United States Border Patrol, Livermore Sector, Dublin, California and American Federation of Government Employees, National Border Patrol Council, Local 2730, AFL-CIO, SF-CA-00599, December 18, 2002, 58 FLRA No. 56.

In a split decision (Member Pope dissenting), the Authority dismissed a complaint alleging that the activity committed a ULP when it refused to bargain over the impact and implementation of its decision to temporarily reassign two employees to different offices. It agreed with the ALJ that a provision on details in the expired agreement qualified as a "covered by" exception to the duty to bargain. "[T]he terms and conditions of employment affecting the mandatory subject of details established by the contract provisions continued after the expiration of the contract. In these circumstances, the Respondent could rely on a contractual 'covered by' defense to the same extent that it could during the term of the agreement."

The activity initially notified and bargained with the local union over the impact and implementation of its decision to temporarily reassign two bargaining unit employees. However, it discontinued such bargaining and implemented its decision when it was advised by regional labor relations personnel that there was no obligation to bargain because its proposed actions were details and covered by the National Agreement (which had expired and had not been superseded by a successor agreement). A ULP followed.

The General Counsel contended, among other things, that the reassignments weren't "details" within the meaning of the agreement. Because the national agreement didn't define the term "detail," the ALJ adopted and applied a definition found in OPM's Guide to Processing Personnel Actions--i.e., a detail is "a temporary assignment to a different position for a specified period when the employee is expected to return to his or her regular duties at the end of the assignment." In response to the General Counsel's argument that the assignments were "temporary reassignments" rather than "details," the ALJ, who concluded that the assignments were details, said that "the General Counsel does not explain how a temporary reassignment is different than a detail."

Turning to the question of whether the activity could rely on the expired agreement to detail the employees without bargaining, the ALJ noted that "the Authority has never decided the question of whether an agency may, without further bargaining, implement changes in conditions of employment in a manner consistent with the provisions of an expired agreement." But given that contract provisions on mandatory subjects of bargaining remain in effect after expiration of the agreement, and noting that "[i]n numerous contexts, the Authority has held that parties may rely upon and enforce provisions of expired agreements," the ALJ said the following in concluding that it could.

The Authority (Member Pope dissenting) agreed with the ALJ's finding that the assignments were details within the meaning of the contract. It also agreed with the ALJ's determination that the terms of the expired agreement allowed the activity to detail employees without bargaining with the union. Because there was "no evidence that a proper request was made to initiate term bargaining on the mandatory subject of details . . . the mandatory subject of details established by the contract provisions continued after expiration of the contract. In these circumstances," FLRA continued, "the Respondent could rely on a contractual 'covered by' defense to the same extent that it could during the term of the contract." FLRA accordingly dismissed the ULP.

Member Pope, who didn't address the ALJ's reasoning in finding that the agency could rely on the terms of the expired agreement in implementing the reassignments without bargaining, disagreed with his finding that the reassignments were details--not because he used the OPM definition, but because, in her view, the record evidence didn't support his conclusion that the reassignments were details.

In footnote 8 of its decision, the Authority said, in part, that this case didn't present the issue of whether the activity could have asserted a "covered by" defense "if a proper request had been made to initiate [italics added] term bargaining on the mandatory subject of details following the expiration of the agreement[.]" Contrast this with the ALJ's remark that a provision on a mandatory subject in an expired agreement remains in effect until there is agreement on something else. (See the quoted excerpt, above.) Is the Authority sending us a message, or was the reference to "initiating" bargaining a slip of the pen?

Footnote 8 also leaves open the question of whether the covered by defense is available "if there had been a past practice in existence that was contrary to the terms of the expired agreement." FLRA has ruled that where a past practice is inconsistent with an express contract term, it takes precedence over the CBA. See, in this connection, 36 FLRA No. 65, where FLRA said the following:

If the past practice regarding details was inconsistent with the CBA's detail procedures, it presumably would be controlling. Indeed, one can argue (although FLRA may not be willing to go that far) that not only the contract's express terms dealing with mandatory subjects survive the expired agreement, but also that past practices regarding mandatory subjects remain in effect.