ILLEGAL TELEWORK DEALS
What do you call it when a bargaining unit employee asks her manager to allow her to telework, the manager agrees, and they work out the details of when, where, and under what conditions? “Illegal” is what we at FEDSMILL.com call it.
The labor law prohibits managers from dealing directly with unit employees, rather than the union, over any topic that may be considered a working condition. When it happens it is called a union bypass or direct dealing. AALJ/IFPTE proved that when SSA management tried to open a new office by asking employees to volunteer, NTEU proved it when management talked directly to unit employees about what the seating arrangements should be in a group, and AFGE proved it when management worked out a last chance agreement with an individual employee. FLRA explained this concept best with the following words:
The obligation to negotiate attaches to all changes in conditions of employment, including agency changes in the conditions of employment of only one employee…(requiring negotiation when changing hours of work for one employee)….Agencies unlawfully bypass an exclusive representative when they communicate directly with bargaining unit employees concerning grievances, disciplinary actions and other matters relating to the collective bargaining relationship….Where an agency negotiates directly with unit employees concerning a change in a condition of employment, this “inherently undermines the status of the Union and constitutes a violation of the Statute.”…Such conduct violates section 7116(a)(1) and (5) of the Statute because it interferes with the Union’s rights under section 7114(a)(1) of the Statute, and also constitutes an independent violation of section 7116(a)(1) of the Statute because it demeans the Union and inherently interferes with the rights of employees to designate and rely on the Union for representation. AFGE, 55 FLRA 978 (1999)
So, if the telework program in your agency requires employees to deal directly with their managers to work out the details of when, where, how often, or under what conditions the employee can telework, that would appear to be an illegal system. The union can tolerate it or it can serve notice on management that it may no longer have those discussions or make those deals. Rather, management must either negotiate all those details with the union individual-by-individual or sign a collective bargaining agreement spelling out the details for everyone.
The union can waive its opposition to direct dealing by either not opposing a system management put in place or signing an agreement that allows for managers to deal directly with employees. However, if the parties sign an agreement and the management surprises the union by contending that the agreement permits it to unilaterally deal with employees to work out those details, the union should push back alleging management’s interpretation is not just wrong, but illegal. In addition, the union has the right to demand an immediate termination of all those arrangements. If that forces management to once again make room for those employees in the office, so be it.
Obviously, the same applies to all working conditions. If management is working out the details of AWS schedules with individual employees, or when they will work overtime, or even what assignments they will get those conversations are likely to all be illegal. Perhaps the most widespread violation we at FEDSMILL.com have seen involves managers working out critical element performance standards and expectations with employees at the beginning of each appraisal year. The union can allow that, but it can also stop it. If a group is expected to produce 100 widgets a year and the manager talks with employees about how many each agrees to do, that is a bypass of the union. The same goes for working out seasonal work agreements with individual employees.
In contrast, if the manager does not have a conversation with the employee to work out the details of some working condition, but unilaterally imposes those conditions on an employee that is likely to be another kind of ULP, namely, a unilateral change in working conditions without notifying the union and completing negotiations.
The penalty for these violations can be very costly for management. If it agreed that an employee could work a 4/10 work schedule without getting union agreement or acquiescence, the union can insist that the employee be paid overtime for each hour over eight she worked in a day on that illegal 4/10 schedule.