WHAT HAPPENS WHEN “COVERED BY” MEETS IMPASSE?
The quick answer is “Nothing good for the union.” Let’s assume that the parties have been bargaining over a 10-issue mid-term MOU, have agreement on five of the issues and disagree on the other five, and have reached impasse at FMCS. If that is all there was to their dispute, the agency cannot implement its proposed changes until the FSIP resolves the dispute—assuming the union timely and properly invokes the Panel’s assistance. But change one fact and the answer is totally different.
Assume that one of the five disputed issues involves a union demand to bargain something the agency believes is “covered-by” an existing agreement. If that is the case and especially if the union asks the Panel to address that alleged covered-by clause, then the agency can unilaterally implement its last best offer (LBO) on all ten issues. (Normally, the LBO would be the five sections the parties agreed on and the employer’s last offer on the other five issues.) Check out AFGE, Local 3837 and SSA, 64 FLRA 17 (2009) for details.
Notice that when the union filed charges against the agency’s unilateral implementation, the FLRA Regional Director would not even take the charge to a complaint. Adding insult to the injury, FLRA did take the agency’s ULP allegation against the union to an ALJ and FLRA who found that the union was guilty of bad faith bargaining by insisting to impasse on a proposal covered by an existing agreement.
Union’s need to be very, very careful when an agency claims one or more of its proposals in a larger dispute is covered-by an existing agreement. FLRA holds that bargaining to impasse over a covered-by matter is a permissive subject of bargaining and it is a ULP simply to ask the Panel to take jurisdiction over a permissive topic. It may be the easiest way to find a union guilty of bad faith bargaining because FLRA ignores all other actions in the bargaining, “In cases alleging such conduct, there is no need to apply a ‘totality of the circumstances analysis,’ as the Judge did here. Rather, if the GC establishes that a respondent insisted to impasse on a single proposal that concerned a permissive subject of bargaining, then the respondent will be found to have violated the Statute.” Unions facing a covered-by claim on the brink of impasse are advised to find the best labor law expert on the staff to plot a path out of that high-liability situation without giving up the effort to bargain over the covered-by issue.