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March 5, 1997 · PR 105-97
Contact: Kim Weaver


FLRA General Counsel Joseph Swerdzewski today issued guidance to the Regional Directors on the impact of collective bargaining agreements on the duty to bargain and other statutory rights. The guidance memorandum provides a comprehensive overview of the General Counsel's views on issues arising from the impact of collective bargaining agreements on the duty to bargain during the term, and upon the expiration, of those agreements. It also explores the inter-action between collective bargaining agreements and the exercise of rights under the Federal Service Labor-Management Relations Statute.

"Collective bargaining agreements have a significant impact on the manner in which the parties can exercise their statutory rights," said General Counsel Swerdzewski. "This memorandum provides guidance to the Regional Directors in investigating, deciding and resolving disputes where a collective bargaining agreement affects the matters in dispute. The distinction between rights granted under the Statute and rights and benefits obtained through collective bargaining is significant, but is often misunderstood. In view of the importance of understanding how contracts can affect statutory rights, I have issued this guidance and made it available to the public to set forth my views and to help the parties better understand the legal doctrines that have been developed, and thereby avoid disputes."

This guidance is a continuation of the FLRA Office of the General Counsel's efforts to provide quality customer service. The guidance outlines the "covered by" doctrine established by the Authority to determine whether there is a duty to bargain over a specific topic during the term of an agreement and makes suggestions for the Regions to assist the parties in avoiding and resolving "covered by" disputes. It also explores the legal theories which the Office of the General Counsel will test in those areas where the law has not yet been developed, such as the duty to bargain after a contract expires. It discusses the limitations which a contract may place on the exercise of statutory rights, explores the "contract interpretation" doctrine, and also suggests how to avoid these types of disputes.

In addition, the guidance examines the duty to bargain over union-initiated requests to bargain during the term of an agreement. It provides guidance on distinguishing between violations of contract rights and violations of statutory rights, and discusses the "repudiation" doctrine, the duty to bargain pursuant to reopener clauses contained in contracts, as well as the duty to bargain supplemental agreements. Two attachments contain a summary of significant "covered by" cases that the Authority has decided and a decisional analysis for determining the duty to bargain after a contract expires.

The Office of the General Counsel is the independent investigative and prosecutorial component of the Federal Labor Relations Authority (FLRA) which investigates, settles and prosecutes unfair labor practice charges. The General Counsel periodically issues guidance to the Regional Directors on the parties' legal rights and duties in the context of resolving unfair labor practice charges. The Authority is the three-member adjudicatory body within the FLRA which, among other things, decides unfair labor practice cases investigated and prosecuted by the Office of the General Counsel.

An Executive Summary, in a question and answer format, of the General Counsel's Memorandum to Regional Directors entitled "The Impact of Collective Bargaining Agreements on the Duty to Bargain and the Exercise of Other Statutory Rights" is attached. At the end of the questions and answers is a checklist of questions designed to enable 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 whether "covered by," "contract interpretation" or "repudiation" is the appropriate test, and to decide whether the unfair labor practice procedure or the negotiated grievance procedure is the appropriate forum.

For a copy of the complete 47 page Guidance Memorandum or the 16 page question and answer Executive Summary, fax a request to the Office of the General Counsel at (202) 482-6608 or write to the office at 607 14th St., NW, Ste. 210, Washington, D.C. 20424 attention: "Impact of Contracts Guidance." Requests should include name, title, organization, address, telephone and fax numbers and which documents you are requesting. Questions or comments concerning the information in the Guidance Memorandum should be directed to FLRA Deputy General Counsel David Feder at (202) 482-6680, extension 203.