U. S. Department of Defense, National Guard Bureau, Adjutant General, Kansas National Guard and Association of Civilian Technicians, Wichita Air Capitol Chapter, Local 4, 0-AR-3443, July 19, 2002, 57 FLRA No. 199.

The Authority (Chairman Cabaniss dissenting in part) turned down agency exceptions to an award in which the arbitrator, holding that the "covered by" doctrine didn't apply to contractual (as opposed to statutory) duty-to-bargain issues, found that the agency violated the agreement when it refused to bargain on the impact and implementation of its decision to change holiday work schedules.

Although the agency notified the union of changes to the holiday work schedule, it refused to bargain over the changes. When the union grieved and the matter was referred to arbitration, the parties didn’t stipulate the issue before the arbitrator who stated that he had been asked to determine whether the agency failed to meet its contractual obligation to bargain.

In the arbitration proceeding the agency argued, among other things, that the changes were "covered by" Article 10-5 of the contract and that its only obligation under that article was to provide 30 days’ notice of the changes. The arbitrator, who erroneously believed that he wasn't empowered "to determine statutory unfair labor practice charges," said that the "covered by" doctrine applied only to statutory ULPs. However, he wasn’t charged with enforcement of the statute, but was acting "to carry out the agreement of the parties to resolve by arbitration questions of the interpretation and application of" their agreement. He went on to find that under Article 23-1 the agency had a contractual duty to bargain on the impact and implementation of changes in hours of work. Finding that the agency failed to meet its contractual duty to bargain, he ordered the agency to bargain, on request, over the impact and implementation of future holiday-related shift changes.

In its exceptions to the award the agency argued, among other things, that the arbitrator erred by finding the "covered by" doctrine inapplicable. The Authority (Chairman Cabaniss dissenting), noted that the arbitrator had said that he had been asked to determine whether the agency failed to meet its contractual obligation to bargain. It went on to find that "[t]here is no basis for concluding that this case involves a claim that the Agency failed to meet its bargaining obligation under the Statute." It continued as follows:

The Arbitrator appears to have based his conclusion that the statutory "covered by" doctrine has no application in this case on his erroneous determination that he was "not empowered to determine statutory unfair labor practices." Id. However, since, as we found above, the only issue before the Arbitrator in this case was a contractual one, not a statutory one, the statutory "covered by" doctrine does not apply. Accordingly, the Arbitrator correctly concluded, albeit for the wrong reason, that the statutory "covered by" doctrine has no application in this case.

Chairman Cabaniss dissented only regarding the arbitrator'’s finding that no violation of the agency’s statutory duty to bargain was involved in the case.

[C]ontrary to the majority, I would find that a statutory unfair labor allegation is present. I would not require the Agency to specifically plead that certain contract provisions reflected statutory bargaining obligations, especially where the Agency asserts that an unfair labor practice allegation is at issue, as well as its unfair labor practice defense. I also would not defer to an arbitrator’s statement that no statutory issue is presented where no interpretation of the contract is put forward to explain how the contractual bargaining obligation is different from the statutory mandate, the provision in question expressly references "impact and implementation bargaining," a phrase which reflects what amounts to a term of art in Federal sector labor management relations, and the arbitrator expressly disclaimed any ability to review a statutory unfair labor practice allegation. As a result, I would find that the Arbitrator erred in processing this case, and would remand to afford both parties their rights and obligations attendant to a statutory unfair labor practice allegation. In doing so, I would also expressly require that the Arbitrator determine whether or not the Agency's "covered by" argument was persuasive, as well as permit the parties their right to judicial review of that ultimate decision. [Footnote omitted.]

The key to this case appears to be the arbitrator’s mistaken belief that he wasn’t empowered to pass on statutory duty-to-bargain issues. Since the parties didn'’t stipulate the issues, and the contract contained a contractual provision on "Appropriate Matters for Impact and Implementation Bargaining" which specifically listed, among the "appropriate matters," "changes to . . . hours of work[,]" he was able to enforce that provision without regard to the "covered by" doctrine.

FLRA’s determination that the "covered by" doctrine doesn't apply to contractual obligations to bargain may be used by some unions to outflank agency "covered by" defenses to union claims that the agency didn't meet its duty-to-bargain obligations by filing grievances (most contracts have provisions reiterating, and sometimes supplementing, the agency's statutory duty to bargain), instead of ULPs and citing this Authority decision in arguing that the arbitrator should not apply the "covered by" doctrine to the alleged contractual violations.

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