71 FLRA No. 133                                                                              

NATIONAL TREASURY

EMPLOYEES UNION

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF AGRICULTURE

FOOD AND NUTRITION SERVICE

(Agency)

 

0‑NG‑3411

 

_____

 

DECISION AND ORDER

ON NEGOTIABILITY ISSUE

 

April 21, 2020

 

_____

 

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member DuBester dissenting in part)

 

1. Statement of the Case

    

   In this case, we consider the negotiability of a proposal that would allow eligible bargaining‑unit employees to report to the office as little as once            per week and telework up to eight days per pay period.  The issues before us are whether the                    Telework Enhancement Act of 2010 (Act)^[1] vests the Agency with sole and exclusive discretion to establish telework frequency and whether the proposal is contrary to management’s rights to assign work and direct employees.^[2]  The Agency argues that the right to establish the frequency of telework—or in other words, the right to establish the “when” work will be performed at the duty station—is an inherent management right.^[3] 

    

   We find that the proposal affects management’s rights to assign work and direct employees.  Because the Union has not established that the proposal falls within an exception under § 7106(b) of the Federal Service Labor-Management Relations Statute (the Statute),^[4] we find that the proposal is outside the duty to bargain.

    

2. Background

    

   During term bargaining, the parties exchanged several proposals regarding Article 20 of the parties’ current collective‑bargaining agreement.  That article, as relevant here, allowed certain employees to telework up to six days per pay period.  The Agency proposed to retain a section of Article 20 that requires employees who telework to report to the office a minimum of               two workdays per week.  The Union proposed to “expand” Article 20 to allow employees to report to the office as little as once per week, and under specified circumstances, to telework up to eight days                   per pay period.^[5]

    

   The Union requested a written declaration of nonnegotiability from the Agency over that proposal, and, when the Agency did not respond, the Union filed a negotiability appeal (petition) with the Authority under § 7105(a)(2)(E) of the Statute.^[6] 

    

   The Agency subsequently filed a statement of position (statement), and the Union filed a response to the statement (response).  Thereafter, an Authority representative conducted a post‑petition conference with the parties pursuant to § 2424.23 of the Authority’s Regulations,^[7] and the Agency filed a reply to the response (reply).

    

3. The Proposal

    

1. Wording^[8]

    

   (2) Employees must be in the office a minimum of one (1) workday each week and a minimum of eight (8) hours each work day, taking into consideration telework and alternative schedule arrangements.  In order to telework more than six (6) days             per pay period (i.e., expanded), an employee must proceed as follows:

    

1. Regular Telework: Employees who telework six (6) days or fewer                    per pay period must be in the office a minimum of two (2) workdays each week and a minimum of eight (8) hours each work day, taking into consideration telework and alternative schedule arrangements.  The eligibility requirements for regular telework are contained in Sections 20.02 and 20.03 above.

    

2. Expanded Telework: Eligibility for expanded telework (i.e., seven (7) to      eight (8) days per pay period or the equivalent for an alternate work schedule) will be based on the employee meeting the following criteria: (i) The employee has teleworked at least six (6) days                  per pay period (or the equivalent for an alternate work schedule) for a year; and     (ii) The employee has not had any performance (i.e., a performance improvement plan) or disciplinary issues over the same period;^[9]

 

1. Employee requests for expanded telework will not be unreasonably denied.

    

1. Meaning

    

   At the post‑petition conference, the Union explained that the proposal would allow eligible employees to telework seven or eight days                    per pay period.^[10]  The Union further explained that the proposal affords the Agency the discretion to deny an employee’s telework request consistent with the parties’ agreement.^[11]  The Agency agreed with the Union’s explanation of the meaning and operation of the proposal.^[12]

    

    

2. Analysis and Conclusion

    

   1. The Act does not give the Agency sole and exclusive discretion.

       

