Number 138                    December 2000

COURT DECISIONS  |   FLRA   |   MSPB

U. S. Customs Service, Customs Management Center, Miami, Florida and National Treasury Employees Union, Chapter 137, AT-CA-80566, September 29, 2000, 56 FLRA No. 136.

The agency committed a ULP when it changed a past practice of granting administrative leave to unit employees participating in the Florida Law Enforcement Games without notifying the union and giving it an opportunity to bargain over the change. In rejecting the agency's claim that the matter was covered by the contract, FLRA clarified the "covered by" doctrine, saying that the "third" or "intent" part of the test, "is not a separate, independent criterion. Rather, it is an integral component of that part of the 'covered by' analysis to determine whether the matter sought to be bargained is inseparably bound up with and thus is plainly an aspect of a subject covered by the contract."

It had been the practice of local management to grant administrative leave to both management officials and unit employees to participate in the Florida Games, consisting of competitions in various sports, and participated in by Federal, State and local law enforcement organizations. In 1998, a local manager who was concerned that participation in the games might adversely affect staffing, sought advice and was notified by the Coordinator of the Customs Health Enhancement Program (CHEP) that CHEP had decided to participate in only one competition--the World Police and Fire Games. The manager inferred that local management was to discontinue participation in the Florida Games and, after informing the Director of this and indicating that she had not been delegated authority to approve authorization for participation in the Florida Games, the manager advised the Labor Relations Specialist to notify the union of the new policy. When the union learned of the policy change it requested negotiations, but was turned down. (The Labor Relations Specialist had been advised by the person who had negotiated the national agreement that there was no obligation to negotiate regarding the change in policy because the subject was covered by the national agreement.)

In the ULP proceedings that followed, the ALJ found, among other things, that the matter of administrative leave to participate in the Florida Games was not covered by the national agreement. As the agreement contained no reference to granting administrative leave to attend or participate in the Florida Games, he found that the express language of the agreement couldn't be said to encompass the matter in dispute. He also found unconvincing the agency's claim that the matter was inseparably bound up with the contract provision dealing with the agency's fitness program. Turning to the third prong of FLRA's "covered by" analysis, the ALJ further found that the Florida Games were not discussed during negotiations. As a remedy for the unilateral change in the past practice the ALJ ordered a status quo ante remedy.

In addressing the union's objections to the third prong of the 3-pronged test, FLRA said the following:

We take this opportunity to clarify that, to the extent that the SSA [47 FLRA No. 96] doctrine as set forth in VAMC, Denver [52 FLRA No. 2], Justice, INS [51 FLRA No. 103], and Customs Service El Paso [55 FLRA No. 16] suggests that a "third" or "intent" part of the doctrine is a separate, independent element of the SSA doctrine, it is not. If the agreement provision does not expressly encompass a matter, the Authority moves to the next part of the analysis to determine whether the matter sought to be bargained is an aspect of matters already negotiated. That analysis, of whether the matter sought to be bargained is in fact an aspect of matters already negotiated, will as deemed necessary consider the parties' bargaining history or intent as a requisite component of the examination of all the record evidence. See SSA, 47 FLRA at 1019. As examination of bargaining history and intent is clearly an aspect of the "covered by" doctrine established by private sector and Authority precedent, we reject the Charging Party's argument that such evidence cannot be considered. However, this part of the SSA doctrine, the "intent" portion of the examination of the record evidence is not a separate, independent criterion. Rather, it is an integral component of that part of the "covered by" analysis to determine whether the matter sought to be bargained is inseparately bound up with and thus is plainly an aspect of a subject covered by the contract.

Applying the "covered by" analysis to the case at bar, FLRA found that the express language of the agreement didn't address attendance and participation in the Florida games "because attendance and participation at any games, either the World Games or the Florida games, is not mentioned in the agreement." Nor was such attendance and participation "inseparately bound up with and plainly an aspect of the CHEP program or the other administrative leave provisions set forth in the agreement." (FLRA noted that the CHEP program is an ongoing individualized fitness program taken no more than 3 hours a week, and the "catch all" administrative leave provision permits supervisors to grant administrative leave for up to 59 minutes to employees who are unavoidably tardy reporting to work.) In considering the parties' bargaining history, it agreed with the ALJ that the parties didn't contemplate attendance and participation at the Florida Games when the CHEP program and the "catch all" administrative leave provisions were negotiated. FLRA accordingly concluded that the disputed matter wasn't covered by the agreement.

Nor was the practice in conflict with the agreement. "[T]he Respondent has not demonstrated how the practice is in conflict with any provision of the parties' agreement because the agreement does not establish an exclusive list of allowable uses of administrative leave."

Nor did the ALJ err in granting status quo ante relief. A return to the status quo ante "would not prohibit the Respondent from limiting the grant of administrative leave to employees seeking to attend the Florida Games when their absences would unduly impact the staffing level adequate to perform the Respondent's mission."