Who Decides When Work Gets Done: Employee or Supervisor?

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By on May 28, 2019 in Human Resources with 0 Comments
Hourglass with sand pouring down through it sitting on the keyboard of a laptop computer at a workstation

Does a federal employee have the right to decide when work will be performed or is that decision one for an agency to make?

That was one of the issues in a new decision from the Federal Labor Relations Authority (FLRA) that was decided along with several other issues.

Changes at the FLRA

Democrats usually work hard to provide more benefits and issue expansive, favorable decisions to benefit unions. Republicans are inclined to more strictly follow the labor relations statute and to strive for “efficient and effective” government by requiring adherence to limitations on unions. The current administration is no exception.

Late in 2017, Colleen Duffy Kiko became the FLRA Chairman, Ernest DuBester was sworn in for a third term as an Authority Member, and James T. Abbott was sworn in for a first term as an Authority Member. DuBester was originally appointed (and subsequently re-appointed) by President Obama.

In many of the more recent decisions, there has been a 2-1 split with the new members (Kiko and Abbott) carrying the day against the frequent dissents from the third member, DuBester.

Change in the Federal LR Program

Here is an example in a recent decision from the Federal Labor Relations Authority (FLRA). It is of particular importance to labor relations specialists and negotiators for both parties.

In DODDS and Antilles Education Association, 71 FLRA No. 24, the FLRA issued a decision providing new guidance and overturning previous precedent.

FLRA Enforces Agency Right to Assign Work

In this case, the agency described a union proposal as one that would result in giving “each employee . . . sole discretion to determine when [‍certain‍] work assignments . . . occur….” This issue has now been addressed by the FLRA concluding a union cannot negotiate on a proposal to put this authority in the hands of an employee based on a union agreement.

The FLRA noted that in some prior cases, there were no restrictions on when work had to be performed. In this case, a proposal from the union that would allow a federal employee represented by the union the ability to decide when work would be performed was contrary to the limitations in the labor relations statute.

As a result, the FLRA concluded the union’s proposal at issue was not open to negotiation and it “set aside” a portion of the Judge’s ruling contrary to this new approach. In effect, the agency’s decision not to comply with an FSIP decision regarding a non-negotiable was not an unfair labor practice.

This change will generally favor agencies as unions are the charging party in almost all unfair labor practice cases. This change will make it easier for agencies to win dismissal of a case.

Overall Issue in the Case

The overall issue was whether a decision by an administrative law judge was contrary to law. The FLRA concluded the decision was contrary to law “to the extent that it requires the Agency to comply with Panel‑imposed contract provisions that involve either a previously unsettled negotiability question, or matters about which the parties reached tentative agreement before the Union requested the (Federal Service Impasses) Panel’s assistance.”

On the issue of negotiability (i.e., whether an issue is open to bargaining by a federal employee union), the FLRA used this case to reach a conclusion contrary to previous FLRA decisions. In future cases, the General Counsel (of the FLRA) will be required in an unfair labor practice complaint to specifically plead negotiability in order to avoid dismissal of a complaint against an agency.

In other words, in this instance the Federal Service Impasses Panel (FSIP) resolved an impasse without a decision on whether the topic was open to bargaining in the federal sector. Previously, the FLRA did not require dismissing an unfair labor practice (ULP) complaint because a complaint did not expressly allege that a Panel decision concerned negotiable matters.

In future cases, there will be a requirement that the ULP make this specific allegation to avoid being dismissed. But, because this is a change in the requirements for dismissing a ULP, this new requirement did not require throwing out the Judge’s decision.

Result of the FLRA Decision

The agency was found to have committed an unfair labor practice to the extent it did not comply with a decision by the FSIP concerning topics that were proper subjects of bargaining.

Despite the conclusion the agency did commit an unfair labor practice, the FLRA decision was generally favorable to the agency. It obtained a decision with a precedent that will generally be favorable to agencies in other cases and it received a decision clarifying allowing an employee to decide when work will be performed is not legal.

© 2019 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47

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