FLRA’S WORKLOAD BARGAINING SOLUTION: HUMAN TRAFFICKING

What would you call it if someone had the power to force you to work 24 hours a day, seven days a week until you fell over dead from exhaustion? What if they also had the power to assign you work that you are not qualified to do, refuse to train you, and then punish you and your family for not doing it correctly? What if they could also order you to work under unsafe/unhealthy conditions and unreasonable production standards?  Human trafficking seems like a good label for all that, although we will not condemn those tempted to call it the Kunta Kinte clause of labor law.  FLRA, however, merely calls it management’s statutory right to assign.  Here is a hypothetical conversation between Mary and her supervisor Jack that highlights the power FLRA has given managers. 

JACK:  Mary, I need you to work double shifts from 8 AM to midnight Thursday thru Monday so we can meet the XYZ deadline.

MARY:  But a month ago you approved my annual leave for Thursday and Friday because my daughter is getting married this weekend.  Besides, I will spend two hours a day commuting, which leaves me only six hours to sleep, shower, and eat.  I will collapse from exhaustion before Saturday even gets here if I cannot sleep.

JACK: Sorry, FLRA says it is my right to cancel your leave and to decide when the work must be done.

MARY: But that work is classified under a different position that is three GS pay grades higher than my salary.  Moreover, I do not even meet the minimum OPM qualifications to do it, have never done that kind of work the XYZ project demands, and I don’t know how to do it. I will need to be trained before I can do it.

JACK: FLRA says I can decide whether you need to be qualified no matter what OPM says.  As for training, FLRA also says I do not have to give you training—and I do not want to.  Figure it out as you go. Finally, I agree it is higher graded work, but consider this to be an opportunity to show me your promotion potential.

MARY: I guess Marvin can show me how to do it.  After all, he does the work full time.

JACK: I am giving Marvin the rest of the week and weekend off to attend the Star Trek convention. He has worked on his Uhura costume for months and will through a fit if I deny him his moment.

MARY: If you are saying that I will be the only one in the office this weekend working, I want to remind you that I am diabetic.  If I have an incident and pass out, I could die if no one is around.  It is dangerous for me to work alone.

JACK: So, stay away from the sweets.  I can ignore health and safety issues when assigning work and FLRA will back me up on that.

MARY:  This is insane. I will not do it.

JACK:  If you do not show up, FLRA says I can fire you.  That will be on your record forever, making it hard for you to ever get another job. Then who will feed and house your family?

MARY:  Aaaaggghhhhhh!!!!

JACK:  One other thing, FLRA lets me set the production standard and I have decided that you need to meet your own job’s work deadlines this week as well as Marvin’s.

While the Jack and Mary exchange is a little over the top to drive home a point, everything Jack did is recognized as his right to assign by FLRA.  Even though the actual language of the law (5 USC 7106(a)) only gives management the right to “assign…employees” and “assign work,”  FLRA sees so much more in those four words than the plain and ordinary meaning words. (Kind of how the Beatles looked up at the sky one night and saw “Lucy in the Sky with Diamonds.”  For those who think we are exaggerating about the state of FLRA case law at the end of this post we have quoted from several FLRA decisions spelling all this out.)

Not long ago, NTEU gave FLRA a case in which the supervisors had vastly increased the caseloads employees were assigned–without changing the quality or timeliness standards employees had to meet on each case.  All the union wanted was recognition that when management increases an employee’s workload from 75 cases to over a hundred without changing the performance production standards that is a change in working conditions, requiring I&I negotiations before it can be implemented.  However, continuing its hallucinogenic reading of the right to assign FLRA stood with management again ruling that even this small statutory obligation cannot get in the way of the most absurd work assignment decisions.  FLRA said that so long as the workload increase is caused by factors outside the employer’s control as opposed to an employer-initiated change in policy, practice or working conditions the agency can make the change without giving the union advance notice.  So,

• if citizen requests for passports suddenly triple thanks to international currency fluctuations, passport examiners can still be required to meet a three-day turnaround production goal, without any delay for appropriate arrangement bargaining,  even though 100 new requests hit their desk everyday instead of 33; (The sick irony here is that when caseloads get high at FLRA it ignores the backlog and continues at its own petty pace no matter how high agency back pay liabilities might skyrocket during the Authority delay.)
• if the local utilities have power problems causing repeated computer shutdowns at the office, making it three times as hard to complete work on time, there is no right to negotiate.
• if half the work group wins the lottery and quits immediately, leaving the other half to work everyone’s inventory, FLRA sees no right to negotiate before the remaining unlucky employees are buried with work.