      The Agency argues that the proposal is nonnegotiable because the Act gives the head of the Agency, the Secretary of Agriculture, sole and exclusive discretion to determine the telework policy of the Agency.^[13]  Specifically, the Agency argues that the plain language of § 6502(a)(1)(A)^[14] and the legislative history of the Act demonstrate that Congress intended to give the Secretary of Agriculture unfettered discretion to set the Agency’s telework policy.^[15]

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      In analyzing claims of sole and exclusive discretion, the Authority looks at the plain wording and the legislative history of the statute in question.^[16]  While unfettered discretion is typically indicated by such phrases as “notwithstanding any law” or                “without regard to the provisions of other laws,” such a signal is not required and the entire wording of the legislation must be considered.^[17]  In the absence of any indication that Congress intended the agency’s discretion to be sole and exclusive, the exercise of discretion through collective bargaining is consistent with law.^[18]

       

      In a recent, instructive case, Luke Air Force Base, the U.S. Court of Appeals for the District of Columbia Circuit found the Secretary of Defense had sole and exclusive discretion over access to commissaries and exchanges because the language of the section governing commissaries and exchanges was almost identical to the language in the section that authorized Branch Secretaries to “‘prescribe regulations to carry out [their] functions, powers, and duties under this title,’ subject only to        ‘the authority, direction, and control of the Secretary of Defense.’”^[19]   

      Here, however, the plain wording of the Act does not support a conclusion that the Agency has sole and exclusive discretion.^[20]  Congress clearly delegated to each Agency head the role of determining telework policy; however, we could not find—nor did the Agency identify—a particular word or phrase that evoked unfettered discretion.  As an administrative agency, we must presume that when Congress legislates, it does so in full knowledge of the laws already enacted,^[21] which would include the Statute and the Civil Service Reform Act.^[22]  Congress had the opportunity to revisit the Authority’s history of finding various aspects of telework negotiable, but it does not appear that it did so.

       

       

       

       

       

       

       

       

       

       

       

      Furthermore, despite the Agency’s arguments and comparisons of legislative reports,^[23] we do not find the legislative history of the Act to indicate that Congress intended to provide the Agency with sole and exclusive discretion.^[24]  Unlike NTEU, where the Authority found the agency had sole and exclusive authority to set the pay of employees because the House Report emphasized that “all personnel‑related matters including determinations regarding pay are within the ‘exclusive authority of the [Agency] to determine,’”^[25] here, there is no such indication by Congress.^[26]  Therefore, we find that the Act does not provide sole and exclusive discretion.^[27]

       

   2. The proposal affects the management rights to assign work and direct employees under § 7106(a)(2)(B) and § 7106(a)(2)(A), respectively.

       

      The Agency argues that the proposal affects management’s right to assign work under § 7106(a)(2)(B) of the Statute because management’s right to assign work should include the right to tell employees the physical location at which they will perform work.^[28]  In other words, the Agency argues that this proposal affects an inherent management right to tell an employee when that employee must report to the duty station.^[29]  While the proposal at issue would establish an elaborate framework to allow for telework nearly eight days a pay period, the proposal begins by establishing that an employee is only obligated to be at the duty station one day per week; the Agency’s management rights arguments focus on this frequency.^[30]  

       

      The Authority has held previously that the right to assign work includes 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.^[31]  Upon review of our prior caselaw and the arguments presented here, we determine that the frequency of telework—the “when” an eligible employee may perform his or her duties away from the duty station and “when” that eligible employee must report to the duty station—is inherent to management’s right to assign work. 

       

 

 

In International Ass’n of Fire Fighters, the Authority held that a proposal dictating the work schedules of three employees was nonnegotiable because it affected management’s right to assign work, specifically, management’s right to determine when work would be performed.^[32]  The Authority also found nonnegotiable a proposal allowing employees to complete work at home because it affected management’s right to determine when work would be completed.^[33]  Therefore, the right to assign work must also include the right to determine “when” an employee is required to report to the duty station to fulfill his or her duties, here, the frequency of telework.^[34]  And, a proposal that dictates to management how often the Agency can require an employee to perform work at the duty station impermissibly affects management’s right to assign work.  Because this proposal establishes that a telework‑eligible employee could report to the duty station as little as      one day per week, the proposal affects management’s right to assign work. We will no longer follow cases holding otherwise.^[35]

