UNITED STATES
OFFICE OF PERSONNEL MANAGEMENT
WASHINGTON, D.C. 20415-2000

LABOR-MANAGEMENT RELATIONS ADVISORY #02-1

DATE::  January 17, 2002

SUBJECT:  MIDTERM BARGAINING AND THE "COVERED BY" DOCTRINE

Midterm Bargaining

In OPM's Labor Management Relations Advisory 99-1 (March 18, 1999), we examined the Supreme Court's decision regarding midterm bargaining (NFFE Local 1309 v. Department of the Interior, 119 S.Ct. 1003 (1999). The Court did not decide whether midterm bargaining was permitted under the Federal Labor-Management Relations Statute. Rather, the Court noted:

In light of our determination that the Statute does not resolve the question of midterm bargaining, nor the related question of bargaining about midterm bargaining, we believe the Authority [FLRA] should have the opportunity to consider these questions aware that the Statute permits, but does not compel, the conclusions it reached.

The Court remanded the matter to the Court of Appeals for the Fourth Circuit for further proceedings.

On remand from the Fourth Circuit, the FLRA (in a split decision) found otherwise negotiable union initiated midterm bargaining proposals to be a statutory right of the union.

[W]e hold that agencies are obligated to bargain during the term of a collective bargaining agreements on negotiable union proposals concerning matters not "contained in or covered by" the existing agreement unless the union has waived its right to bargain about the subject matter involved. [Department of the Interior, U.S. Geological Survey and NFFE, Local 1309, 56 FLRA No. 6.]

The majority, in declining to either broaden or constrict its current application of the "contained in or covered by doctrine" said: "However, because deciding these and other related issues is not required to resolve the instant case, we will not consider them here."

In her dissent, Chair Cabaniss indicated that she agreed with the finding that the agency had committed an unfair labor practice by refusing to bargain. However, she did not agree that there was a statutory obligation for the agency to bargain. Rather, her view was that the proposal was not inconsistent with law or regulation.

I also disagree with the decision by the majority to not seek input . . . regarding the issue of "zipper clauses," a matter too intertwined with midterm bargaining to ignore. . . . [T]he majority consciously chooses not to address possibly the most crucial aspect of midterm bargaining by refusing to even seek information regarding zipper clauses and their effect, if any, on union midterm bargaining. . . . Accordingly, I respectfully dissent from the majority's resolution of the statutory duty to bargain issue and would not, without first obtaining more data, determine the question of whether the Statute requires bargaining on all negotiable union midterm bargaining proposals not covered by the parties' agreement, even in the absence of a contractual entitlement to do so.

[I] note, however, that addressing the issues of an independent statutory right to engage in union midterm bargaining was not necessary to the resolution of the original decision giving rise to this matter (even though the Authority addressed at that time the larger issue of the statutory question rather than limiting itself to just the issue of contractual obligation to bargain), and still is not necessary to resolving this case at this time. . . . Whether a contract proposal (mandating union midterm bargaining) conflicts with the Statute is a different question from whether the Statute provides unions with the right independent of any contractual right to do so[.]

"Covered-By" Doctrine

The definitive test for determining when a matter is contained in or covered by a collective bargaining agreement was previously established by the FLRA in U.S. Department of Health and Human Services, Social Security Administration and AFGE, National Council of Social Security Administration Field Office Locals, 47 FLRA No. 96. That framework (a three prong test) was to be used only in cases in which the agency's assertion that it had no obligation to bargain was based on the terms of a collective bargaining agreement.

Under the first prong, the FLRA attempts to determine whether the express language of the contract "reasonably encompasses the subject in dispute."

[I]nitially, we will determine whether the matter is expressly contained in the collective bargaining agreement. In this examination, we will not require an exact congruence of language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute.

See, e.g., McClellan Air Force Base and AFGE, Local 1857, 47 FLRA No. 116; USDA Forest Service, Pacific Northwest Region, 48 FLRA No. 89; and Defense Commissary Agency Fort Monroe, Virginia and National Association of Government Employees, Local R4-11, 49 FLRA No. 1.

The second prong (which is used only if the express language does not encompass the matter) asks whether the subject in dispute is "inseparably bound up with" and thus an "aspect" of a subject expressly covered by the contract.

If the provision does not expressly encompass the matter, we will next determine whether the subject is "inseparably bound up with and . . . thus [is] plainly an aspect of . . . a subject expressly covered by the contract." In this regard, we will determine whether the subject matter of the proposal is so commonly considered to be an aspect of the matter set forth in the provision that the negotiations are presumed to have foreclosed further bargaining over the matter, regardless of whether it is expressly articulated in the provision. If so, we will conclude that the subject matter is covered by the contract provision.

See, e.g., Marine Corps Logistics Base, Barstow, CA, and AFGE Local 1482, 48 FLRA No. 10; Scott Air Force Base and NAGE, Local R7-23, 49 FLRA No. 130; and INS and AFGE National Border Patrol Council, 51 FLRA No 103.

The third prong is applied in cases where it is difficult to determine whether the subject matter sought to be bargained in an aspect of matters already negotiated. The FLRA will give controlling weight to the parties' intent. Department of Veterans Affairs Medical Center, Denver, CO, and Veterans Canteen Service, Denver, Co, and American Federation of Government Employees, Local 2241, 51 FLRA No. 16. This prong is not a separate, independent criterion, but rather "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 this is plainly an aspect of a subject covered by the contract." U.S. Customs Service, Customs Management Center, Miami, FL, and National Treasury Employees Union, Chapter 137, 56 FLRA No. 136.

We recognize that in some cases it will be difficult to determine whether the matter sought to be bargained is, in fact, an aspect of matters already negotiated . . . . To determine whether such matters are covered by the agreement, we will examine whether, based on the circumstances of the case, the parties reasonably should have contemplated that the agreement would foreclose further bargaining in such instances. In this examination, we will, where possible or pertinent, examine all record evidence. . . . If the subject matter in dispute is only tangentially related to the provisions of the agreement and, on examination, we conclude that it was not a subject that should have been contemplated as within the intended scope of the provision, we will not find that it is covered by that provision. [Citations omitted.]

Conclusion

Notwithstanding the strong dissent of Chair Cabaniss, the FLRA has now concluded that unions have a statutory right to initiate midterm bargaining on otherwise negotiable subjects. An exception to this duty to bargain is if the matter is already "contained in or covered by" the existing agreement. The criteria established by the FLRA to determine if a particular matter is "covered by" was established in 1993. The focus of attention may now likely turn from a statutory obligation to bargain to another examination of the "covered by" doctrine. Given a different fact situation, the FLRA may yet decide to seek input and address the issue of "covered by" and other waivers by unions of this statutory right.

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