National Treasury Employees Union and U.S. Customs Service, Washington, DC, 0-NG-2637, September 25, 2003, 59 FLRA No. 35

In a split decision, FLRA found that the agency could elect not to bargain on union proposals having the effect of limiting the "covered by" doctrine only to matters specifically addressed in existing agreements. Member Pope dissented: Since she didn't view the "covered by" doctrine as being linked to any unilateral right under the LMR statute, she would have found the proposals a mandatory subject of bargaining. National Treasury Employees Union and U.S. Customs Service, Washington, DC, 0-NG-2637, September 25, 2003, 59 FLRA No. 35

The two proposals in dispute would require the agency to engage in mid-term bargaining either over agency-initiated changes or over union requests for mid-term bargaining unless the subject matter of bargaining is specifically addressed in an agreement.

FLRA noted that the "covered by" doctrine, which the majority regarded as a statutory right, has two prongs.

Under the first prong, if a party seeks to bargain over a matter that is expressly addressed by the terms of the parties' collective bargaining agreement, the other party may properly refuse to bargain over the matter. Under the second prong, if a matter is not expressly addressed by the terms of the parties' collective bargaining agreement, but is nonetheless inseparably bound up with and, thus, an aspect of a subject covered by the terms of the agreement, the party may also properly refuse to bargain over the matter.

Thus the proposals would limit application of the "covered by" defense to the first prong.

The majority went on to note that FLRA had already, and in the majority's view, correctly held that the "covered by" defense is a statutory right, rather than a contractual right (the position taken by Member Pope). It quoted from SSA II, 55 FLRA at 377, where FLRA said, among other things, that "a statutory right, such as the refusal to bargain based on an affirmative "covered-by" defense pertaining to the parties' collective bargaining agreement, is subject to waiver." The majority continued as follows:

In this case, the proposals concern a permissive subject because they seek to limit, or partially waive, the Agency's ability to use the statutory "covered by" defense. Although application of the "covered by" defense involves an examination of the parties' collective bargaining agreement to determine what is or is not expressly encompassed in it or inseparably bound up with its terms, this fact does not detract from the Authority's previously established conclusion that the right to raise the "covered by" defense is a statutory right. Stated otherwise, the right to use the "covered by" doctrine as a defense flows from the Statute. As set forth above, SSA established the doctrine, consistent with private sector and judicial precedent, to serve the Statute's purposes of stability and repose. The doctrine is based in the Statute; it is not a right that either party must negotiate into a collective bargaining agreement in order to make use of it. [Emphasis by FLRA.]

Noting that a party can't be forced to waive a statutory right and that a proposal requiring such a waiver is a permissive subject, it concluded the disputed proposals concern permissive subjects of bargaining and are negotiable only at the election of the agency.

Member Pope didn't view the "covered by" doctrine as a statutory right because it "is not based on a unilateral right but on promoting 'stability and repose' and 'a respite from unwanted change to both parties.' The doctrine is linked to mutual interests, not unilateral rights." She would have found the proposals a mandatory subject of bargaining.

Considering the proposals in terms of their merits, as opposed to the legal issue of whether they are permissive or mandatory subjects of bargaining, it is hard to believe that any agency would knowingly agree to proposals, such as the ones in dispute in this case, that would shrink the reach of the "covered by" doctrine. Presumably agencies have an interest in "stability and repose." It is also hard to believe that FSIP--were it forced to deal with an impasse over the proposals--would ever impose proposals diluting the scope of the "covered by" doctrine.