Panel: Employees participating in Regularly Scheduled Telework must be scheduled to work at the ODS no less than three (3) calendar days per pay period. Image: SevenMaps/Shutterstock.com
By: FEDweek StaffFollowing is a ruling by the Federal Service Impasses Panel in a dispute between the NTEU union and the FEC over the agency’s proposal to cut back allowed teleworking days, the first of what could be many such cases.
Since February 2022 the parties have operated under a pilot program that granted employees the option to report to the office no more than 3 days per period. The Union seeks to alter this by decreasing the number to 2 days and the Agency wishes to increase the number to 4 days. After a review of the record and the parties’ arguments, the Panel concludes that neither position is sufficiently supported.
As described above, the Agency proffered an exhaustive and meticulous assessment of the pilot program that reviewed mountains of evidence, data, and information in order to reach one primary conclusion: increased telework benefitted the work force and the Agency. The assessment reached this conclusion by “combin[ing] program data from across FEC offices, workforce statistics, three workforce surveys, and interviews to paint a broad picture of how the Pilot Program’s flexibilities [were] working and how they affect[ed] Agency operations as well as the FEC workforce.” And, as discussed in the summaries of the parties’ arguments, the assessment produced a number of positive conclusions that telework not did not inhibit the Agency’s operations, it actually enhanced them. And, both employees and supervisors found the experience to be an overall positive one.
The Agency nevertheless attempts to circumvent this conclusion by offering a host of unpersuasive academic studies that fail to account for the specific environment studied during the assessment period. It is hard to take seriously a study that did not actually study the parties’ conditions. Further, it is of no consequence that the pilot period lasted “only” 6 months. As the Union correctly points out, this was the timeframe mutually agreed upon by the parties. If the Agency had concerns about the length, the appropriate time for addressing those concerns would have been when the parties established the program. And, in any event, the parties have been operating under the terms of the pilot since February 2022: nearly 1.5 years have elapsed since the enactment of the pilot, a time period which should have provided sufficient data to the Agency.
At the hearing the Agency also relied upon OMB guidance that addresses the health of work environments in the face of evolving workplace realties. The guidance does call upon Federal agencies to establish work plans and provides that agencies are expected to “increase meaningful in-person work at Federal offices.” The OMB guidance put agencies on notice about a potential need to increase in person attendance, OMB also placed them on notice that such attendance should be “meaningful.”
The Agency’s efforts to meet the qualifying language in the OMB guidance were lacking. The FSIP Members placed the parties on notice, prior to the Informal Conference, that they should be prepared to present evidence concerning the impact of telework and remote work upon the workplace. Despite this, the Agency provided little in the way of information to demonstrate that telework under the pilot program was disruptive. None of the Agency’s exhibits or documents presented such claims. Instead, the sole evidence offered came in the form of non-specific testimony from the FEC Chair in which she raised concerns that certain meetings were allegedly more confrontational because they occurred virtually rather than in person. But, she failed to offer specific examples or incidents. Instead, much of the Chair’s testimony focused on the Agency’s belief that telework should be reduced in order to support collaboration and communication. Again, however, specifics were few and far between. Indeed, the Agency’s own assessment undercut the Agency’s argument by noting that supervisors reported they were able to successfully foster these two items during the pilot program. The Agency attempted to discredit this point at the hearing by claiming that these reporting supervisors were biased in favor of expanding telework. But, if the Agency intended to consider supervisory assessment responses valid only if they aligned with the Agency’s preferred policy conclusion it is difficult to find credible the Agency’s chosen methods of evaluation.
Bereft of specific examples of telework diminishing the workplace, the Agency Chair testified to a fervent desire to establish what could only be viewed as team building in the form of “water cooler talk.” In such situations, she contended, employees could build esprit de corps by sharing information on topics like entertainment and dining. To ask whether hypothetical in person conversations about pizza and “Desperate Housewives” support undercutting the results of the parties’ expansive and meticulously crafted pilot program is to answer the question. Accordingly, the Agency’s proposal is rejected.
Although the Agency’s proposal is unsupported, it does not follow that the Union’s proposal should be imposed. The pilot program did state that its parameters, after study, could be maintained or expanded. But, the latter was not any sort of mandate. As the Union is seeking to alter the terms of the pilot program, it too bears a burden to demonstrate that a change is necessary. The Union did not meet this burden.
Much of the Union’s argument for expansion essentially focused on its contention that, because the assessment data was overwhelmingly positive for telework under the program, it logically follows that expansion is warranted. Yet, this data establishes only that the 3 day per pay period reporting requirement created a successful environment that did not impede Agency operations. The Union has not offered any concrete data establishing what, if any, impact a 2 day reporting requirement could have upon the workplace. It may be that the Union’s proposal could actually bolster the Agency’s fortunes, but in the absence of empirical data it is difficult to conclusively reach this determination.
The witness testimony provided by the Union does not alter any of the foregoing. To wit, the Union President testified that executive session meetings were successfully accomplished via telework under the pilot program. While this may demonstrate that telework established in accordance with the pilot is sustainable, there was no direct evidence presented demonstrating what impact telework could have on these meetings were it expanded. Additionally, although employees she surveyed expressed their opinion that expanded telework would still permit accomplishment of the mission, in the absence of empirical data these opinions cannot be considered conclusive.
In summary, neither party’s presentations support adoption of their respective position. However, the information in the record establishes that expanded telework under the pilot program was successful and did not result in any serious detriment to the Agency’s operations. Accordingly, the following language will be imposed to resolve this dispute rather than the language offered by the parties:
Employees participating in Regularly Scheduled Telework must be scheduled to work at the ODS no less than three (3) calendar days per pay period.
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