OPM asserts that the amount of telework agencies authorize and which positions will be eligible for telework is a management right. Image: Kosoff/Shutterstock.com
By: FEDweek StaffOPM has told agencies to review the provisions in labor-management contracts in which they have committed to allowing offsite work to certain groups of employees on a regular basis and to refuse to honor those that in their judgment “conflict with management rights.”
The memo on chcoc.gov sets up a showdown between the Trump administration and federal employee unions on what unions have viewed as a bulwark for their members against the administration’s return to in-person work drive. Unions have stressed that those contracts provide legally binding protection for employees in those bargaining units, even while agencies have broad discretion over offsite work of others.
However, the OPM memo asserts that that overall telework levels and eligibility of specific positions are “management rights” that are not negotiable under federal labor-management law. Those include “exercises of management rights to determine the agency’s mission and organization, direct employees, and assign work.”
The memo says that precedent of the FLRA—likely the first destination for grievances that unions certainly will bring against the policy, and then possibly on into federal courts—”strongly indicates that management rights include the right to determine the frequency of telework, including whether specific positions may telework at all.”
Says the memo: “Unions can negotiate procedures for determining individual telework eligibility within authorized telework levels, and appropriate arrangements for employees whose telework eligibility is altered. However, the substantive amount of telework agencies authorize and the substantive determinations of which positions will be eligible for telework is a management right. Provisions of collective bargaining agreements that conflict with management rights are unlawful and cannot be enforced.”
It says that with that view in mind, agencies should review contracts for provisions requiring them to provide minimum telework levels, that prevent them from setting maximum telework levels, or that require them to authorize telework for specific positions.
Such provisions “are likely unlawful” and under FLRA precedent, once an agency declares a clause unlawful, it can refuse to adhere to it and that any further bargaining should occur only after the agency stops complying, it says.
Agencies further are to review any criteria and procedures on approval and disapproval of telework and remote work and “re-evaluate if their interpretation of this language is too narrow and whether it unduly impedes the agency’s ability to adjust telework levels when necessary.”
It also tells agencies to comply with a more recent Presidential memo telling agencies not to finalize any contracts reached within 30 days of the change in administrations if they have not already been approved by the agency head. Any that were approved by subordinate officials during that time are not to take effect, it adds.
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