HOW TO RESTRICT AGENCY DISCRETION IN BARGAINING

One of the best things unions can do for employees is to restrict management discretion over personnel decisions. Ironically, it also is one of the best things unions can do for agencies.

Let’s assume that the parties are bargaining over the telework article and the union has proposed that, “Telework will be approved within 72 hours of a request for those employees with more than two years of service, an annual rating of Acceptable or higher, whose work can be performed on telework, and who are suffering from an ailment that would otherwise cause them to take leave if required to come to the office while suffering this ailment.”

Typically, management’s first reaction will be that it sees no need for restrictions on its ability to approve telework for employees who need it.  It might even toss out that various disability anti-discrimination laws already protect the employee.

If the union’s only justification is that it wants the clause because other unions have it, or that an ailing employee recently was denied telework–unjustly in its opinion, or that some managers already do what the union is requesting, it is missing key arguments that should have a major impact on the neutral if the dispute goes to impasse resolution. Here is yet another place where it pays to either know the law or have easy access to someone who does.

For example, if the agency continues to let these decisions be made by individual managers without any guidance other than a law’s requirement to provide a “reasonable accommodation” to those who are “disabled,” the agency is playing organizational Russian roulette. Under the law, if the union can find two similarly situated employees who were treated differently when they requested telework to minimize their leave needs and the employees are of different races, national origins, or genders, it has a pretty good start on successfully charging the agency with illegal discrimination. Take the case of Geneva Ellis-Balone of the Dept. of Energy (DOE), an African-American employee. (EEOC Appeal No. 07A30125 (2004))

She asked for telework to help her through a health crisis and was denied. However, she knew of another employee whose request was not only approved, but approved without a lot of the procedural demands management made on Geneva.  Because he was Caucasian, she had grounds to charge racial and gender discrimination. Here is EEOC’s description of  what the investigation revealed.

Initially, the Commission concurs with the AJ’s finding that complainant established a prima facie case of race and sex discrimination as she was treated differently than was a White, male employee at the facility with regard to processing and approval of his application for telecommuting. As found by the AJ, the male comparison employee (E1; White male) at issue had his request to telecommute approved by the TL without further information although like complainant, he had children living at home. However, complainant’s request to telecommute was not acted upon for one (1) month, and she was then told that her request could not be approved without seven (7) items of further information. Further, as found by the AJ, complainant’s request was not approved although she sought to telecommute from roughly the same area as the facility, while E1’s request was approved while he lived 150 miles away from the facility. . . . We further concur with the AJ’s finding that the record established that complainant was disparately treated as the TL initially required a home inspection of complainant’s residence, while a physical inspection of E1’s home was never suggested. We note that in finding that complainant was discriminated against on the bases of race and sex, the AJ noted the credible hearing testimony of another White, female employee (E2) at the facility, who stated that the TL and the HRS delayed and questioned her request to telecommute and continually informed her that she could not use telecommuting as a substitute for babysitting or child care. The AJ noted that this line of questioning was not employed with E1. In finding that the agency discriminated against women on the basis of then” sex, we note the AJ’s finding that E2 testified that she was discouraged by HRM staff from requesting advance sick leave, and that she was told that if she was granted advance sick leave she would probably not return to work

The agency’s explanation for the differences were not dripping with intentional racial nor gender animus, but neither were they convincing enough to overcome the differences in how these two employees were treated. Consequently, the EEOC awarded the employee $100,000 in damages based solely on her and her husband’s testimony about how hard the denial of telework made their lives.  EEOC said,

In awarding complainant $100,000.00 in compensatory damages for emotional pain and suffering, as well as exacerbation of physical symptoms, the AJ referenced the testimony of complainant and her husband. We note that complainant did not indicate if she was treated medically for her emotional pain and suffering. The Commission finds that although a claim for non-pecuniary damages may rest on a complainant’s statement alone, we note that she did not submit evidence other than the statements of herself and her husband regarding the effects of her emotional distress on her family. Nevertheless, complainant has indicated that she experienced emotional/mental pain and suffering during the nine months that the agency discriminated against her with regard to her requests for telecommuting and advanced sick leave. The evidence does establish that based on the actions of the facility’s HRM office’s staff, complainant suffered discomfort and pain related to her pregnancy, had several uvitis flare-ups, and was depressed and stressed. The evidence also supports complaint’s statements that she felt emotionally and physically drained by having to meet the unreasonable demands of HRM staff. Further, the AJ found that the evidence of record clearly supported a finding that the physical and emotional difficulties complainant underwent over an eight month period were related to the agency’s “campaign” of harassment and discrimination. . . . As noted by the AJ, the medical evidence submitted by complainant did not support a finding that stress related to the discrimination was a proximate cause of the premature rupture of her membranes during her pregnancy, nor was the premature delivery of her daughter affected by stress related to the discrimination.

Aside from the hundred grand the agency was required to pay the employee, it likely had to pay her attorney an equal amount, and the discriminating managers  became liable for disciplinary actions because illegal discrimination is a prohibited personnel action that the representative could refer to the U.S. Special Counsel for prosecution.  While the union contract proposal would not have avoided errors like this all the time, it likely would have narrowed the chances of it happening.  Moreover, if the employee did not meet the negotiated criteria, that would give the agency a virtually uncontestable reason to deny the telework request. Sadly, agencies move through bargaining thinking that clauses limiting managerial discretion are nothing more than union power grabs that bog their managers down. They do not see how they help them manage risk and lower liabilities.

Another statutory risk management runs by retaining unbridled discretion is that it may violate labor law. Consider the situation where suddenly managers throughout the shop have overtime work to distribute.  If the agency provides no rules to follow, then it is likely that one manager will establish her own rules for distributing overtime, a second will talk over and work out the rules with her employees, and a third will change unilaterally the procedures used by his predecessor. Each of these is a labor law violation. Establishing procedures–or merely changing them, even for just those employees working for a single manager, can’t be done without notifying the union and bargaining the procedural details.

If that obligation is ignored the union could easily convince the FLRA to abolish the unilaterally set existing policies, order the negotiation of new procedures, require retroactive application the negotiated procedures, and compensate employees who would have received overtime work but for the violations of labor law. Once again, management would end up paying more than had it just agreed to a clear procedure in the term contract.  Its knee-jerk reaction to resist union demands blinded management to an opportunity to lower risk, save money, and avoid any damage to its reputation among employees.

When union’s argue their cases before the Impasses Panel or appointed private arbitrators they need to stress that lowering legal risks and financial liabilities shows a “demonstrated need” for their proposal. That may require pointing to EEOC, FLRA or MSPB decisions dealing with the specific contract clause situation, and it would not hurt to present the neutral with facts about how often these decisions were made over the last two years in the agency at the bargaining table.