It does not matter to FLRA that the actual practice that employees worked under changed or that their working conditions changed.  Unless the change was due to something under management’s control, the manager is free to stand by, do nothing, and watch employees slowly sink below the crushing pressure of what in the end is a management orchestrated speed up. (The sickening irony here is that when FLRA caseloads spike it simply gives itself more time to get to the work no matter how high agency back pay liabilities grow while the Authority creeps forth upon its petty pace.  Ditto for the federal courts that are backing FLRA’s reading of the law.)

Consequently, if a union wants to help protect its members from workload blizzards, it either must propose language as part of the term bargaining, or if the matter is not already covered by an agreement provision use its midterm right to negotiate to propose appropriate arrangements.  Speaking generally, the union must identify any job that has production or other performance standards and design proposals which install greater and greater protections for employees as caseloads rise.  For example, the opening sentence of the proposed contract section should read, “If the number of new passport requests placed in an employee’s inventory under the three-day turnaround requirement exceeds more than 33 a day, the agency will take the following actions:….” That approach permits management to let workload grow as high and ridiculous as it wishes—thereby avoiding negotiability problems, but imposes extra requirements or task on management if it chooses to do nothing and blame the public for the mess. Here are some ideas for what a union might propose to follow the colon in the sentence above.

• Implement an additional way of counting the workload before the number exceeds 33, a report will be given to the union listing the work assigned each employee individually per count category, and a meeting held with the union to discuss any evidence of a failure to maintain a fair and equitable distribution of the work once the assigned caseload exceeds 33. (Obviously, the additional way of counting the work would be far more detailed than any management presumption that every case is the same as another.  The new counting system would demand far more precision consistent with a negotiated formula.)
• Have managers meet with any employees, as often as daily, should the employee face a situation where s/he realizes that s/he will not be able to meet any performance standard due to the workload and advise that employee which work s/he is to complete that day and what work can wait.  If the manager chooses not to identify work to be delayed the employee may call a union representative to join the conversation with the manager.
• Deliver to the union a job analysis documenting how the current performance (production and/or quality) standards meet the requirements of 5 CFR 300.101-103 once the assigned caseload exceeds 33, e.g., how they fairly test the fitness of candidates for jobs, how they constitute a rational relationship between performance in the current position and a prospective position, etc. (5 CFR 300 imposes requirements on anything used in a promotion process to measure applicant potential and regulations require that performance appraisals be used in the promotion process.)

The same approach could be used to deal with the other problems normally associated with excessive workloads.  For example, a proposal could be, “Should the employer cancel an employee’s leave once the assigned workload exceeds 33, it will stay the implementation of any disciplinary action against the employee should s/he fail to report to work on the day previously scheduled as leave until any grievance or arbitration following from a decision to discipline has concluded.  Moreover, the employer will provide as part of the notice of proposed discipline a complete report on why it was unable to use other options to get the work done, e.g., overtime, a delay of a production standard, the use of a temporary employee, etc.”

Another example would be, “Should the employer assign employees to tasks for which they do not meet OPM minimum requirements and/or for which they are not trained, it will….”

It does not take a televangelist to predict that the agencies will kick and buck wildly when given any of these proposals.  Consequently, you might want to give it an option and that option would be that it VOLUNTARILY AGREES to serve advance notice on and bargain with the union, through impasse, before it assigns a workload in excess of 33 new cases per day. Bargaining is merely a procedure and nothing in the law prohibits management from agreeing to bargain over more than the labor law requires so long as that is not prohibited by law.

