Two years ago we pointed out what we believed to be the error in FLRA’s thinking when it held that an agency can stand by and watch employee workloads skyrocket out of sight due to increased public demand, know that the increase is vastly changing employees’ working conditions, yet have no obligation to notify the union and bargain. Check out Bargaining Over Workload Changes.  The D.C. Circuit court has ruled on NTEU’s appeal and the news is not good, but neither is it devastating.

Briefly, the court upheld FLRA because it found that imposing an obligation to bargain “would leave an agency guessing about when its obligations are triggered by the gradual influence of external factors.”

It decided to stick to a strict interpretation of the statute which only requires an agency to notify the union and bargain when the agency “made a change in personnel policy, practice or procedures affecting unit employees’ conditions of employment.”   It seemed to have been persuaded by the fact that IRS did not initiate the additional cases the public filed and ignored the fact that the employer did nothing to maintain employee working conditions at the prior level.

By way of comparison, we wonder what the court would do if as a result of a very heavy rain storm the roof began to leak all over federal employees working below.  While at first there was only one leak, gradually dozens opened up.  The agency saw the problems this was causing employees as well as the changes they were making on their own to meet the unchanged deadlines and production standards. However, it decided to do nothing about it so that employees could continue to work under the long-standing conditions of employment.  Our best guess based on the court’s recent decision is that the employer did nothing wrong by doing nothing in the face of changes all around it.  Ironically, if it did try to mitigate the harm on employees by initiating a change, such as extending deadlines, it would be required to notify the union in advance.

Nonetheless, we said the decision is not devastating. That’s because the court said that the Authority’s decision “does not relieve an agency of its duty to respond to union-initiated proposals within the duty to bargain.” In other words, even though management chose to do nothing about the deteriorating working conditions, the union could demand to bargain when it either saw the public filing more cases or, at any time if it wanted to anticipate that happening someday.  The union would have to get by any covered-by defense and submit negotiable proposals. Moreover, the employer could let conditions continue to deteriorate until the bargain was over and a change agreed to.

One way to handle this would be to add language to the term contract that obligates the agency to notify the union regularly about the size of the workload and demand that certain accommodations be implemented if the workload went over certain levels.

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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