On October 18, 2023, the Federal Services Impasses Panel (FSIP or Panel) issued its latest decision (2023 FSIP 037) on telework. The dispute concerned negotiations over the expansion of telework and alternative work schedules (AWS) between the National Treasury Employees Union (NTEU) and the Federal Election Commission (FEC).
Because of the COVID-19 pandemic, the FEC, like every other Federal agency, permitted increased telework and AWS flexibilities. The parties agreed to reopen their labor master agreement (LMA) article that covers telework and AWS to negotiate a pilot program to temporarily, and perhaps permanently, expand the two items. The parties reached an agreement on all of the issues, except whether schedules would revert to pre-pandemic status should the pilot program end without a permanent negotiated expansion already in place.
The major issues of the dispute were regarding the number of telework days, remote work, office sharing, core days, and breaks. Since the Panel basically took remote work, office sharing, and breaks off the table, this article focuses on the telework and core days aspects of the Panel’s decision.
Initially, I wasn’t going to offer my opinion on the Panel’s decision but, the more I thought about it, I couldn’t help myself. I don’t want to “Monday Morning Quarterback” management’s strategy but instead, focus on the logic and maybe the legality of the Panel’s decision.
With the recent end of the World Series, I’ll use a baseball analogy regarding the decision; the Panel was 0 for 3. Yes, I know, management may have shot itself in the foot but, that doesn’t overcome the shortcomings of this decision.
Let’s start with what I see as a conflict with the OPM government-wide guide on telework. Titled 2021 Guide to Telework and Remote Work in the Federal Government. Leveraging Telework and Remote Work in the Federal Government to Better Meet Our Human Capital Needs and Improve Mission Delivery, the OPM guide clearly provides that telework is not an employee entitlement:
Although the Act requires Federal agencies to establish telework policies ‘under which eligible employees of the agency may be authorized to telework,’ and thus, by implication, to determine which positions are appropriate for telework, it does not mandate telework, or confer a legal right or entitlement on an individual employee to participate in an agency telework program.
The Panel, by determining that employees only have to report to their assigned duty station no more than three days a pay period, created, by default, an employee entitlement to telework for the other days of the workweek.
Additionally, at least in the description of the imposed language, I did not see a provision that would allow management to require employees to report to their duty station on telework days. For this at-bat, the Panel struck out looking (0 for 1).
Since the Panel really didn’t give any substantive weight to the OMB guidance, I believe it is worthwhile to discuss how this Presidentially appointed Panel seemed to dismiss the guidance to agencies from the Administration to “increase” in-person work.
In April 2023, the Office of Management and Budget (OMB) issued M-23-15, “Measuring, Monitoring, and Improving Organizational Health and Organizational Performance in the Context of Evolving Agency Work Environments” to the heads of executive departments and agencies.
In the government-wide memo, OMB stresses that with the end of the public health emergency, the Administration’s expectation is for agencies to substantially increase in-person work. For example, the OMB memo provides:
This spring, agencies will develop updated Work Environment Plans that describe current operational policies that are critical to improving organizational health and organizational performance. Those plans should also describe future changes to those policies aimed at improving an agency’s mission delivery. It is the expectation that as a part of these assessments agencies will continue to substantially increase meaningful in-person work at Federal offices.
Agency workforces are generally expected to increase meaningful in-person work—that is in-person work that is purposeful, well-planned, and optimized for in-person collaboration.
Planning should recognize that some operating units have improved performance while using workplace flexibilities, while also optimizing in-person work and strong, sustainable organization health and culture.
While the agency didn’t do itself any favors when talking about the benefits of in-person collaboration, the Panel’s decision seems to completely dismiss the value of in-person collaboration and the expectations of the Administration that appointed them, substituting their judgment for that of those that know the work and strategic requirements of the organization. In light of the events of the last few years regarding elections, I believe requiring an employee of the Federal Election Commission to report to the duty site four days out of ten is reasonable. The Panel is 0 for 2.
The Panel didn’t fare any better in its last at-bat of the game. Absent any other language in the agreement, and it doesn’t seem to be present in the Decision and Order itself, the edict that employees are only required to report to the duty site “no more than three days a pay period,” is inconsistent with FLRA case law.
In NTEU and Department of Agriculture, 71 FLRA 703 (2020), the FLRA ruled on the negotiability of a proposal from NTEU that would allow employees to report to the office as little as once a pay period and telework up to eight days a pay period. The FLRA addressed the proposal as it related to the number of days an employee may telework and when an employee must report to the duty station. The FLRA stated:
[W]e determine that the frequency of telework—the “when” an eligible employee may perform his or her duties away from the duty station and “when” that eligible employee must report to the duty station—is inherent to management’s right to assign work.
By allowing eligible employees to spend up to 80% of each pay period outside of the office, the proposal effectively (1) requires management to employ computer and telephonebased supervision techniques and, correspondingly, (2) precludes management from regularly using inperson methods of supervision, such as unannounced visits or spot checks. As a result, the proposal interferes with the Agency’s right to choose the method that it deems “most appropriate” for supervising employee performance. Management has the right to provide its supervisors with inperson access to employees for the purpose of directing, monitoring, and evaluating their work. Accordingly, consistent with Authority precedent, we find that this proposal affects the right to direct employees under § 7106(a)(2)(A).
While this FLRA decision was remanded to the FLRA for further proceedings regarding the specific intent of the union’s proposal and CBA and presumptive telework entitlement, the general premise of the FLRA decision is unchanged. The Panel is 0 for 3.
From a management perspective, this situation can be salvaged. Since Panel Decision and Orders are subject to statutory agency head review pursuant to 5 U.S.C. section7114(c), the Panel-imposed agreement should be submitted for agency head review to address the issues related to potential management’s rights violations.
As an aside, agencies, do yourself a favor and stop surveying employees about telework. I can’t think of a survey since the inception of telework that had employees saying anything but how much they like it, how they think they’re more productive, and how much they would like more telework days. Also, supervisors are employees. Don’t expect a different response from them.