Guidance on the Impact of Collective Bargaining Agreements on the Duty to Bargain and the Exercise of Other Statutory Rights

The Impact of Collective Bargaining Agreements is Critical to Determinations on the Duty to Bargain and the Exercise of Other Statutory Rights

Collective bargaining agreements, mutually agreed to by unions and agencies under the processes of the Statute, have a significant impact on the duty to bargain during their term. Prior to determining whether a statutory duty to bargain in fact exists over a proposed management or union action, the terms of a contract, among other things, must be analyzed under various legal doctrines developed by the Authority. These doctrines are sometimes difficult to apply to work situations at the local level where union and agency representatives interact. For example, under one legal doctrine, a contract may preclude bargaining over a proposed management detail in a situation where there would be a duty to bargain over that detail absent a specific contract article or clause.

Collective bargaining agreements also play a vital role in the exercise of other statutory rights. For example, a duty to provide information to a labor organization may be subject to conditions contained in the parties' contract, even though those conditions are not contained in the Statute, and those conditions must be met before triggering the statutory obligation to disclose information.

Similarly, it is not uncommon for parties to confuse the difference between rights obtained through collective bargaining and rights granted by the Statute. Only in rare circumstances, for example, when a party repudiates a contract provision, is the denial of a contract right an unfair labor practice. Yet, unfair labor practice charges are sometimes filed alleging that one party has violated the Statute by not complying with a contract term.

The purpose of this memorandum is to set forth my understanding of the current state of the law on these type of issues, to explain the manner in which I believe the law should be developed in areas where the rules are not clear, and to provide guidance to the Regions to enable them to assist the parties in avoiding these types of disputes and understanding these legal concepts.


THE IMPACT OF COLLECTIVE BARGAINING AGREEMENTS ON THE DUTY TO BARGAIN AND THE EXERCISE OF OTHER STATUTORY RIGHTS


PART I. Limitations on the Duty to Bargain During the Term of a Contract - The "Covered By" Doctrine ...

A. Establishment of the "Covered By" Doctrine ... Click Here

  1. Purpose of the "Covered by" Doctrine
  2. The "Covered By" Test

B. Investigating and Deciding "Covered By" Cases ... Click Here

  1. First Determine Whether There is a Duty to Bargain Absent the Contract Clause at Issue
  2. Review Applicable Contract Clauses Where "Covered By" May Be a Viable Defense
  3. A Party Does Not Waive the "Covered By" Defense if it Does Not Raise it to the Union in Response to a Request to Bargain

C. Application of the "Covered By" Doctrine ... Click Here

  1. The Critical Issue Is How "Matter" Is Defined
  2. Authority Decisions Applying "Covered By" Give Guidance
  3. General Rule In Applying The "Covered By" Defense

D. Issues Affecting the Application of the "Covered By" Doctrine That Have Not Yet Been Decided ... Click Here

  1. Contrary Past Practice
  2. Not Reasonably Contemplated
  3. Bargaining History Indicates Intent To Bargain

E. Strategies to Avoid "Covered By" Disputes ... Click Here

  1. Maintain Current Collective Bargaining Agreements
  2. Ensure That the Parties Have a Mutual Understanding When Negotiating Contracts About What Matters are Bargainable During the Life of the Agreement

F. Application of "Covered By" to an Expired Contract ... Click Here

  1. The Regions Should Initially Determine Whether, In Fact, a Contract Is in Existence
  2. If the Region Determines That There Is No Contract in Effect, the Next Step Is to Decide Whether the Expired Contract Clauses at Issue Concern Mandatory or Permissive Subjects of Bargaining
  3. If the Expired Clauses Are Permissive Subjects of Bargaining, an Agency Need Not Be Bound by Those Clauses
  4. If the Expired Clauses Are Mandatory Subjects of Bargaining, the Parties Are Bound by Those Provisions Until and Unless the Parties Agree Otherwise or They Are Modified Under the Statute. Thus, an Agency Must Give Notice of Any Proposed Change of an Expired Contract Term, Afford the Union the Opportunity to Request to Bargain, Bargain in Good Faith and Maintain the Status Quo Until it Has Fulfilled its Bargaining Obligation
  1. Duty to Bargain over Proposed Changes in Mandatorily Negotiable Provisions in an Expired Contract
  2. Duty to Bargain Rests Only at the Level of Exclusive Recognition
  3. Negotiations over a Specific Matter Need Not Wait for Contract Negotiations
  4. Regional Office Responsibilities in Investigating a Refusal to Bargain Allegation Concerning an Expired Contract Term

PART II. Limitations Contained in Collective Bargaining Agreements on the Exercise of Statutory Rights - The "Contract Interpretation" Doctrine

A. Establishment of the "Contract Interpretation" Doctrine ... Click Here

  1. Purpose of the "Contract Interpretation" Doctrine
  2. The "Contract Interpretation" Test

B. Investigating and Deciding "Contract Interpretation" Cases ... Click Here

  1. First Determine Whether There is a Duty to Bargain Absent the Contract Clause at Issue
  2. Review Applicable Contract Clauses Where "Contract Interpretation" May Be a Viable Defense

C. Application of the "Contract Interpretation" Doctrine ... Click Here

  1. Interpreting Contracts Discussing A Non-Bargaining Statutory Right
  2. Interpreting Contracts to Determine the Statutory Duty To Bargain

D. Strategies to Avoid "Contract Interpretation" Disputes ... Click Here

  1. Ensure That the Parties Have a Mutual Understanding When Contracts Place Limitations on Non-Bargaining Statutory Rights
  2. Ensure That the Parties Have a Mutual Understanding When Contracts Place Limitations on the Statutory Duty to Bargain

PART III. The Duty to Bargain Over Union-initiated Requests to Bargain During the Term Of an Agreement -- "Union-Initiated Mid-Contract Bargaining"

A. The Duty to Bargain ... Click Here

B. Disputes over the Level of the Duty to Bargain ... Click Here

C. Disputes Over Whether the Contract Forecloses the Obligation to Negotiate Over a Union-initiated Mid-Contract Bargaining Request ... Click Here

D. Disputes Over the Subject Matter of the Mid-Contract Bargaining Obligation ... Click Here

PART IV. Difference Between of Violations of Contract Rights and Violations of Statutory Rights

A. Contract Rights are Enforceable Through Negotiated Grievance Procedures ... Click Here

B. Repudiation of Contract Clauses as an Unfair Labor Practice ... Click Here


C. Application of the Repudiation Doctrine ... Click Here

  1. "Clear and Patent" Breach
  2. "Heart" of the Agreement

PART V. The Duty to Bargain Pursuant to Reopener Clauses Contained in Collective Bargaining Agreements

PART VI. The Duty to Bargain Supplemental Agreements Below the Level of Exclusive Recognition

 

PART I. Limitations on the Duty to Bargain During the Term of a Contract - The "Covered By" Doctrine

"Covered by" is a defense to a refusal to bargain allegation, resulting either from an agency initiated change or a union-initiated mid-contract bargaining request.(1) Thus, absent the matter being "contained in" or "covered by" the contract, there would be a refusal to bargain violation of the Statute. In other words, the "covered by" doctrine concerns situations where, for example, a proposed agency action, which otherwise would be subject to collective bargaining in the absence of a contract, is not subject to bargaining because the matter has already been negotiated as evidenced by the contract. These situations often arise when an agency proposes to take a specific action concerning a condition of employment but refuses to negotiate with the union over the matter based on the agency's belief that the matter has already been the subject of negotiations and is therefore "covered by" the parties' agreement.

Under the "covered by" defense, a party need not establish that it has correctly interpreted the contract. Rather, the party need only establish that the "matter" in dispute is "covered by" the contract. Thus, even if the specific action taken by an agency may be violative of the contract, if the "covered by" doctrine applies, the union's avenue of redress is only through the negotiated grievance procedure and not the unfair labor practice procedure since there would be no statutory duty to bargain. Any disputes over whether the agency conduct violated the contract should be raised in a grievance under the parties' negotiated grievance procedure.

The following is a description of the "covered by" doctrine, a discussion of the manner in which it has been applied by the Authority, and suggestions for the Regions to assist the parties in avoiding and resolving these types of disputes.

