Update: the “Covered By” Test

1. Update: the “Covered By” Test September 30, 2009

2. What came next? The second test of ‘Covered By’ Is now a Mandatory Subject of Bargaining

3. NTEU and US Customs Service64 FLRA No. 22 (2009) On remand from the Court, the FLRA now says: • It is reversing its previous decision. • When to use ‘Covered by’ isn’t a unilateral decision.

4. The FLRA’s reasoning: --Reopener language, which is another way to revisit what already has been negotiated, has been held to be a mandatory subject of bargaining. --Like the grievance scope, when parties will bargain midterm is part of bargaining whose meaning for them is defined through bargaining over the controlling agreement (term agreement aka contract).

5. So what? ‘Covered by’ still applies if a matter is expressly covered by a CBA that’s in effect. BUT Management must bargain over a Union proposal to use a different standard to control midterm bargaining on matters not expressly covered.

6. For example: MaNAGEMENT must BARGAIN ON THIS LANGUAGE if the union proposes it in the contract’s MIDTERM BARGAINING ARTICLE:“UNLESS IT IS CLEAR THAT A MATTER WAS SPECIFICALLY ADDRESSED BY THE PARTIES IN [XYZ AGREEMENT], THE SUBJECT IS APPROPRIATE FOR MIDTERM BARGAINING.” (found negotiable in 64 FLRA No. 22)

7. Also found negotiable in that case: “The Union, in accordance with law and the terms of this Agreement, has the right to initiate midterm bargaining over matters not specifically addressed in [XYZ agreement].”

8. OR

9. Other language that would replace Prong 2 of the ‘Covered By’ Test, as long as the proposed language did not nullify Prong 1 of that Test by requiring midterm bargaining even if a matter is “expressly covered by” the CBA.