning to employees.  Nothing would stop an executive from imposing a new performance standard effective immediately and with retroactive effect.  Or change start times, or performance award standards or anything else not tied down by clear and unambiguous express contract language. Consistent with the above mentioned expressions of sympathy for management, the judge shows no concern for the havoc employees would have to endure from unilateral changes.

The Stability and Repose (S&R) Switcheroo –  The judge and his allies support the CB theory by arguing that parties are entitled to “stability and repose with respect to matters reduced to writing in the agreement.” I agree with that statement.  But later in his decsion he wrote: “The Statute …also seeks to ensure repose and stability in bargaining relationships.” Suddenly the concept applies not just to negotiated written agreements, but to the entire “bargaining relationship.” He wrote that despite case law dating back to the early 80’s applying the S&R concept only “to the specific conditions of employment mutually established in their agreement.”  (IRS, 17 FLRA 735 (1985) – Underlining added) By making that switch to apply the S&R concept far more broadly, the judge creates the impression that he is meredlybuilding on a precedential foundation for concluding that collective bargaining itself destabilizes relationships–when there is no such precedent.More importantly, it is collective bargaining that is repeatedly endorsed by the statute whereas the S&R concept is mentioned nowhere in it despite the judge’s suggestion that S&R flows from the statute. Bottom line, it is improper to argue S&R overrides collective bargaining rights.

Beyond that, given that the CB concept allows an employer to unilaterally, instantly, and retroactively make changes in working conditions, there will be no stability and repose in the workplace for employees. That is another fact the judge’s calculation fails to include.

I also ask myself, “What relationships depend on stability and repose?” In my experience they are constantly shifting and resetting.  Most married couples experience a change in their relationship over just the first month of their marriage.  Relationships with one’s kids mutate even faster. Neighbors become closer or more distant at time goes on. Frankly, a good argument can be made that relationships need a dynamic element to mature and remain alive. you might say that the only relationships that are static are those with people who are lying in their final eternal repose.

Finally, even a quick review of a handful of collective bargaining agreements will show that parties often adopt mid-term supplemental bargaining processes and limited reopeners to deal with issues that are not yet ripe during term bargaining, issues that are too time consuming r specialized to be addressed during term bargaining, issues tied up in litigation, etc.  Continued bargaining during the life of a term agreement is a useful tool for the bargaining parties. It facilitates quick resolution of term agreements

Because Everyone Else Is Naive and Simplistic – The judge wrote,

Application of the covered-by doctrine does not rise or fall with reference to precise scenarios that the parties may or may not have envisioned when they executed their Master Agreement. Such an approach would rest on a simplistic and naïve view of collective bargaining and of the purposes of the Statute.

Given that in an earlier decision the Judge suggested that opposing the CB perspective was “perverse,” naïve and simplistic is not so bad. (See Navy, Marine Corps v. FLRA, 962 F.2d 48 (D.C. Cir. 1992) Nonetheless, it is more than a little tough to believe that everyone other than the judge and his CB advocates are naïve and simplistic.  The previous standard requiring a “clear and unmistakable waiver” had been applied by the courts, NLRB, FLRA, and most of the states that allow public sector bargaining for decades. The clear and unmistakable waiver standard was adopted in the federal sector as far back as A/SLMR No. 223 (1972), before there was a FLRA. That gave Congress seven years to consider changing it before it passed the CSRA. That is a long time for people in key positions to be so simple-minded about midterm bargaining without the “havoc” and “evisceration”the judge has predicted being noticed.

It is also worth noting that as recently as 2008, a full decade after the judge began replacing the “clear and unmistakable” standard with the CB one, the Supreme Court issued 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009). Thered it held that a union could only waive an employee’s right to have ADEA matters litigated in court if there was a “clear and unmistakable” written waiver of that right.  The court again applied the C&U standard again in Henry Schein, Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524 (2019).

Abracadabra! It Is Not A Waiver – The judge and his allies also try a little rhetorical slight-of-hand simply proclaiming that what has been considered a waiver for decades is not a waiver.

The covered-by doctrine is analytically distinct from waiver. A waiver occurs when a party knowingly and voluntarily relinquishes its right to bargain over a subject; when a disputed subject is covered by the parties’ agreement, however, the parties have exercised their rights to bargain over that subject.

Given that the judge has argued elsewhere that there need not be “specific discussions” of a matter nor even a bargaining team’s mere contemplation of the matter while at the term table, it is hard to see where the CB bargaining occurred.  Bargaining, as the law describes it, requires that when management proposes a change it gives specific notice of the change, including the scope, nature, timing and potential loss unit employees might suffer.   It also includes the union’s statutory right to demand relevant information as well as expect good faith discussions, consideration of its proposals, and if needed a delayed implementation until impasse processes are concluded. Not only are none of those elements needed in the judge’s concept of CB bargaining, but neither he nor his allies ever list a single tangible property of their concept of CB bargaining. Finally, his note that a waiver is something done “knowingly and voluntarily”  leaves the troubling suggestion that his CB bargaining is done unconsciously and against one’s will.