A. Establishment of the "Covered By" Doctrine

1. Purpose of the "Covered by" Doctrine

In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA No. 96, 47 FLRA 1004 (1993) (HHS), the Authority established a framework for determining whether a matter is "contained in" or "covered by" a collective bargaining agreement. The Authority indicated that the framework should be "sensitive to both the policies embodied in the Statute favoring resolution of disputes through bargaining and to the disruption that can result from endless negotiations over the same general subject matter."(2) The Authority established these goals for its new "covered by" framework:

Thus, the stability and repose that we seek must provide a respite from unwanted change to both parties: upon execution of an agreement, an agency should be free from a requirement to continue negotiations over terms and conditions of employment already resolved by the previous bargaining; similarly, a union should be secure in the knowledge that the agency may not rely on that agreement to unilaterally change terms and conditions that were in no manner the subject of bargaining. If we meet these goals, we will have supported "the delicate balance of power between management and labor . . . ." National Treasury Employees Union v. FLRA, 856 F.2d 293, 301 (D.C. Cir. 1988).
2. The "Covered By" Test

The following is the test established by the Authority in HHS for determining whether a matter is "contained in" or "covered by" a collective bargaining agreement:(3)

Prong 1. "Expressly contained" - The initial determination is whether "the matter is expressly contained in the collective bargaining agreement." Under this first step, "an exact congruence of language" is not required, but rather the test is whether "a reasonable reader would conclude that the provision settles the matter in dispute."

Prong 2. "Inseparably bound up with" - If the provision does not expressly encompass the matter, the next step is to determine whether the subject is "'inseparably bound up with and . . . thus [is] plainly an aspect of . . . a subject expressly covered by the contract.'" Under this prong of the test, the issue is "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."

Prong 3. "Reasonably should have contemplated" - 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. In these situations, the third prong of the analysis is to examine whether, based on the circumstances of each case, "the parties reasonably should have contemplated that the agreement would foreclose further bargaining in such instances." If the subject matter is only "tangentially" related to the provisions of the agreement and was not a subject "that should have been contemplated as within the intended scope of the provision", the subject matter would not be covered by that provision.

B. Investigating and Deciding "Covered By" Cases

1. First Determine Whether There is a Duty to Bargain Absent the Contract Clause at Issue

Since the "covered by" test applies when a party raises a contract clause as a defense to alleged unlawful conduct, the Regions should begin their inquiry by initially determining whether there would be a violation of the Statute in the absence of the contract. For example, in cases alleging a unilateral change, before applying the "covered by" defense, the Regions should first determine whether there was a change in a condition of employment that, absent a contract, would have required advance notice and an opportunity to negotiate.

2. Review Applicable Contract Clauses Where "Covered By" May Be a Viable Defense

If a Region concludes that there would be a violation of the Statute absent the contract, the Region should then apply the Authority's "covered by" test to determine if the contract is a defense to the challenged action. The Regions should inquire into this defense when investigating and deciding cases in the same manner in which the Regions currently make inquiries about other potential defenses to unfair labor practice charges; such as in a unilateral change case, whether the activity gave notice and an opportunity to bargain prior to the change, and in a mid-contract bargaining case, whether the union's proposals are negotiable. Thus, the Regions should routinely inquire into applicable collective bargaining agreement clauses when deciding unilateral change and mid-contract bargaining cases.

3. A Party Does Not Waive the Covered by Defense If it Does Not Raise it to the Union in Response to a Request to Bargain

After issuance of HHS, the Office of the General Counsel tested whether an agency is precluded from raising the "covered by" defense in bargaining cases where an agency fails to inform the union, in response to a union request to bargain (either in response to a change or mid-contract), that the agency views the matter as covered by the contract. We argued before the Authority that an agency's failure to inform the union of its position precludes the union from making an informed choice of whether to challenge the refusal to bargain through a grievance or an unfair labor practice charge.

The Authority has rejected that legal argument and has held that "if a matter is contained in or covered by a collective bargaining agreement an agency may act unilaterally without providing anyreason for so doing [underscoring in original]."(4)Thus, the failure to respond to a union demand to bargain in circumstances where, in fact, the proposed action is covered by the contract does not preclude the agency from relying on the "covered by" doctrine at an unfair labor practice hearing. Since there even is no obligation for the agency to present this defense to the Region during the investigation of an unfair labor practice charge, the Regions should review applicable contract clauses when "covered by" may be a viable defense, whether or not raised by the agency.

If the Region's investigation discloses that an agency engaged in "misleading, obstructive or deceitful conduct that prevented a union from filing a timely grievance or otherwise pursuing its rights," the Region should contact the Office of the General Counsel to discuss whether an independent unfair labor practice exists.(5) Although in DLA the Authority emphasized that parties must still deal with each other in good faith, EEOC and DLA make it clear that the failure of an agency to notify a union in response to a request to bargain that the agency believes the matter to be covered by the contract is not evidence of bad faith.

C. Application of the "Covered By" Doctrine

1. The Critical Issue Is How "Matter" Is Defined

The Authority articulated the competing demands under the "covered by" doctrine as the tension between "resolution of disputes through bargaining" and "endless negotiations over the same general subject matter." Simply stated, if the matter had already been bargained, there is no need to bargain over that matter again during the life of the contract. Thus, the interpretation of the term "matter" in the "covered by" framework will be determinative of the application of the doctrine.

When a contract is raised as a defense to a refusal to bargain allegation, a determination must be made whether the "matter" is "covered by" the contract in order to decide whether there is a statutory obligation to bargain further. Under the Authority's three prong test, the critical issue is to decide how much specificity in a contract is required on a particular "matter" before the threshold is reached where the "matter" is "covered by" the contract - and thus management may implement actions related to the "matter" without further bargaining and there can be no union-initiated bargaining on that "matter." In essence, the definition of "matter" will have a major effect on the ultimate issue of whether there was an unlawful unilateral change or failure to negotiate mid-contract - or whether the "matter" is covered by the contract. For example, is the matter the topic of overtime or the particular procedure used in assigning overtime. A matter could be viewed as being covered by a contract if any aspect of the general topic which involves that matter is addressed in the contract. Another view is that the parties at term negotiations should not be required to contemplate all appropriate arrangements and procedures which could be applicable to conduct which has not yet occurred.

In applying the "covered by" doctrine to actual fact situations arising in unfair labor practice charges, I am guided by the two policies embodied in the Statute which were relied upon by the Authority when developing the "covered by" test: (1) the policy "favoring the resolution of disputes through bargaining" and, (2) avoidance of "the disruption that can result from endless negotiations over the same general subject matter." Thus, as found by the Authority, "upon execution of an agreement, an agency should be free from a requirement to continue negotiations over terms and conditions of employment already resolved by the previous bargaining." "[S]imilarly, a union should be secure in the knowledge that the agency may not rely on that agreement to unilaterally change terms and conditions that were in no manner the subject of bargaining."

2. Authority Decisions Applying "Covered By" Give Guidance

The Office of the General Counsel is guided by the Authority decisions which have issued since the pronouncement of the "covered by" doctrine. Attachment 1 is a summary of the significant "covered by" decisions issued by the Authority since HHS. In the vast majority of these decisions, the Authority found the "matter" in dispute covered by the contract. The Authority also remanded some decisions for further development of the record and only found that the "covered by" defense was not appropriate in a very few decisions. In finding the "covered by" defense appropriate, the Authority specifically relied upon contract clauses which established terms and conditions of employment for the general subject matter discussed in the contract. The Authority found these clauses sufficient to encompass or cover the change or union mid-contract proposals at issue. The Authority did not define the "matter" in narrow terms.

