DUBESTER CRITICIZES COVERED-BY CONCEPT

FLRA Member DuBester launched his own five-prong attack on the infamous two-prong covered-by concept that has generated so much chaos since its creation.  Writing a dissenting opinion in AFGE, SSA General Committee, 66 FLRA No. 108, he explained why it is time to rethink the concept that the DC Circuit force-fed the FLRA in the early 90s.

Members Pope and Beck followed two decades of FLRA appointees in finding that management was not obligated to bargain over a mid-term change because the facts demonstrated that the issue the union asked to negotiate was inseparably bound up with matters covered in the parties’ term agreement.

If you are a practitioner on either side of the table, you know what a crap shoot it is to rely upon that prong of the covered-by test.  As if the expression “inseparably bound up with” is not vague enough, the Authority applies it by determining whether the union proposal is “so commonly considered an aspect of the matter set forth in the provisions of” another agreement that those earlier negotiations are “presumed to have foreclosed further bargaining.”  Moreover, acting as if it was clarifying the above, the Authority has added elsewhere that the subject matter of the union proposal must be more than “tangentially” related to a contract provision. Typical responses among practitioners are:

• “Commonly considered” by whom?
• What is an “aspect,” what is a “matter,” and how can we tell them apart?
• “Presumed” by whom—the two parties that negotiated the deal, FLRA, some arbitrator, the same people who determine whether something is commonly considered?
• Why are the only choices that the prior negotiations either “foreclosed” bargaining or allowed it? Is it ever possible that they simply limited the scope of the current bargaining?
• Tangentially?  Really?

To date, FLRA and the DC circuit have considered it unnecessary to trouble themselves with those pedestrian questions while pondering deep legal theory and the big policy picture.

Member DuBester’s dissent, which appears to be the first since the covered-by concept was adopted two decades ago, will likely force the other two members and the courts to confront the ugly reality of the covered-by defense—whether it is through an appeal of this case or some other.  Here is a quick review of DuBester’s five-prong critique.

1. He pointed out what actual labor-management practitioners know with certainty, namely, “. . . the covered-by’s standard second prong so lacks precision as to raise a question about its practical usefulness to parties or the Authority.”   Actually, his words were kind.  Notably, neither of his colleagues disagreed with that judgment.
2. He noted that even though the covered-by concept was created to promote “stability and repose” in collective bargaining, in reality it has generated two decades of controversy.  Again, he was kind not to point out the very objective evidence that the concept has generated approximately 100 cases that either the FLRA or courts had to resolve.   The three current FLRA members have had the issue before them 16 times in less than three years.  Again, DuBester’s colleagues had nothing to say to challenge his claim.
3. He labeled the concept is so iffy to apply that it actually “undercuts the parties’ incentive to adhere to their agreement’s provisions.”   In our own blunter words, when management is foolish enough to invoke the inseparably bound up with prong, unions have at least a 50-50 chance of winning a ULP and generating a substantial money remedy for their members.  On the other side of the table, management can try to rely on the agreement deal it struck, but with the odds so high of losing many realize that it is just easier to negotiate. More silence from Pope and Beck in response.
4. He challenged the assertion loosely made by some that the covered-by concept is consistent with private sector labor law by referring readers to a recent NLRB decision in which it clearly and unambiguously explained that it does not accept the concept and has fought circuit courts when they tried to impose it.  No disagreement from Pope and Beck here either.
5. He put a spotlight on the Alice-in-Wonderland absurdity of the concept by noting that the arbitrator, in the underlying decision the FLRA was reviewing, said that the two changes management made were “neither contemplated by nor permitted by” the agreement, but that nonetheless the two other Authority members somehow found a way to conclude that the changes were covered-by the contract.  Pope and Beck were satisfied with the fact that the general “matters” that the two contract-violating changes concerned were addressed in the contract.  For example, because the matter of a promotion rating process was mentioned in the contract (and required to be done by an interviewing panel) it was acceptable for management to unilaterally replace the panel with a computer-scored questionnaire to rate applicants.  Their reasoning sounds like the old third prong of the covered-by defense, namely, the “reasonably should have been contemplated by the parties” element, which was tossed aside long ago.

The only response Pope did make to the DuBester dissent is found in footnote 4 where she concludes that because the parties did not ask the Authority to take a fresh look at the covered-by concept she was ignoring her colleague’s well-reasoned plea to do so–along with the mounting slagheap of evidence building up around it.

Those of us huddled around the FEDSMILL.com drafting table could not agree more with DuBester. (See our posting recent posting entitled “Octomom and the Covered-by Bargaining Defense.”)  For our part, we hope that AFGE appeals this decision to the courts.  It is a terrible set of facts for those hoping to prop-up the covered-by concept and DuBester has teed up five specific questions for the court to answer adequately before it allows the defense to continue.  Other unions should now start asking FLRA to take a fresh look at the covered-by doctrine whenever it figures in one of their cases.