And of course management always has a third option, namely, it can actually do something to keep the individual employees’ workload at the 33 case level using its management discretion, e.g., suspend the three-day turnaround requirement, hold cases in a group  queue rather than formally assign them to a specific employee, etc.,

If the union cannot get relief from the agency and the excessive workload is pervasive and long-lasting, then the union’s national president or other national leader of the unit could involve the media and appropriate Congressional representatives.  That may hurt the on-going relationship the national president has with agency leaders, but the national president’s priorities have to be the members.

The union could put the issue before FLRA once again, officially asking it to reconsider its precedent, and then improve on the arguments NTEU made. Both the court’s and FLRA’s decision have little connection to the day to day practicalities of the work place and they turned on some unexplained legal conclusions, which we will shortly address in another post.

As always, if you have other suggestions for how to dealing with unmanageable workloads, send them our way via the Comment box below and we will circulate those that stop short of calling for anarchy. And never forget to check in with your own attorney before you make any legal decisions based on our thoughts.

FLRA CASE EXCERPTS ON THE ASSIGNMENT OF WORK AND EMPLOYEES

Generally

“This right encompasses the right to assign general continuing duties, to make periodic work assignments to employees, to determine when such assignments will occur, and to determine when the work that has been assigned will be performed.” AFGE 46 FLRA 1590 (1993)

The right to assign work “encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned.” …The right to assign work includes, among other things, the right to determine to whom or what positions duties will be assigned….Similarly, the right to assign employees includes the right to assign employees to positions (1980). OEA, 27 FLRA 492 (1987)

Union Provision 2 however, directly interferes with management’s right to assign work by expressly preventing the Agency from requiring employees to perform certain duties such as when the duties to be assigned are outside the employee’s regular field of work or are inappropriate to the  employee’s position or qualifications. NFFE, 16 FLRA 578 (1984)

“The right to assign work encompasses the right to refrain from assigning work….The Authority has found that requiring an agency to assign work to more employees than the number it would otherwise choose affects the agency’s right to assign work.” AFGE, 57 FLRA331 (2001)

Qualifications-Related

“The Authority has long held that the right to assign work includes establishing the qualifications and skills needed for a position or duties and judging whether particular employees meet those qualifications and skills. The Authority has also previously held that a proposal which sets forth a particular method for determining qualifications, such as a test, affects management’s right to assign employees.” FOP, 57 FLRA 373 (2001)

Leave-Related

“The Authority consistently has held that proposals which place restrictions on an agency’s right to deny the use of annual leave or rescind previously approved annual leave requests are inconsistent with management’s right to assign work under section 7106(a)(2)(B) of the Statute.” AFGE, 41 FLRA 589 (1991)

Training-Related

“It is undisputed that proposals that require management to assign work-related training to employees affect management’s right to assign work.” NAGE, 55 FLRA 1081 (1999)

Overtime-Related

“Management’s right to assign work includes the right to assign overtime and to determine when the overtime will be performed.” AFGE 55 FLRA 1078 (1999)

Performance-Related

The Authority has held that proposals requiring management to change or adjust performance expectations in light of specified factors affect management’s right to assign work. NTEU, 66 FLRA 186 (2011)

Therefore, … proposals that require an agency to change or adjust its performance expectations in light of specified factors directly interfere with management’s rights to direct employees and assign work because they constitute a substantive limitation on an agency’s ability to determine the content of performance standards. AFGE, 48 FLRA 1408 (1994)

Located-Related

“The Authority has held that if an agency establishes a relationship between job location and job duties, then a provision addressing job location would violate the right to assign work.” NTEU, 59 FLRA 679 (2004)

Light Duty-Related

That proposal would have required management to attempt to find assignments compatible with the conditions of ill or injured employees or to tailor their regularly assigned duties to meet those conditions. The Authority held that the proposal directly interfered with management’s rights to assign work and to assign employees and that it was outside the duty to bargain. NUHHA, District 1199, 28 FLRA 435 (1987)