I recognize that these cases represent only a few of the myriad fact patterns which could involve "covered by" issues. Nonetheless, these decisions establish that the Authority thus far has defined the "matter" as the general topic of the dispute, rather than the more limited topic which was the subject of the union's concerns over a change or the union's particular mid-contract proposals. The following are summaries of Authority decisions which have applied the HHS "covered by" doctrine and concluded that the more general subject matter addressed in the parties' contract covered the specific topic which was the subject of an agency action or union mid-contract proposals:(6)

 

 

CASE NAME GENERAL SUBJECT MATTER IN THE CONTRACT FOUND TO BE SUFFICIENT TO COVER THE ... SPECIFIC TOPIC OF THE CHALLENGED MANAGEMENT ACTION OR THE UNION'S MID-CONTRACT PROPOSALS
HHS "the general subject of performance awards" and "the disclosure of information relative to such awards" "the provision of information about the awards program before the distribution of awards"
SSA, Tucson (1) work breaks for unit employees work breaks for service representatives away from a stand-up counter
Sacramento ALC I (2) shutdown of the base shut down of the control tower
Sacramento ALC III (4) performance awards the presentation of performance awards and the posting of awards information
Fort Benjamin Harrison (5) the delivery of paychecks the delivery of paychecks by hand delivery, which was the union's response to the agency's change in pay lag and pay day.
SSA, Douglas (9) health and safety the provision of an anti-fatigue mat
USDA Forest Service (10) details involuntary details
Camp Lejeune (11) smoking no further smoking indoors, smoking only outdoors
Navy Resale Activity (12) basic work week and hours of duty reduction in hours of work
375th Combat Support Group (13) reduction-in-force reassignment of two employees
INS (15) tours of duty reduction in holiday and Sunday hours
3. General Rule In Applying The "Covered By" Defense

Based on these decisions, it appears the Authority will not require that the specific change which triggered the request to bargain or the specific topic of the union's mid-contract proposals be specifically addressed in the contract to foreclose bargaining. Rather, it is sufficient if the general subject matter concerning that specific topic is contained in the agreement. Thus, in evaluating the "covered by" defense, the Regions should find a matter covered by the contract and therefore not subject to bargaining under the Statute if the general subject matter of the union's mid-contract proposals or the change is addressed in the contract. Each fact situation, of course, should be analyzed on a case-by-case basis.

D. Issues Affecting the Application of the "Covered By" Doctrine That Have Not Yet Been Decided

Many issues concerning the application of the "covered by" doctrine have not yet been addressed by the Authority. In those areas where the law has not yet been developed, my Office will pursue the legal theories below to afford the Authority the opportunity to provide further guidance to the parties. Again, I am bound by the policies which underscore the "covered by" doctrine as well as the statutory mandate that collective bargaining is in the best interest of the Government.(7)

1. Contrary Past Practice

Notwithstanding the language of an agreement, a consistent contrary past practice that had existed with the knowledge and participation of management will supersede the contract.(8) The fact that the negotiated agreement covered the matter is not conclusive if it is established that over a period of time the parties had engaged in a practice that differed from the contractual provisions. If a past practice is inconsistent with the contract, the Regions should contend that the "covered by" defense is inapplicable.

2. Not Reasonably Contemplated

The Regions should contend that the "covered by" defense should also fail if the union requests to negotiate mid-contract, or responds to a change, over a matter which was not in existence at the time of the contract negotiations and which could not reasonably have been contemplated by the parties during bargaining. For example, matters that were contained in the abolished Federal Personnel Manual or which were contained in revoked Government-wide or agency regulations, which prior to their revocation established terms and conditions of employment, would appear to be matters subject to bargaining during the term of an agreement.

3. Bargaining History Indicates Intent To Bargain

The Regions should take the position that the "covered by" defense also should fail if the bargaining history of the contract article raised as a defense establishes that the parties did not intend to foreclose all bargaining over the general subject matter in the contract during the term of the agreement. Thus, even if the general subject matter is addressed in the contract and thus the "covered by" defense would absolve an agency from bargaining, the parties' bargaining history evidencing a contrary intent should prevail and the matter should be presented by the Regions to the Authority.

E. Strategies to Avoid "Covered By" Disputes

1. Maintain Current Collective Bargaining Agreements

The Authority's lead "covered by" decision in HHS was issued on June 30, 1993. Although more than three years old, some contracts in the Federal sector have been in effect prior to that date and have not been reviewed or renegotiated subsequent to HHS. In these situations, the "covered by" doctrine may apply to preclude statutorily mandated bargaining in situations even though the union, or both parties, were of the view at the time of entering into the agreement that those types of matters would be bargainable during the term of the agreement. For example, a pre-June 30, 1993 contract may have an article on details. That article may not have been a clear and unmistakable waiver of a union's right to bargain the impact and implementation of a detail (the legal doctrine in effect prior to "covered by"). Nonetheless, under the "covered by" doctrine now in effect, there may be no duty to bargain the impact and implementation of a specific detail because the subject matter of details is covered by the contract.

To avoid these situations where the parties at the time of negotiating their contract had no intent to foreclose future bargaining over specific actions, and where the parties are allowed by their current contract to negotiate a new agreement,(9) the parties could review their current agreements in light of the "covered by" doctrine and negotiate modified or new agreements which reflect their intent and understanding.

2. Ensure That the Parties Have a Mutual Understanding When Negotiating Contracts About What Matters are Bargainable During the Life of the Agreement

It is not unusual even for parties who have negotiated a contract after the June 30, 1993 pronouncement of the "covered by" doctrine to agree to a collective bargaining agreement without a mutual understanding about what matters would be bargainable during the life of the agreement. Although the parties may very well have provided for reopening the contract or certain clauses at specified intervals, the parties may not have an understanding about which matters are foreclosed from bargaining during the life of the agreement. For example, if the parties negotiate a reduction-in force (RIF) article, the union may believe that the agency still has to give notice and bargain, at least as to the impact of a specific RIF taken during the life of the contract. The agency, on the other hand, may believe that it has fulfilled its bargaining obligation over all RIFs, in general and specific, and may implement a RIF during the life of the contract merely by complying with whatever terms are contained in the contract.

The parties may consider specifically addressing this issue when they engage in term negotiations. For example, the parties may agree that the contract contains the full understanding and obligation of the parties to negotiate over a specific matter during the term of the agreement. The parties could also agree to reserve bargaining over a specific possible management action during the life of the agreement, but perhaps limit that bargaining to a specific time schedule, perhaps even providing for post-implementation impact bargaining so that an action consistent with existing contract terms could be implemented and not delayed. The parties could also agree to limit any bargaining, whether pre- or post-implementation to specific matters, such as the impact of the proposed action on adversely affected unit employees when that impact is not, or could not have been, addressed at time of contract negotiations; for example, specific impact matters which are particular to the specific management action at issue.

All of these options have a common thread; a mutual understanding between the parties over how they will deal with each other during the term of the agreement. Absent such an understanding, the possibilities increase that an agency will take an action based on its belief that there is no obligation to give notice and bargain because of the "covered by" doctrine, the union will then file an unfair labor practice charge (rather than challenge the action as contrary to the contract under the negotiated grievance procedure), and the matter will result in litigation and decision-making by a third party.

Any understanding the parties reach as to what types of matters would be bargainable during the life of the contract could be set forth in the contract itself or contained in a joint bargaining history. The parties can attempt to avoid disputes over even this issue by clearly stating exactly what they have agreed to thereby foreclosing the need for a third party to make a decision as to the parties' intent. The Regional Offices should be available to assist parties in utilizing any of these options.

F. Application of "Covered By" to an Expired Contract

In United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA No. 68, 51 FLRA 768 (1996) (INS, Del Rio), reconsideration denied, 51 FLRA No. 127, 51 FLRA 1561, 1565 (1996), petition for review filed, No. 96-1343 (D.C. Cir. Sept. 17, 1996), the Authority dismissed allegations of a mid-contract refusal to bargain over an assignment policy because the contract had expired and mid-term bargaining requires an existing contract, noting that the sole theory of the violation advanced was a refusal to engage in mid-contract bargaining. In Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA No. 125, 51 FLRA 1532 (1996) (Air Force Materiel Command), the Authority found no refusal to bargain at the union's request on an incentive awards program because the union did not pursue pre-implementation bargaining. The Authority stated that "[a]n agency's bargaining obligation may arise only in one of the following contexts: (1) during term negotiations for a collective bargaining agreement; (2) in response to union-initiated mid-term proposals; and (3) when management proposes to change existing conditions of employment."(10)

I do not read these decisions as requiring a union only to engage in full term bargaining or bargaining in response to management changes once a contract expires. Rather, I am of the view that the case law and sound labor management relations policy compels bargaining over union proposals to change a mandatory term of an expired contract without renegotiating the entire expired contract. It would be anomalous to provide that management is free to propose specific changes one at a time after a contract expires, but that a union is limited to only initiating negotiations over an entire new term agreement. In my view, both parties should be able to propose specific changes to existing conditions of employment. When presented with a proposed change, however, either party could insist on negotiating a full term agreement. The Regions should adhere to the following decisional process when determining the effect of an expired contract on the duty to bargain:(11)

1. The Regions Should Initially Determine Whether, in Fact, a Contract Is in Existence.

If the Region concludes that the agreement has been renewed automatically by its terms, or that the parties have agreed to roll over their previous agreement or negotiated a successor agreement, a collective bargaining agreement is in effect. If a contract is in effect, the Regions would apply existing Authority doctrines addressing the effect of a contract on the duty to bargain. Thus, the Regions, as appropriate, would be required to resolve such issues as whether: the subject matter in dispute is covered by the contract; the contract as interpreted by the Region is a defense to the charge; the contact has been repudiated; and/or whether there is a duty to bargain mid-contract.