 

As noted above, the Agency also argues that the proposal affects management’s right to direct employees under § 7106(a)(2)(A).^[36]  The Authority has not previously addressed whether a proposal concerning the frequency of telework affects the right to direct employees under § 7106(a)(2)(A).  But the Authority has long held that this right includes the right to       “supervise and guide [employees] in the performance” of their job duties,^[37] and proposals that preclude management from using a particular method of supervising employees’ work performance affect management’s right to direct employees.^[38]

 

Here, the proposal imposes substantive restraints on management’s “right to determine the methods used to evaluate and supervise its employees.”^[39]  By allowing eligible employees to spend up to 80% of each pay period outside of the office, the proposal effectively (1) requires management to employ computer‑ and telephone‑based supervision techniques and, correspondingly, (2) precludes management from regularly using in‑person methods of supervision, such as unannounced visits or spot checks.  As a result, the proposal interferes with the Agency’s right to choose the method that it deems     “most appropriate” for supervising employee performance.^[40]  Management has the right to provide its supervisors with in‑person access to employees for the purpose of directing, monitoring, and evaluating their work.  Accordingly, consistent with Authority precedent, we find that this proposal affects the right to direct employees under § 7106(a)(2)(A).^[41] 

 

Again, to demonstrate that a proposal is contrary to § 7106, the agency must establish that the proposal affects a management right.^[42]  When the agency does so, then the Authority will examine any union arguments that the proposal falls within an exception set forth in § 7106(b).^[43]  Therefore, we now consider whether the Union has argued that the proposal falls within an exception in § 7106(b).^[44]

 

Under § 2424.25(c)(1) of the Authority’s Regulations, a union “must” set forth its arguments and supporting authorities for any assertion that its proposal constitutes an exception to a management right, including “[w]hether and why the proposal” constitutes a negotiable procedure, under § 7106(b)(2), or an appropriate arrangement, under § 7106(b)(3).^[45]  Here, the Union states that “[w]here a case includes an issue concerning whether there is an impermissible effect on a management right under § 7106(a), the Authority may consider whether the contract provision or proposal         at issue falls within an exception to management’s rights negotiated under § 7106(b).”^[46]  While the Union asserts generally that the Authority may consider § 7106(b), it does not specifically argue, with supporting authorities, that its proposal constitutes a procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3).  Accordingly, we find that the Union fails to state whether and why the proposal constitutes an exception to management’s rights under § 7106(b), as required by § 2424.25.^[47] 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As the proposal affects management’s rights to assign work and direct employees, and the Union does not establish that the proposal is otherwise negotiable, we conclude that the proposal is outside the duty to bargain.^[48] 

 

Thus, we dismiss the Union’s petition.^[49]

 

1. Order

    

   We dismiss the Union’s petition.

 

 

Member DuBester, dissenting in part:

 

I agree that the Telework Enhancement Act of 2010 does not vest the Agency with sole and exclusive discretion to determine its telework policy.  But contrary to the majority, I would conclude that the proposal does not affect management’s right to assign work and direct employees under § 7016(a)(2) of the Federal Service Labor‑Management Relations Statute (the Statute).1         I would therefore find that the proposal is negotiable.

 

The majority’s conclusion on this point is flawed on several levels.  It fundamentally misinterprets the Union’s proposal.  It relies upon an argument that was never raised by the Agency.  And, in concluding that the Union’s proposal affects the Agency’s right to assign work and direct employees, it discards governing Authority precedent in favor of decisions that have little relevance to the proposal.  Accordingly, I dissent.

 

The majority concludes that the Union’s proposal affects the Agency’s right to assign work because it “establish[es] that an employee is only obligated to be at the duty station one day per week.”2  This is simply not true.