The Contract Interpretation Versus Contract Construction Red Herring – This might be the judge’s finest effort to leave the practitioner community not only hopelessly confused, but self-loathing because they are not as smart as he seemingly is. He wrote,

The parties’ intent may be relevant as an indicator of the scope of an agreement. This is very different, however, from determining whether the parties intended particular outcomes in the application and enforcement of their agreement. The Authority’s position confuses issues of contract “interpretation” with issues of contract “construction.” “Application of the ‘covered by’ doctrine is an exercise in construction….”  “‘[C]onstruction’ ‘determines [the] legal operation’ of agreement; ‘interpretation’ of agreement resolves any ambiguity in terms used.” Id.

Not having had to engage with the conceptual distinction in over 40 years of bargaining on both sides of the table, I went in search of an explanation of it. That led me to a piece entitled, “Interpretation and Construction in Contract Law,” by Gregory Klass and published by the Georgetown University Law Center in 2018. He wrote,

Although the distinction between interpretation and construction is easy to state in the abstract, a complete account of the two activities and the relationship between the two is no easy thing….”

There may not be a greater understatement in the history of legal scholarship given that it took him 48 pages to explain the difference, including charts, a deep dive into epistomological philosophy, and 155 footnotes. It is a fantasy to think that thousands of labor-management practitioners will be able to use the distinction. Raising this merely distracts the practitioners who are responsible for government running smoothly without running up litigation and financial liabilities.

Moreover, look again at the first two sentences of the judge’s statement above. He appears to be stating that “intent” is relevant to determinations of “scope,” but not to the issue of determining what he elsewhere calls “compass.”  However, elsewhere in his decision he used “scope” as a synonum for “compass” a half-dozen times.  Confused enough yet? No?  Keep reading.

The Great Non-Sequitur –  Alleging that if A happens, Q will happen when there is no science, research, nor broad consensus underlying that prediction defies reason.  Yet, the judge did precisely that when he wrote the following on behalf of the CB advocates:

As noted above, construing collective bargaining agreements as covering only those outcomes the parties concretely foresaw would make extensive future bargaining inevitable, removing the parties’ incentive to try to comprehensively bargain in the first place.

“Comprehensively bargain???”  Didn’t he just write that it is simplistic and naïve to think parties can anticipate every scenario? More to the point, he wrote elsewhere in the same decision that “it would have required near-supernatural prescience for the parties to have foreseen, at the time of drafting the MLA, what implementation issues would arise with respect to ‘specific individual details’ that had not even been conceived, much less implemented, at the time…” Which is it, your Honor?”  Is “comprehensive bargaining” to be encouraged or is it impossible without near-supernatural prescience?

Additionally, if a union pushed a dispute to the FSIP demanding contract language to address a problem that does not exist (nor is there any evidence suggesting it is likely to arise), belly laughs would ripple throughout a Panel members’ conga line carrying the union proposal to the Panel’s fastest shredder.  For example, if bargaining unit employees all work in one building today with six years remaining on its lease, should the Panel jump in to create rules to address a theoretically possible move to three buildings, or from D.C. to Nebraska, or from a high security to no security location?

Beyond that, if the union did demand what the judge labels a “comprehensive” agreement addressing the more worrisome hypotheticals, management would use those demands to address non-problems by counter-demanding concessions from the union in sections addressing real problems. That kind of bargaining strategy is how union chief negotiators get fired.

Finally, if a union knows that just because it signs a term agreement, thereby unleashing the judge’s dreaded “compass,” it loses virtually any right to negotiate over most mid-term changes, would it not be more likely to do any of the following to aggressively pursue continuous negotiations by:

• demanding one year rather than multi-year agreements—or at least repeated opportunities for supplemental or reopener bargaining unconnected to whether the agency has proposed changes,
• demanding contract language that limits the scope of any covered-by defense by replacing the judge’s compass concept with “clear and unmistakable” or something shade softer, and
• building  its other tools for convincing an agency to not do something or at least makes substantial concession before it does it.

For example, assume an agency suddenly announces mid-term that it is dispersing its employees from their current single location to multiple ones miles away.  If the union can’t bargain over even just the impact and implementation, in my experience it is likely to turn to local Congressional members, the media, and even neighborhood business groups for support to outright stop the move.  Most agency managers I know would much rather deal with their employees’ union than outsiders with their own independent power bases who are not ultimately answerable to the FSIP.

In short, if a union has a vigorous right to bargain over agency mid-term changes as they are proposed it has so many fewer issues to address at a term table than under a robust covered-by concept. Moreover, its mid-term bargaining is limited to changes the agency initiates, with very, very rare exception. The judge has it backwards.

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I can’t close without being reminded of debate competitions where judges demanded logic and condemned fallacies.  The arguments advanced by the CB advocates are riddled with the latter, whether they be non-sequiturs, self-contradictions, baseless generalizations, circular reasoning, appeals to emotion rather than reason, name-calling, etc. I can almost see the normally staid Uniondale debate judges booing, hissing, and winging things that the CB advocates.