2. If the Region Determines That There Is No Contract in Effect, the Next Step Is to Decide Whether the Expired Contract Clauses at Issue Concern Mandatory or Permissive Subjects of Bargaining.(12)

The Authority has held that it will examine the subject matter of an expired contract provision to determine whether it is permissive or mandatory.(13) In DOT, the union took advantage of the contract's reopener provision and requested to reopen specific contract provisions. The union also notified the agency that, as it had reopened those provisions, it was no longer bound by the waiver, contained in those provisions, of its right to bargain over the impact and implementation of lateral reassignments. The parties bargained over the provisions to impasse. During the impasse, some vacancies came open and the agency followed the contract provisions to make lateral reassignments. The Union sought to bargain over the impact and implementation of the reassignments, but the agency refused.

The Authority found that the disputed, reopened provisions did not result from bargaining over permissive subjects and did not constitute waivers of the union's bargaining rights. The Authority noted that the disputed provisions constituted procedures governing employee reassignments and that the parties had agreed that the agency could act unilaterally for certain actions. Nonetheless, this did not establish that the provisions constituted a permissive subject of bargaining. Rather, the Authority found the subject matter of the provisions, employee reassignments, was a mandatory subject of bargaining. In essence, a mandatory subject of bargaining does not convert to a permissive subject of bargaining just because the union in negotiations has allowed management to act unilaterally in certain instances. Thus, the Authority found that the disputed, reopened provisions resulted from bargaining over mandatory, not permissive, subjects of bargaining. As such, since the contract provisions did not terminate upon reopening, the parties were bound to abide by the terms of the provisions, a mandatory subject of bargaining, until a new contract was negotiated or until both parties agreed to a modification (or, presumably, nullification) of the provisions. Thus, in determining whether a matter is a permissive or a mandatory subject of bargaining, the Regions should focus on the subject matter of the provision and whether that subject matter was permissive or mandatory at the time of negotiations.(14)

3. If the Expired Clauses Are Permissive Subjects of Bargaining, an Agency Need Not Be Bound by Those Clauses.

The Authority also has consistently held that upon the expiration of the agreement, either party may elect to no longer be bound by the provisions of the agreement concerning permissive subjects of bargaining, but instead may refuse to negotiate with regard to such subjects.(15) Thus, permissive subjects remain in effect unless or until one of the parties gives notice that it will no longer be bound by the expired article.(16) Of course, permissive subjects are those which do not concern conditions of employment and those which are delineated in section 7106(b)(1) of the Statute. In the case of permissive subjects, either party may assert its right not to honor the expired contractual provisions or to bargain at all about the subject. Terms and conditions expressly contained in the expired contract (which corresponds to the first prong of the covered by test) which are permissive subjects of bargaining also serve as past practices. However, parties may elect not to be bound by these permissive subjects. It is unclear whether the party electing not to be bound must first give notice and bargain the impact and implementation of the decision to no longer be bound before the termination of the expired permissive subject, or whether the act of taking action inconsistent with the permissive subject is sufficient notice triggering a post-implementation impact and implementation bargaining obligation. Cases raising these issues should be submitted for casehandling advice.

4. If the Expired Clauses Are Mandatory Subjects of Bargaining, the Parties Are Bound by Those Provisions Until and Unless the Parties Agree Otherwise or They Are Modified Under the Statute. Thus, an Agency Must Give Notice of Any Proposed Change of an Expired Contract Term, Afford the Union the Opportunity to Request to Bargain, Bargain in Good Faith and Maintain the Status Quo Until it Has Fulfilled its Bargaining Obligation.
a. Duty to Bargain Over Proposed Changes in Mandatorily Negotiable Provisions in an Expired Contract

The Authority has consistently held, and reaffirmed in INS, Del Rio, that "[p]rovisions resulting from bargaining over mandatory subjects survive the expiration of a collective bargaining agreement, 'absent an express agreement to the contrary or the modification of those conditions of employment in a manner consistent with the Statute.'"(17) Thus, those terms and conditions of employment that concern mandatory subjects of bargaining, and that are embodied in a collective bargaining agreement, continue in effect following the expiration of the agreement.(18) Those expired provisions which are mandatory subjects of bargaining remain in effect and are enforceable unless both parties decide to the contrary after the expiration of the contract.(19)

Thus, just as an agency only may make a change in an established past practice by notice and bargaining, an agency may make a change in an expired contract provision which is mandatorily negotiable only by notice and bargaining. Absent agreement by the parties to make any changes, the agency must adhere to those terms or be subject to unilateral change violations.

b. Duty to Bargain Rests Only at the Level of Exclusive Recognition

Similarly, a union at the level of exclusive recognition not only may continue to adhere to those expired contract terms, but must also adhere to those mandatorily negotiable terms in expired contracts, unless the parties agree otherwise. Accordingly, there would be no duty to bargain based on the request of a local union below the level of exclusive recognition to negotiate a change in an expired contract term just as there would be no duty for the agency to negotiate below the level of exclusive recognition over changes in an existing contract.(20)

c. Negotiations Over a Specific Matter Need Not Wait for Contract Negotiations

In addition, a request to change an expired contract provision involving a mandatorily negotiable matter need not wait for negotiations over a new contract. Rather, either party at the level of exclusive recognition may give notice and request to bargain to change a negotiable expired contract term without renegotiating the entire expired contract. When presented with a proposed change, however, either party could insist on negotiating a full term agreement.

d. Regional Office Responsibilities in Investigating a Refusal to Bargain Allegation Concerning an Expired Contract Term.

The Regions should follow the above decisional process. If the Region concludes that the contract, in fact, has expired and that the conduct at issue concerns a mandatorily negotiable provision of that expired contract, those expired mandatorily negotiable provisions are to be considered negotiable past practices. The Region must then make the same determinations as in any other unilateral change/past practice cases -- identify the past practice and determine if it has been changed. Since the contract is not in effect, the "covered by" doctrine is inapplicable.(21) Thus, if an agency acts in accordance with the expired contract terms, it has not made any change in a condition of employment and thus has no duty to give notice and bargain. If the union alleges that the agency's conduct, although not a change in past practice, nonetheless was inconsistent with the expired contract term, that issue could be raised under the expired negotiated grievance procedure which would still be in effect. If the agency has made a change in any past practice, i.e., a mandatorily negotiable matter in an expired contract, an unfair labor practice has occurred.

Thus, the "covered by" doctrine does not apply if no contract is in effect. Rather, the Regions are required to determine whether or not the challenged conduct constitutes a change in an expired contract provision, i.e., a change in a past practice. If not, there would be no duty to bargain since the agency was merely adhering to the expired mandatorily negotiable contract terms. If there was a change, absent some other defense, there would be a violation of section 7116(a)(1) and (5) of the Statute.

In refusal to bargain situations where there is no conduct other than a refusal to negotiate, either party would be required to negotiate over proposed changes in expired contract terms which are mandatorily negotiable if the request is made at the level of exclusive recognition. Therefore, a failure to negotiate over a request to change a past practice contained in an expired contract clause which is mandatorily negotiable would be a violation.

