Appeals Court Overrules FLRA on Telework Negotiability

A three-judge panel unanimously overruled a 2020 decision by the Federal Labor Relations Authority that found a union couldn’t negotiate over telework provisions in its labor contract because that would infringe on management’s rights. The judges disagreed, and said FLRA had improperly ignored provisions that protected management’s prerogative.   

The dispute stemmed from a 2-1 ruling by FLRA in April 2020 that a proposal from the National Treasury Employees Union regarding how employees of the Agriculture Department’s Food and Nutrition Service may become eligible for four days per week of telework was non-negotiable because it infringed on management rights to assign work and direct employees.

“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,” the FLRA’s Republican majority wrote. “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.”

But then-FLRA Member Ernest DuBester, the lone Democrat on the panel, dissented, arguing that his colleagues ignored other provisions of the proposed contract, which established eligibility standards for telework, as well as stipulated that management can deny requests for otherwise-eligible employees to work remotely if officials deemed it “necessary for the [Federal Nutrition Service] to accomplish its work.”

That dissent formed the basis of an appeal filed by NTEU with the D.C. Circuit Court. Led by Circuit Court Judge Karen LeCraft Henderson, a three-judge panel unanimously agreed with the union and DuBester’s analysis.

“A careful review of the proposal and related [collective bargaining agreement] provisions makes plain that the FLRA did not reasonably explain how its interpretation of the proposal—that it ‘dictates to management how often the agency can require an employee to perform work at the duty station’—follows from the proposed CBA’s text and structure,” Henderson wrote. “Specifically, the FLRA failed to address the proposed CBA provisions limiting telework eligibility and maintaining management discretion to deny a telework request.”

In arguments before the court, the FLRA argued that regardless of those eligibility requirements, the union’s proposal created a “presumptive entitlement” to full time telework, because protections against “unreasonable denials” of telework requests could lead to a flood of grievance complaints from employees.

But the court said it could not accept that argument, since it was not established in the FLRA’s original decision, save for a brief footnote. In a footnote of her own, Henderson indicated that although she could not rule on the merits of the FLRA’s defense, she would not look kindly upon it.

“Because the FLRA did not clearly limit its decision to expanded telework, we do not resolve whether the FLRA could have reasonably found that the proposal created a regular teleworker’s ‘presumptive entitlement’ to expanded telework,” she wrote. “The prospect of baseless grievances, however, would not amount to a ‘presumptive entitlement’ to telework that could justify the FLRA’s interpretation of the proposal.”

The court remanded the case back to the FLRA for “further proceedings consistent” with its decision.