BARGAINING TELEWORK AND THE MANSON FAMILY TWINS
Expecting FLRA’s Abbott and Kiko to think even one baby step beyond their hatred of unions is like assuming Charley Manson will take good care of your pregnant wife while you are out of town. These two Trump appointees are haters and long ago decided that to get ahead personally in government they would slash away at collective bargaining rights. While that surely gives them a thrill each time they do it, they seem oblivious to how much it also screws up the workability of the supervisor-employee relationship.
Unions have negotiated for more than a decade the number and actual days of the week that would be available for telework. Usually those deals include a performance criterion the employee must meet to qualify for telework and the right of a manager to order the employee into the office at will for some short task. Supervisors can also pull people off telework for longer tasks under these agreements if they give the employee at least some procedural and impact protections. Those bargained arrangements have enabled managers to anticipate when their employees are in the office or at home, reduce the space needed to accommodate the workforce, and nimbly react to small or large changes in the work to be assigned.
But what happens if agency negotiators insist on the right to unilaterally decide when employees will be in the office and who can telework. Abbott and Kiko think empowering managers to bully their employees will make the sun shine brighter, rivers teem with unprecedented numbers of luscious fish, and disease disappear. That is what haters do. They fantasize about simple solutions without any thought to Newton’s third law, i.e., for every action there is always and equal and opposite reaction, much less the equally true philosophers’ observation that for every complex problem there is always a simple solutions that we know will always, always, always be wrong. Here is what we see happening if Trump’s two appointees get in the way of unions negotiating over the substantive telework rules.
At the top of the list will be a morale impact. When telework’s most basic features are negotiated, employee’s usually blame the union for any deficiencies in the program and the worst they can do is withdraw from the union. But if management is solely designing the core telework program without unions having any interest in defending the design, guess who employees are going to blame. And guess how the unions are going to ramp up that dissatisfaction. Any first line supervisor who decides to offer fewer telework opportunities than a colleague will be an active target for union pressure and employee ridicule. After all, denying employees telework typically means they must put in an extra two hours a day commuting. That kind of personal harm is not only easy for employees to understand, but also generally the gateway to the “Don’t just get angry, get even response” from those so harmed.
Right behind the impact a management-imposed telework program will have on morale will be the impact on litigation. Whether it is charging the supervisor with discriminatory disparate treatment based on any of about 16 protected civil rights class categories or a prohibited personnel action or the fundamental lack of fairness in a unilaterally implemented telework programs, grievance are likely to abound. Moreover, if the union wins on EEO grounds, the penalty will be far more severe on management than a simple contract violation, e.g., usually an order to discipline the manager, compensatory money damages, attorney fees, etc.
Next will be a Congressional letter writing campaign resulting in managers having to explain their decisions to elected representatives.
The fourth repercussion will be all the impact and implementation proposals unions can still bargain when an agency is given the power to bully employees on the basic design of the telework program. It would not take much effort for a union to turn the telework program into something that today only demands a few minutes a week of a supervisor’s time into a task that could weekly consume a few hours. Think about the agency work that will not get done while supervisors tend to the I&I duties that Abbott and Kiko never think about when they rule something non-negotiable.
Managers have the right to assign work, including the right to decide when it is done. If they assign work that can only be done in the agency office between 8 and 5 then the employee must report there at that time, e.g., think corrections officers or a VA orderly. But if some or even all the work can be done anywhere on earth, e.g., report writing, legal research, online training, then what does it gain management to refuse to share with the employee the decision about where the work is done?
Allowing unions to fully negotiate over where employees do their work when the location has little to no impact on the work to be done is one of the oldest precedents in federal sector labor relations. (AFGE and AFLC, 5 FLRA 83 (1981)) It has survived no matter which political party has controlled the White House. The only thing different now is the Abbott-Kiko mean-spirited personal agenda.