PART II. Limitations Contained in Collective Bargaining Agreements on the Exercise of Statutory Rights -- The "Contract Interpretation" Doctrine

Under certain circumstances, "contract interpretation" is a defense applicable when a party charged with committing an unfair labor practice defends that its conduct was allowed by the contract. Absent the contract, there would be a violation of a statutory right, such as the right to choose a representative or the right for a union to initiate mid-contract bargaining generally. Unlike the "covered by" defense to a failure to bargain over a specific matter (either a change or a union-initiated mid-contract proposal), the party relying upon this defense must, in fact, establish that its challenged conduct was permitted by the contract. These situations usually arise in two distinct instances. One involves the exercise of a statutory right other than the duty to bargain and the other concerns the underlying duty to bargain -- as opposed to the duty to bargain over a specific topic -- which is addressed by the "covered by" doctrine. An example of the first instance is when an agency refuses to recognize a steward from a particular facility as a representative of a unit employee from another facility, based upon its belief that the contract limits employees to representatives from their own facility. Absent a contract defense, this would normally be a violation of the Statute since a union has a statutory right to select its own stewards. However, if the agency is correct that the contract limits that right and that the agency's action was consistent with that contract, there would be no violation based on the "contract interpretation" defense. An example of the second instance is when an agency refuses to bargain on the basis that the underlying duty to bargain in the first instance is addressed in the contract and that its refusal to bargain is consistent with that contract. Unlike the "covered by" defense where there is no duty to bargain if the matter is covered by the contract, in this situation the party refusing to bargain must establish that it has correctly interpreted the contract.(22)

A. Establishment of the "Contract Interpretation" Doctrine

1. Purpose of the "Contract Interpretation" Doctrine

In Internal Revenue Service, Washington, D.C., 47 FLRA No. 193, 47 FLRA 1091 (1993) (IRS, Washington D.C.), the Authority reexamined its approach to resolving a case in which an agency argues that it was privileged to take certain action based on provisions of a collective bargaining agreement.The Authority concluded that in unfair labor practice cases where the underlying dispute is governed by the interpretation and application of specific provisions of the parties' collective bargaining agreement, it will no longer apply the "clear and unmistakable waiver" analysis. In adopting an approach in which the Authority will determine the meaning of collective bargaining agreements and rejecting "deferral" to the grievance-arbitration process, the Authority confirmed its jurisdiction and power to interpret collective bargaining agreements to the extent necessary to resolve an unfair labor practice case. Thus, the Authority held it will determine the effect of contract rights on statutory rights by determining the meaning of any contract provision raised as an affirmative defense to an alleged violation of the Statute.

Simply stated, the "contract interpretation" doctrine means that if agency or union conduct is challenged as an unfair labor practice and the charged agency or union defends on the basis that the contract permitted the challenged conduct, the Authority must and will interpret the contract to decide if the charged agency or union properly relied on the contract and thus did not commit an unfair labor practice. The test is no longer whether the statutory right at issue was clearly and unmistakably waived by a party, but rather whether the acting party properly interpreted and applied the contract provision. For if a party only acted in accordance with its legal contract, it cannot have violated the Statute.

2. The "Contract Interpretation" Test

The Authority in IRS held that "when a respondent claims as a defense to an alleged unfair labor practice that a specific contract provision of the parties' collective bargaining agreement permitted its actions alleged to constitute an unfair labor practice, the Authority, including its administrative law judges, will determine the meaning of the parties' collective bargaining agreement and will resolve the unfair labor practice accordingly."(23) The Authority applies the same standards and principles interpreting collective bargaining agreements as applied by arbitrators and courts in the Federal and private sectors.

B. Investigating and Deciding "Contract Interpretation" Cases

1. First Determine Whether There is a Statutory Violation Absent the Contract Clause at Issue

As with the "covered by" defense, when a party raises a contract clause as a defense to alleged unlawful conduct, the Regions should begin their inquiry by initially determining whether there would be a violation of the Statute in the absence of the contract. For example, if a charge alleges that an agency refused to provide certain information to the union, the Region should first determine if there was a statutory right to that information under section 7114(b)(4) of the Statute before interpreting the contract to decide if the contract excused the provision of the information in the particular circumstances presented.

2. Review Applicable Contract Clauses Where "Contract Interpretation" May Be a Viable Defense

If a Region concludes that there would be a violation of the Statute absent the contract, the Region should then apply the Authority's "contract interpretation" test to determine if the contract is a defense to the challenged action. The Regions should inquire into this defense when investigating and deciding cases in the same manner in which the Regions currently make inquires about other potential defenses to unfair labor practice charges.

C. Application of the "Contract Interpretation" Doctrine

1. Interpreting Contracts Discussing A Non-bargaining Statutory Right

The Regions are required to interpret agreements when a party relies on the contract as a defense to conduct alleged to be violative of statutory rights, which conduct otherwise would have been violative of the Statute. In those situations, the Regions will interpret the agreement to determine if the party's alleged violative conduct was permitted by the contract. For example, if the contract addresses the duty to furnish information, and an agency relies on the agreement in refusing to furnish information otherwise encompassed within section 7114(b)(4) of the Statute, the Region must interpret the agreement to determine if the contract, in fact, permits the refusal to furnish the data.(24)

In a typical situation where the union is alleging that the agency violated a statutory right, it is imperative to recognize that the test is not whether the union clearly and unmistakably gave up the statutory right at issue. Nor is the test whether the agency has presented an arguable interpretation of the contract to support its actions. Rather, the test is which party is correct in its interpretation of the contract clause at issue, the agency or the union.(25) To date, these decisions reflect that the bargaining history, to the extent any exists, and the past manner in which the parties interpreted the clause at issue is important in deciding the meaning of the clause and its application to the particular circumstances presented. The Authority has remanded cases to Administrative Law Judges to obtain more record evidence on the meaning of disputed contract terms raised as defenses to alleged violations of statutory rights.(26)

2. Interpreting Contracts to Determine The Statutory Duty To Bargain

When the underlying statutory duty to bargain is addressed in the contract, the Regions are required to interpret the agreement to decide whether there is a general duty to negotiate. For example, the Authority has held that if the duty to negotiate over union-initiated mid-contract proposals, a statutory right, is addressed in the contract, the matter should not be considered covered by the contract. Rather, the Regions are required to interpret the contract and decide whether the contract requires bargaining or permits the refusal to negotiate.(27)

D. Strategies to Avoid "Contract Interpretation" Disputes

1. Ensure That the Parties Have a Mutual Understanding When Contracts Place Limitations on Non-Bargaining Statutory Rights

Central to the application of the "contract interpretation" doctrine is the concept that "parties may define limits on rights, including bargaining rights under the Statute."(28) If parties agree to certain contract terms that place limitations on the exercise of statutory rights, the parties should acknowledge that as the intent of the clause at issue. For example, if the parties negotiate a contract designating that stewards can represent employees only from their own facility or building, the union should be aware that it has limited its right to designate a steward from another facility or building. Similarly, if the parties put time limits for submitting proposals in their agreement, the parties should recognize that proposals that might still be submitted in a reasonable period of time from notice of a proposed change, but which are not timely under that agreed upon clause, will foreclose bargaining over the matter at issue.(29)

Similar to techniques to avoid "covered by" disputes, this guidance calls for a mutual understanding between the parties over how they will deal with each other during the term of the agreement. Again, absent such a recognition of what has been agreed to in the contract, the possibilities increase that an agency will take an action based on its belief that it is acting in accordance with the contract and the union will file an unfair labor practice charge alleging the violation of a statutory right.

The parties can attempt to avoid disputes by clearly stating exactly what they have agreed to, and acknowledging the effect of that agreement on how they will deal with each other during the term of the contract. The Regional Offices should be available to assist parties in avoiding contact interpretation disputes.

2. Ensure That the Parties Have a Mutual Understanding When Contracts Place Limitations on the Statutory Duty to Bargain

Similarly, the parties should clearly state if they have placed restrictions on the otherwise statutory right to bargain over union-initiated mid-contract bargaining proposals.(30) Rather than litigate this issue and endure the difficulties that such litigation brings to the collective bargaining relationship, the parties should be clear in their contract if they intend to place restrictions or curtail in any manner the statutory right of unions to initiate mid-contract bargaining over matters not covered by the contract at the level of exclusive representation during the life of the contract.

PART III. The Duty to Bargain Over Union-initiated Requests to Bargain During the Term Of an Agreement -- "Union-initiated Mid-Contract Bargaining"

A. The Duty to Bargain

The Authority has found a statutory duty to engage in mid-contract bargaining initiated by the union. In Internal Revenue Service, 29 FLRA No. 12, 29 FLRA 162 (1987) (IRS), the Authority held that the Statute requires an agency to engage in mid-contract bargaining over negotiable union-initiated proposals covering matters that are not contained in or covered by a collective bargaining agreement, unless the union has given up its right to bargain about the subject matter involved.(31)

The Authority has since reaffirmed IRS and has thus rejected the holding of the Fourth Circuit in Social Security Administration v. Federal Labor Relations Authority, 956 F.2d 1280 (4th Cir. 1992).(32) Thus, the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not addressed in the agreement.

B. Disputes over the Level of the Duty to Bargain

The duty to bargain under the Statute lies at the level of exclusive recognition.(33) In the absence of agreement between the parties, or other appropriate delegation of authority, negotiations are required only at the level of exclusive recognition.(34) Parties thus have an obligation to bargain at the level of exclusive recognition with a properly authorized designee of the other party.