 

Instead, the proposal merely seeks to expand the number of days that otherwise eligible employees may be allowed to telework under Article 20 of the parties’ bargaining agreement.  Specifically, the proposal would allow employees who have teleworked for at least          six days per pay period for a year – and who have not had any performance or disciplinary issues over the same period – to apply for an additional one or two days of telework during the pay period.

 

During the parties’ post‑petition conference, the Union explained that the proposal would “operate in conjunction with the criteria set out in subsection 20.02 [of the parties’ agreement] – Eligibility for Telework, [subsection] 20.03 [of the parties’ agreement] –    Requests for Telework, and [subsection] 20.06(1)         [of the parties’ agreement] – Other Considerations for Approval of Telework Request.”3  These provisions set forth additional criteria by which the Agency may deny telework requests based upon its operational needs. 

 

For instance, subsection 20.02 establishes the standards by which the Agency can determine whether an employee’s position is eligible for telework, including whether the position’s duties “require the employee’s physical presence to perform particular tasks that can only be performed at the worksite on a daily basis.”4  This subsection also sets forth numerous eligibility requirements specific to the requesting employee’s performance and disciplinary record.5

 

Subsection 20.03(2), in turn, establishes criteria by which a supervisor “may approve an eligible employee’s request for telework,” including whether the employee possesses sufficient experience in his or her current job and the ability to perform successfully in a telework arrangement.6  The supervisor must also assess whether the employee has “defined work that can be measured or otherwise evaluated in terms of timeliness, quality and/or quantity.”7

 

More importantly, subsection 20.06(1) clarifies that the “approval or disapproval of an employee’s request for telework will be based upon whether the approval of the telework request will interfere with the [Agency’s] ability to accomplish its work.”8  And subsection 20.06(3) makes it clear that, “once a telework request is approved, the [Agency] reserves the right to make changes in an employee’s telework schedule, if it is determined that a change in an employee’s telework schedule is necessary for the [Agency] to accomplish its work.”9

 

The Union’s brief reiterates that its proposal is intended to create a “progression framework under which employees may become eligible to telework” additional days,10 and that it would preserve the Agency’s ability to determine that an employee is ineligible for telework based on the “litany of criteria” set forth in Article 20 of the parties’ agreement.11  And as the majority notes, the Agency agreed with the Union’s explanation that the proposal “affords the Agency the discretion to deny an employee’s telework request consistent with the parties’ agreement.”12

 

Indeed, the Agency could not have been clearer on this point in its SOP.  Citing Article 20, it specifically rebutted any notion that, under the parties’ existing bargaining agreement, bargaining unit employees         “are routinely and automatically permitted to telework   six out of ten days in each pay period,” and explained that employees are currently allowed to telework to this extent “only under ideal circumstances where the relevant supervisor determines that telework will not interfere with the accomplishment of work.”13 

 

This understanding of the Union’s proposal is important because the Authority has previously found that a proposal merely establishing eligibility requirements for telework does not affect management’s rights to “assign and direct employees.”14  The Authority has also consistently held that awards enforcing telework agreements, where an agency fails to show a relationship between the job location and the job duties, do not affect management’s right to assign work.15  Applying this precedent, I would find that the proposal has no effect on management’s right to assign work or direct employees, and that it is therefore unnecessary to determine whether the proposal falls within an exception to § 7106(b) of the Statute.16

 

The majority is undeterred by our long-standing precedent.17  Instead, it labors to devise two novel bases for dismissing the Union’s petition.  Neither withstands scrutiny.

 

First, the majority concludes that the proposal affects the Agency’s right to assign work because it affects “‘when’ an eligible employee may perform his or her duties away from the duty station and ‘when’ that eligible employee must report to the duty station.”18  But the cases cited by the majority19 to support this conclusion bear no relevance to the proposal before us.

