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56 FLRA No. 136
U.S. Customs Service, Customs Management Center Miami, Florida and National Treasury Employees Union, Chapter 137, Case No. AT-CA- 80566 (Decided September 29, 2000)
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute when it unilaterally changed a past practice of granting administrative leave to bargaining unit employees to attend and participate in the Florida Law Enforcement Games. The Judge concluded that the Respondent violated the Statute as alleged. The Authority adopted the Judge's findings, conclusions, and recommended Order to the extent consistent with our decision.
The Authority explained the "covered by" doctrine introduced in 47 FLRA 1018. There, the Authority stated that it would resolve claims that a contract provision covers a matter in dispute by determining whether the matter is "expressly contained" in the collective bargaining agreement. If the provision does not expressly encompass the matter, the Authority stated that it would next determine whether the subject is "'inseparably bound up with . . . a subject expressly covered by the contract.'" The Authority further stated that it would examine all record evidence to determine whether the parties reasonably should have contemplated that the agreement would foreclose further bargaining in such instances. If the agreement provision does not expressly encompass the matter, the Authority moves to the next part of the analysis to determine whether the matter sought to be bargained is an aspect of matters already negotiated. That analysis, of whether the matter sought to be bargained is in fact an aspect of matters already negotiated, will as deemed necessary consider the parties' bargaining history or intent as a requisite component of the examination of all the record. As examination of bargaining history and intent is clearly an aspect of the "covered by" doctrine established by private sector and Authority precedent, the Authority rejected the Charging Party's argument that such evidence cannot be considered.
However, the Authority noted that the part of the doctrine, the "intent" portion of the examination of the record evidence is not a separate, independent criterion. Rather, it is an integral component of that part of the "covered by" analysis to determine whether the matter sought to be bargained is inseparably bound up with and thus is plainly an aspect of a subject covered by the contract.
Applying the above described doctrine, to this case,the Authority noted that the express language of the parties' agreement did not address attendance and participation in the Florida Games, because attendance and participation at any games, either the World Games or the Florida Games, was not mentioned in the agreement. With regard to consideration of the parties' bargaining history, the Authority reviewed the Judge's findings concerning the parties' bargaining history and concluded, as did the Judge, that the parties did not contemplate attendance and participation at the Florida Games when the CHEP program and the administrative leave "catch all" provisions were negotiated. The Authority concluded that the practice of granting employees administrative leave to attend the games was not in conflict with the parties' agreement. Additionally, the Authority concluded that the Judge did not err in granting status quo ante relief. The Authority noted that the purpose of status quo ante relief was to place parties in the positions that they would have occupied had there been no unlawful conduct.