It is important to recognize the distinction between the duty to bargain below the level of exclusive recognition and the situation when a party at the level of exclusive recognition designates a representative to represent the exclusive representative.(35) In the former situation, there is no duty to bargain absent agreement between the parties. In the latter situation, the bargaining obligation remains between the parties at the level of exclusive recognition.(36) The Authority's HHS decision, although most cited for the "covered by" doctrine, also established that a party at the level of exclusive recognition is obligated to bargain with a representative of the other party even if that representative may be at a level of that party below the level of recognition - if that representative was properly designated to act for the exclusive representative.(37)

C. Disputes Over Whether the Contract Forecloses the Obligation to Negotiate Over a Union-initiated Mid-Contract Bargaining Request

As discussed in Part II, the "contract interpretation" doctrine is applicable in deciding if a contract forecloses a union from requesting to bargain during the life of the contract over a matter which is not covered by the contract. This type of dispute concerns the underlying duty to bargain in the first instance, as opposed to whether there is a duty to bargain over a particular matter. As I noted above in Part I, I am of the view that an agency may not relieve itself of a statutory obligation to bargain merely by showing that the parties' addressed that obligation in their agreement. Rather, that agreement must be examined and a determination made as to whether the agency, in fact, was correct that the contract relieved the agency of the statutory obligation to bargain.

D. Disputes over the Subject Matter Within the Mid-Contract Bargaining Obligation

As discussed in Part I, the "covered by" defense is applicable to union-initiated mid-contract bargaining. Thus, even though there is a statutory right for a union to request mid-contract bargaining, there is no duty to bargain if the "matter" over which the union seeks to bargain is covered by the contract. The Regions should apply the "covered by" test outlined in Part I when determining whether there is a duty to bargain over a particular mid-contract bargaining proposal initiated by the union.

PART IV. Difference between Violations of Contract Rights and Violation of Statutory Rights

A. Contract Rights are Enforceable Through Negotiated Grievance Procedures

The Statute sets forth certain rights and obligations for labor organizations and agencies within its coverage. One of those rights and obligations is the duty to bargain over conditions of employment of bargaining unit employees. Indeed, it is this right and obligation which is examined in this Guidance Memorandum with relationship to collective bargaining agreements. There is a fundamental and critical difference between rights granted under the Statute and conditions of employment and rights established through collective bargaining. Rights granted under the Statute are enforceable through the unfair labor practice procedure. Conditions of employment and rights established through collective bargaining and evidenced in contracts, except for one doctrine discussed below, are enforceable only through the parties' negotiated grievance procedure.

Sometimes a Regional Office receives unfair labor practice charges alleging that an unfair labor practice has been committed because a contract clause has been violated. Unless that alleged contract violation constitutes a "repudiation" as discussed below, there would be no violation of the Statute. Plainly stated, most contract violations do not constitute unfair labor practices. Absent a repudiation of a contractual obligation, the parties are left with the process they have negotiated to resolve these types of disputes -- their negotiated grievance procedure.

It is difficult at times to determine whether the right which is the subject of the dispute is a contract right or a statutory right. One test which the parties may find useful is to ask themselves whether the right to bargain would exist even if the parties did not have a contract. For example, even without a contract, parties have the statutory right to notice and bargaining prior to the implementation of a change in a condition of employment.(38) And as discussed in Part III, unions have a right to initiate bargaining mid-contract over matters not covered by the contract. In contrast, the duty to bargain supplemental agreements below the level of exclusive recognition (discussed in Part VI) and the duty to bargain pursuant to reopener provisions (discussed in Part V) are dependent upon contractual terms providing for such bargaining. Similarly, when a dispute involves a non-bargaining right, the same question may be used -- whether the asserted right would exist without a contract. For example, the right to post materials on a bulletin board does not exist absent agreement between the parties,(39) while the right of employees not to be treated differently because of their protected union activity does exist absent an agreement.(40)

B. Repudiation of Contract Clauses as an Unfair Labor Practice

A violation of a contract clause is an unfair labor practice only when it constitutes a "repudiation" of that clause. The Authority has recently clarified the analytical framework it will follow in determining whether a party's failure or refusal to honor an agreement constitutes a repudiation of a collective bargaining agreement and hence, an unfair labor practice.

The Authority in Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA No. 72, 51 FLRA 858 (1996) (375th Mission Support), reaffirmed its earlier rationale articulated in Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA No. 106, 40 FLRA 1211, 1218-19 (1991) (Warner Robins) that:

We find that the nature and scope of the failure or refusal to honor an agreement must be considered, in the circumstances of each case, in order to determine whether the Statute has been violated. Because the breach of an agreement may only be a single instance, it does not necessarily follow that the breach does not violate the Statute. That suggests that a single breach of an agreement, no matter how significant, would not violate the Statute. Rather, it is the nature and scope of the breach that are relevant. Where the nature and scope of the breach amount to a repudiation of an obligation imposed by the agreement's terms, we will find that an unfair labor practice has occurred in violation of the Statute.

The Authority examines two elements in analyzing an allegation of repudiation: "(1) the nature and scope of the alleged breach of an agreement (i.e., was the breach clear and patent?); and (2) the nature of the agreement provision allegedly breached (i.e.,did the provision go to the heart of the parties' agreement?)."(41) In examining the first element, the evidence must establish a clear and patent breach of the agreement. If the meaning of the contract term at issue is unclear, and a party acts in accordance with a reasonable interpretation of that term, there would be no clear and patent breach. It is critical to understand that even if the conduct might be found by an arbitrator to violate the contract, that violation does not constitute a repudiation since it was not clear and patent.

The second element of the repudiation doctrine requires that the clear and patent violation of the contract concerns a matter which goes to the "heart" of the parties' contract. The Authority has not defined the requirement of going to the "heart" of the agreement further. Rather, it has evaluated each case on its facts to decide whether the clear and patent breach reached that level of importance. Thus, we must examine the specific factors relied upon by the Authority in deciding whether a clear and patent breach went to the "heart" of an agreement in order to ascertain which factors must be evaluated when making that determination.

C. Application of the Repudiation Doctrine

1. "Clear and Patent" Breach

A review of the significant repudiation cases decided by the Authority since issuance of Warner Robins indicates that unless the evidence establishes a "clear and patent breach" of a contract, as opposed to just a possible breach or a "good faith" breach based on a reasonable interpretation, the Authority will not find a repudiation. When finding no clear and patent breach, the Authority has relied upon such factors as whether the agency's interpretation of the agreement, even if a breach of that agreement, was a mistake, the agreement was ambiguous and the agency had not "disowned, rejected, or refused to recognize the validity of the agreement";(42) and whether the agency's interpretation of the agreement was reasonable.(43) In those cases where the Authority has found repudiations, the Authority found the first part of the repudiation test ("clear and patent" breach) satisfied by a showing that there was no claim that the meaning of any particular agreement term was unclear or that the agency acted in accordance with a reasonable interpretation of the agreement and that the agency acknowledged its action as contrary to the agreement;(44) and the agency's clear indication that it would refuse to comply with a settlement agreement which was unambiguous.(45)

Thus, in determining whether a breach of an agreement is "clear and patent," the Regions should focus on whether the language of the agreement is ambiguous and susceptible to the charged party's interpretation and whether that interpretation is reasonable. The Region's should also take into consideration whether the charged party acknowledged that it would not abide by the agreement, even if based solely upon a mistaken belief that the agreement was unlawful. Consistent with the approach set forth by the Authority, the Regions should examine "the nature and scope of the failure or refusal to honor an agreement ... in the circumstances of each case in order to determine whether the Statute has been violated."(46)

2. "Heart" of the Agreement

Even if the breach of an agreement is determined to be "clear and patent," that breach must go to the "heart" of the agreement to constitute a repudiation and thus an unfair labor practice. The Authority has found clear and patent breaches of clauses that go to the "heart" of a contract when an agency failed to maintain indoor smoking facilities until negotiations with the union concerning the provision of outdoor smoking facilities had been completed as required by a smoking agreement executed at the level of exclusive recognition.(47) Breaches going to the "heart of an agreement also have been found when an agency clearly refused to honor a settlement agreement based on its belief that the agency representative had no authority to enter into the agreement(48) and when an agency refused to grant certain unit employees backpay for temporary promotions as required by a settlement agreement based on its belief that the agreement was unlawful.(49)

