The very term “management discretion” suggests that management can do what it wants, but FLRA ruled that is not true—or at least there are limits.  The Authority faced a case where management had the discretion to decide who worked flexiplace/telework.  Management obviously thought it could do what it wanted with that discretion—so long as it was legal. 

Management was largely correct.  For example, so long as it avoided using its discretion in a way that amounted to illegally discriminating based on race, gender, age, disability, national origin and the other prohibited grounds it was fine.  But it forgot that the labor relations laws are just as binding laws as any other statute.

Consequently, when management stopped considering requests for a while after a practice of promptly considering all requests, the union charged management with a ULP for unilaterally changing the way it exercised its discretion.  FLRA found management guilty because it stopped using its discretion without advance notice to and bargaining with the union.  (See AFGE, 55 FLRA 454)  It ordered management to “. . . make adversely affected employees whole for any annual leave used due to the Board’s failure to consider their requests for flexiplace work arrangements.”  Of course, wherever there is back pay or retroactive leave unions have the right to claim attorney fees, which can add insult to management’s injury.

While this set of facts will not come up often, it is one more thing to remember about the statutory limits on management discretion to make employment decisions.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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