In order to determine: (1) whether the "covered by" or "contract interpretation" defenses must be analyzed; (2) whether a dispute concerns a contract right or a statutory right; and (3) whether a grievance or an unfair labor practice charge should be filed to obtain a remedy for a perceived wrong, the parties must be able to identify the legal issues involved in the dispute. In other words, the parties must be able to classify their dispute so that they can apply the appropriate legal tests and make informed decisions. This checklist is an aid for the Regions to assist the parties in classifying the legal issues in their dispute when a contract is involved so that the parties can make informed decisions on what action, if any, to take.

Does the dispute concern an alleged unilateral change in a specific condition of employment?

If so, even if the contract has not been raised as a defense, the "covered by" test must be examined to determine if the matter which is the subject of the change is covered by the contract.

Does the dispute concern an alleged refusal to negotiate over specific union proposals or topics submitted pursuant to a union- initiated mid-contract request to bargain?

If so, the "covered by" test must be examined to determine if the matter which is the subject of the proposals or the topics are covered by the contract.

Does the dispute concern an alleged refusal to bargain in general pursuant to a union-initiated request to bargain during the term of the contract regardless of the subject matter of the proposals or topics?

If so, the "contract interpretation" test must be examined to determine if the union gave up or limited its right to initiate mid-contract bargaining; that is, whether the contract excused the agency from negotiating mid-contract.

Does the dispute concern the duty to bargain after a contract has expired?

If so, does the matter in dispute concern a mandatorily negotiable condition of employment specifically contained in the expired contract?

If so, the determination must be made if there was a change in a past practice expressly contained in the expired contract without fulfilling the statutory bargaining obligation.

If not, was a new condition of employment implemented?

If so, the statutory obligation to bargain must be examined.

Does the dispute involve an alleged violation of a statutory right where the charged party defends that the contract allowed its actions?

If so, the "contract interpretation" test must be examined to determine if the contract placed any limitations on the right in dispute and whether the charged party complied with the contract; that is, whether the contract allowed the charged party to take the action which is alleged to be a violation of the Statute.

Does the dispute concern contract rights or statutory rights?

If the dispute concerns contract rights, relief lies with the negotiated grievance procedure unless the breach amounts to a repudiation.

If the dispute concerns statutory rights, relief lies in the unfair labor practice process.

Does the dispute concern an alleged breach of a contract?

The repudiation test must be applied to determine if the alleged breach constitutes an unfair labor practice or a contract violation.

Does the dispute concern whether bargaining should occur below the level of exclusive recognition?

If so, the level of exclusive recognition should be reviewed and the repudiation doctrine must be applied to determine if there was a breach of any contractual obligation to negotiate below the level of exclusive recognition, and if so, whether any breach constitutes an unfair labor practice or a contract violation.

Does the dispute concern whether the parties at the local level should bargain a supplemental agreement, or which topics are subject to bargaining in a supplemental agreement, below the level of exclusive recognition?

If so, the level of exclusive recognition should be reviewed and the repudiation doctrine must be applied to determine if there was a breach of any contractual obligation to negotiate a supplemental agreement below the level of exclusive recognition, and if so, whether any breach constitutes an unfair labor practice or a contract violation.

see also: Executive Summary of the General Counsel's Memorandum to Regional Directors