These cases all involve situations where the agreement breached dealt only with one basic topic, i.e., how the parties will deal with each other while negotiating a new smoking policy and the settlement of specific disputes. In finding that the "clear and patent" breaches went to the "heart" of the agreement, the Authority relied upon such factors as whether the breach was contrary to the agreement's purpose and whether the matter at issue was a significant concern to unit employees. I do not view these few decisions as limiting the situations for a repudiation to those involving an agreement which addresses only one topic or where the breach is acknowledged or based upon a difference of opinion over the agreement's legality. Rather, any breach, even a single breach, of a clause in a collective bargaining agreement or in a memorandum of understanding or in a settlement agreement, or even a breach of an entire agreement, can constitute a repudiation and an unfair labor practice if that breach is "clear and patent" and involves a matter which is of such significance to the agreement that the breach, in effect, negates the purpose and intent of that agreement. I also am of the view that based on the repudiation test as established by the Authority, the vast majority of disputes over breaches of contracts will not be able to satisfy the repudiation test and thus would not constitute unfair labor practices, even though they may well be contract violations. Therefore it is critical that the charging party evaluate whether its dispute is a contract matter or a repudiation before filing an unfair labor practice charge because the election of one procedure over the other precludes a latter filing utilizing the other procedure. Thus, under the second sentence in section 7116(d) of the Statute, if a union files an unfair labor practice alleging a repudiation and the charge is dismissed or withdrawn, the union may not seek redress under the negotiated grievance procedure even if in fact a breach of the agreement has occurred.(50)

PART V. The Duty to Bargain Pursuant to Reopener Clauses Contained in Collective Bargaining Agreements

A reopener provision is a contract clause which provides for renegotiations during the term of the agreement. Such clauses often are limited to certain time periods during the term of the agreement and sometimes limit the number of topics or clauses that can be reopened or may even specify which particular topics or clauses may be reopened. These clauses, however, could also provide for no limits on what matters could be raised.(51)

Reopener provisions are a mandatory subject of bargaining because they deal with the duration of certain agreed upon conditions of employment.(52) Like all other mandatory subjects of bargaining, the parties may insist to impasse if agreement over whether the contract will be reopened during its term is not reached.

Once the parties have reached agreement on a reopener clause, the parties have created a contractual right and obligation, and not a statutory right and obligation. As with all other contractual rights, the breach of that right does not constitute an unfair labor practice unless it amounts to a repudiation.(53) Similarly, disputes over what matters are subject to a reopener provision raise contractual matters and not statutory rights. That is, these disputes raise questions about what the parties agreed to bargain over during the life of the agreement. Applying the general rule suggested to differentiate between contractual rights and statutory rights, absent the contract there would be no right to reopen the contract because no contract would exist. Thus, disputes involving contractual matters do not constitute unfair labor practices unless they amount to a repudiation.

PART VI. The Duty to Bargain Supplemental Agreements Below the Level of Exclusive Recognition

A supplemental agreement is an agreement between a level of the agency and the union which is located below the level of exclusive recognition (for example, a facility which is part of the agency and a local union which is part of the exclusive representatives council) which establishes conditions of employment for unit employees at that level (for example, the facility) in addition to those established in the master contract. As discussed in Part III on union-initiated mid-contract bargaining, the statutory duty to bargain exists only at the level of exclusive recognition. Thus, there is no statutory duty at the level of exclusive recognition to bargain over proposals allowing for supplemental agreements which seek to create an obligation to negotiate below the level of exclusive recognition. Accordingly, the topic of supplemental agreements is a permissive, not mandatory, subject of bargaining and as such, neither party can lawfully insist to impasse over an agreement at the level of exclusive recognition to negotiate supplemental agreements.(54) For example, if a party at the national level submitted a proposal requiring certain details on smoking to be worked out by bargaining at each facility, the other party also at the level of exclusive recognition could refuse to bargain over delegating its statutory authority to its local managers to bargain at the local level. Similarly, because supplemental agreements are permissive matters, their terms expire when the master agreement expires.(55)

If the parties at the level of exclusive recognition agree to negotiate supplemental agreements, they have created a contractual right and obligation and not a statutory right and obligation. Again, applying the suggested test, there would be no duty to bargain a supplemental agreement if there was no contract; hence the right to negotiate supplemental agreements, if one exists, is derived from the contract and is a contract right. Thus, any dispute over whether a party has failed to enter into negotiations over a supplemental agreement at a local level presents a dispute over what the parties intended at the level of exclusive recognition when they agreed to supplemental contract bargaining. As with all contractual matters, these disputes should be resolved by the mechanism the parties have agreed to in their master agreement, usually the negotiated grievance procedure. Accordingly, if a local union files an unfair labor practice charge alleging that a facility failed and refused to negotiate a supplemental agreement at the facility where the local union has jurisdiction, the charge would be dismissed, absent withdrawal, unless the breach of the contractual obligation created at the level of exclusive recognition was "clear and patent" and went to the "heart" of the master agreement so as to constitute a repudiation. For example, if the parties at the national level agreed in their master contract to have supplemental agreements over smoking, and one party refused to negotiate over certain proposals at the local level, absent a repudiation, there would be no unfair labor practice.

Similarly, disputes over what specific matters would be bargained as part of any supplemental agreement concern contract matters and do not raise statutory issues, absent the establishment of a repudiation.(56) As with other contract rights, allegations that supplemental agreements have been breached also do not raise unfair labor practices unless that breach constitutes a repudiation. For example, if the parties at the local level where supplemental bargaining has been provided for in the master contract disagree over whether certain proposals are bargainable at that level, that dispute concerns contract rights and, absent a repudiation of the master agreement, does not constitute an unfair labor practice.

 

 

 


Endnotes

1. The duty to bargain over union-initiated mid-contract proposals is discussed in Part III.

2. HHS, 47 FLRA at 1017.

3. HHS, 47 FLRA at 1017-1018.

4. Equal Employment Opportunity Commission, Washington, D.C., 52 FLRA No. 45, 52 FLRA 459, 460 (1996) (EEOC).

5. See Defense Logistics Agency, Defense Contract Management District South, Defense Contract Management Area Operations Dallas, Dallas, Texas, 52 FLRA No. 54, 52 FLRA 572, 574 (1996) (DLA) (EEOC "in no way obviates the duty of an agency to deal with a union in good faith").

6. The number in parenthesis next to the case name is the number of the case on Attachment 1.

7. Section 7101 of the Statute.

8. U.S. Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 36 FLRA No. 65, 36 FLRA 567, 570-72 (1990), cited with approval after issuance of HHS in Defense Distribution Region West, Lathrop, California, 47 FLRA No. 106, 47 FLRA 1131 (1993) (DDRW). Cf. USDA Forest Service where the evidence did not establish an "inconsistent past practice".

9. There normally is no duty to modify an existing agreement, except in accordance with the manner set forth in that agreement; for example, a request to renegotiate a contract during an open period pursuant to a reopener clause (discussed in Part V).

10. Air Force Materiel Command, 51 FLRA at 1535.

11. A summary of this decisional analysis is attached as Attachment 2.

12. The discussion in this section concerns permissive subjects of bargaining which already have been negotiated and agreed upon by the parties. The analysis does not concern the duty to negotiate over permissive subjects of bargaining under the mandate of Executive Order 12871.

13. Department of the Treasury, Internal Revenue Service, Washington, D.C., 37 FLRA No. 115, 37 FLRA 1423 (1990) (DOT).

14. See the cases cited in DOT, 37 FLRA at 1430-31.

15. See, e.g., Adjutant General, State of Ohio, State of Ohio, Ohio Air National Guard, Northington, Ohio, 21 FLRA No. 124, 21 FLRA 1062, 1070 (1986).

16. DOT, 57 FLRA at 1431.

17. INS, Del Rio, 51 FLRA at 773 (citing Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington, and Federal Aviation Administration, Washington, D.C., 14 FLRA No. 89, 14 FLRA 644, 647 (1984)).

18. See, e.g., Department of the Air Force, 35th Combat Support Group (TAC), George Air Force Base, California, 4 FLRA No. 5, 4 FLRA 22 (1980) (the grievance procedure of an expired contract must be honored in the absence of an agreement to the contrary or unless modified by the parties); Department of Defense, Department of the Navy, Naval Ordnance Station, Louisville, Kentucky, 4 FLRA No. 100, 4 FLRA 760 (1980) (an activity violated the Statute by unilaterally changing two mandatory subjects in an expired agreement); and Department of Health and Human Services, Social Security Administration, 44 FLRA No. 100, 44 FLRA 870 (1992) (a clause in an expired contract was an appropriate arrangement and thus as a mandatory subject of bargaining could not be unilaterally changed).