 

Specifically, in NFFE, IAMAW,               Federal District 1, Federal Local 1998,18 the proposal     at issue was found to affect the Agency’s right to assign work because it “permits employees to unilaterally decide whether to delay the performance of their assignments.”19  Similarly, the proposal at issue in                    International Association of Fire Fighters20 was found to affect the right to assign work because it affected the agency’s “determination of . . . employees’ daily starting and quitting times” and “when during the day assigned work will be performed.”21  And in Professional Airways Systems Specialists,22 the proposal at issue would permit employees who failed to complete their assigned tasks during the workday to “take their work assignments home to complete them during evening hours or on weekends,” and thus would “determine when work assignments will occur, including when overtime will be performed.”23  Finally, in U.S. DOJ, Federal BOP, Federal Correctional Institution, Big Spring, Texas,24 the majority concluded that an award excessively interfered with the prison’s right to assign work and determine its internal security because it required the prison to “always staff the          third floors of [its] housing units.”25 

 

The majority fails to establish the relevance of these decisions to the Union’s proposal, which – unlike the proposals and provisions addressed in the cited cases – does not affect the Agency’s ability to require employees to perform their work during assigned hours, and certainly does not affect the Agency’s right to decide whether to fill a particular position.  Indeed, the Union’s proposal preserves the Agency’s ability under the parties’ agreement to deny an employee’s request for expanded telework – and to make changes to an employee’s existing telework schedule – if, among other reasons, the employee’s work cannot be performed at home or if denying the request is necessary for the Agency to accomplish its work.

 

The majority’s conclusion that the proposal affects the Agency’s right to direct employees under § 7106(a)(2)(A) is equally flawed.  In its statement of position, the Agency never raised the arguments upon which the majority relies to find that the Union’s proposal affects its right to direct employees.26  Under the Authority’s Regulations, an agency “has the burden of raising and supporting arguments that the proposal or provision is . . . contrary to law,” and its “[f]ailure to raise and support an argument will, where appropriate, be deemed a waiver of such argument.”27  Consistent with these provisions, I would find that the Agency has not demonstrated that the Union’s proposal affects management’s right to direct employees on this basis alone.28

Moreover, the proposals addressed by the decisions upon which the majority relies for its conclusion bear no resemblance to the Union’s proposal.  In AFGE, Local 1712,29 the proposal would have required the agency to allow certain employees to work in an office “behind a closed and locked door during business hours.”30  The Authority found that the proposal would affect management’s right to direct employees because it would, “prevent . . . for the most part, any supervisory oversight of the [employees] whatsoever.”31                  The proposal at issue in NAGE, Local R1‑20332 would have precluded the agency from “monitoring the amount of time that employees spend using their computers for the purpose of evaluating their productivity.”33  And in NFFE, Local 1263,34 the proposal at issue would have prohibited the agency from conducting unannounced audits to assess the performance of teachers in a classroom.35

 

The majority concludes that the Union’s proposal similarly infringes upon the Agency’s right to direct employees because it “effectively . . . requires” management to remotely supervise its teleworking employees, thereby precluding it from using in-person supervisory methods such as spot checks.36  But the Union’s proposal does nothing of the sort.

 

Rather, the proposal simply defines the conditions under which the Agency may decide whether to allow employees who have already been deemed eligible for telework to increase the number of days on which they can telework.  As noted, the proposal does not require the Agency to approve expanded telework for any employee who has had performance or disciplinary issues; who has not demonstrated “the ability to perform successfully in the telework arrangement;”37 or whose work is not amenable to a telework arrangement.  And more importantly, the proposal preserves the Agency’s discretion to deny a request for expanded telework if approval of the request would interfere with the Agency’s “ability to accomplish its work.”38  These same features dispel any suggestion by my colleague that the Union’s proposal is inconsistent with the requirement in 5 U.S.C. § 6502(b)(1) “that an agency’s telework policy          ‘shall ensure that telework does not diminish employee performance or agency operations.’”39 

 

In sum, the majority’s decision mischaracterizes the meaning and effect of the Union’s proposal.  Moreover, it overturns Authority precedent governing the negotiability of telework agreements based upon decisions bearing little relevance to the Union’s proposal, as well as argument that was never raised by the Agency.  I therefore strongly disagree with its decision to dismiss the Union’s petition.