19. See Army and Air Force Exchange Service, Fort Hood, Texas, 32 FLRA No. 17, 32 FLRA 124 (1988) (arbitrator's award based on expired contract provision is enforceable).

20. This doctrine was recognized by the Authority in footnote 4 in INS, Del Rio, 51 FLRA at 773, where it notes "the respondents acknowledge that it would have been obligated to bargain with the exclusive representative over its assignment policy."

21. For example, if a party intends to take an action and the matter which is the subject of that action would be covered by the contract under the "covered by" doctrine but is not "expressly contained" in the expired contract, that action would constitute a change. Thus, had the contract been in effect, that action would have been covered by the contract, but since the contract has expired and the matter is not expressly contained in the contract, the party desiring to make that change must first fulfill the statutory bargaining obligation to: (1) give notice and afford the other party the opportunity to bargain; or (2) engage in term bargaining. Either party may require that the parties engage in term negotiations rather than negotiations only over specific proposed changes after a contract expires.

22. The party refusing to bargain cannot simply defend that the "matter" of the duty to bargain is covered by the contract. Rather, the party refusing to bargain has the burden of establishing that it correctly refused to bargain under the contract.

23. IRS, 47 FLRA at 1103.

24. See, e.g., IRS, Washington D.C. and DDRW.

25. This differs from the test used to determine if a party has repudiated a contract clause, where an arguable interpretation would be a valid defense to an allegation of repudiation. See the discussion in Part IV.

26. See, e.g., U.S. Department of Justice, Immigration and Naturalization Service, Chicago District Office, Chicago, Illinois and American Federation of Government Employees, Local 2718, AFL-CIO, 52 FLRA No. 66, 52 FLRA 686 (1996) (stipulation remanded for more material facts necessary to interpret and apply the contract provision which the agency relied upon as permitting its refusal to bargain over a specific matter)

27. See, e.g., Department of Health and Human Services, Social Security Administration, 47 FLRA No. 111, 47 FLRA 1206 (1993) (SSA) (the Authority remanded for a determination concerning the meaning of applicable agreement provisions addressing the duty to bargain mid-contract). See also United States Marine Corps, Washington, D.C., 48 FLRA No. 13, 48 FLRA 123 (1993) and U.S. Department of the Navy, Marine Corps, Washington, D.C., 48 FLRA No. 22, 48 FLRA 278 (1993).

28. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 51 FLRA No. 125, 51 FLRA 1532 (1996) (AFMC).

29. See U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 52 FLRA No. 24, 52 FLRA 256 (1996) (union proposals in response to a proposed management change were untimely under the contract provisions governing bargaining) and AFMC, 51 FLRA at 1536 ("[t]he Authority evaluates the timeliness of a union's proposals under either the parties' agreed upon contractual time limits or the Statute").

30. The duty to bargain over union-initiated proposals during the term of an a contract is discussed in Part III.

31. In IRS, the Authority adopted the decision of the United States Court of Appeals for the District of Columbia Circuit in NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987). Cf. U.S. Department of Energy, Washington, D.C., 51 FLRA No. 13, 51 FLRA 124 (1995) (agency interfered with the bargaining relationship at the level of exclusive recognition by disapproving a contract clause granting the union a contractual right to present mid-term proposals over matter not covered by the contract), reversed No. 95-2949 (4th Cir. 1997).

32. U.S. Patent and Trademark Office, 45 FLRA No. 110, 45 FLRA 1090 (1992) and U.S. Department of Energy, 51 FLRA No. 13, 51 FLRA 124 (1995), petition for review filed, No. 95-2946 (4th Cir. Nov. 6, 1995).

33. Department of Health and Human Services, 6 FLRA No. 33, 6 FLRA 202 (1981).

34. Department of Defense Dependents Schools and Overseas Education Association, 12 FLRA No. 14, 12 FLRA 52, 53 (1983).

35. Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA No. 121, 39 FLRA 1381 (1991) and Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and Wright-Patterson Air Force Base, Ohio, 39 FLRA No. 122, 39 FLRA 1409 (1991).

36. AFGE Council of Prisons Locals and Department of Justice, Bureau of Prisons and Federal Prison Industries, 5 FLRC 517, 519 (footnote omitted) (1977) (the Federal Labor Relations Council found that when "in a comprehensive bargaining unit . . . matters which pertain only to one or more facilities within the unit are proposed in negotiations at the level of recognition, such a proposal would not fall outside the obligation to bargain under section 11(a) [of Executive Order 11491, as amended] . . . simply by virtue of its less than unit-wide applicability". This rule was upheld by the Authority under section 7135(b) of the Statute in HHS, 47 FLRA at 1014.

37. In HHS, the Authority concluded that the agency was obligated to bargain with the local union president who was properly designated to act for the exclusive representative. Id.

38. See, e.g., Department of Veterans Affairs, Medical Center, St. Louis, Missouri, 50 FLRA No. 57, 50 FLRA 378 (1995) (violation of the Statute was found when an agency unilaterally changed a condition of employment by terminating an employee of the month program without notice and bargaining).

39. Department of Commerce, Bureau of Census, 24 FLRA No. 92, 24 FLRA 943, 946 (1986) (no statutory right to post materials in public area on agency property).

40. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 43 FLRA No. 33, 43 FLRA 318, 328 (1991) ("[W]here an agency grants employees a privileged means of communicating for personal items and messages that are not related to their work, it cannot prohibit the union from using that means of disseminating messages and notices related to union activity.").

 

41. 375th Mission Support, 51 FLRA at 862.

42. See Laughlin Air Force Base, Del Rio, Texas and American Federation of Government Employees, Local 1749, AFL-CIO, 52 FLRA No. 42, 52 FLRA 413, 419 (1996) (the Authority adopted the ALJ's conclusions that an activity's alleged failure to comply with a settlement agreement under which a bargaining unit employee was to be afforded priority consideration for a motor vehicle operator position when one became vacant was not a repudiation because the non-referral of the employee to the position when it became available was found to be a mistaken interpretation of ambiguous personnel regulations relating to the agreement, rather then a wholesale repudiation of obligations under the agreement).

43. See 375th Mission Support, 51 FLRA at 863 (the provision at issue could have been construed in a number of reasonable ways and thus even if a breach, it was not clear and patent).

44. See Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 52 FLRA No. 22, 52 FLRA 225 (1996) (Robins AFB).

45. See Department of Defense Dependants Schools and Overseas Education Association, 50 FLRA No. 62, 50 FLRA 424 (1995) (DODDS) and Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 50 FLRA No. 49, 50 FLRA 282 (1995) (DDRE).

46. Warner Robins, 40 FLRA at 1218.

47. Robins AFB, 52 FLRA at 230.

48. DODDS, 50 FLRA at 426.

49. DDRE, 50 FLRA at 282.

50. Olam Southwest Air Defense Sector (TAC), Point Arena Air Force Station, Point Arena, California, 51 FLRA No. 69, 51 FLRA 797 (1996).

51. See Department of the Air Force, 3800 ABW/AU, Maxwell Air Force Base, Alabama, 39 FLRA No. 128, 39 FLRA 1461 (1991) (the parties' broad reopener clause allowed for negotiations on all subjects in the same manner as contract negotiations over a new agreement).

52. See American Federation of Government Employees and U.S. Department of Energy, Morgantown Energy Technology Center, Morgantown, West Virginia, 47 FLRA No. 39, 47 FLRA 470, 472 (1993) (proposal that either party may reopen the contract to renegotiate a maximum of two articles contained in the contract is negotiable).

53. See the discussion on the concept of repudiation in Part IV.

54. See Sport Air Traffic Controllers Organization (SATCO), 52 FLRA No. 32, 52 FLRA 339, 347 (1996), reconsideration denied, 52 FLRA No. 52, 52 FLRA 561 (1996), petition for review filed, No. 96-71081 (9th Cir. Nov. 12, 1996) (insistence to impasse on the use of a recording device during negotiations, a permissive subject of bargaining, is an unfair labor practice).

55. See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 43 FLRA No. 49, 43 FLRA 549, 569 (1991) (a supplement to a national agreement terminated upon the expiration of the national agreement).

56. See U.S. Department of Veterans Affairs, Regional Office, Cleveland, Ohio and American Federation of Government Employees, Local 2823, 47 FLRA No. 28, 47 FLRA 363 (1993) (exceptions to an arbitration award denied where arbitrator ruled on a grievance over the negotiation of certain proposals for inclusion in a supplemental local agreement).