The Federal Labor Authority Has Substantiated Union Accusations against EEOC Over Reentry

A regional director at the Federal Labor Relations Authority last week issued a formal complaint against the Equal Employment Opportunity Commission following allegations from its labor union that the agency unilaterally implemented its return-to-office plan without completing mandatory collective bargaining negotiations.

Between March and May, EEOC and the American Federation of Government Employees Council 216, which represents agency employees, tried unsuccessfully to iron out a memorandum of understanding governing the agency’s reentry plan.

Despite the Biden administration’s guidance stating that agencies should complete bargaining obligations prior to requiring employees who had been on full-time telework due to the pandemic to return to the office, EEOC required employees to begin coming to the office at least once per week on May 16, without reaching an agreement.

As a result, the union filed an unfair labor practice complaint with the FLRA. Last week’s decision by acting Atlanta regional director Brent Hudspeth determined that there was enough evidence that EEOC violated federal labor law to bring a formal complaint and scheduled a hearing before an administrative law judge for February 2023.

“[EEOC] implemented the change in [bargaining] unit employees’ conditions of employment . . . without providing the union with an opportunity to negotiate over the procedures and appropriate arrangements of the change,” the complaint states. “By [this conduct, EEOC] has been refusing to negotiate in good faith with the union and violating the statute.”

Rachel Shonfield, president of AFGE Council 216, said she was “very excited” that the FLRA validated her union’s allegations.

“It really was shocking and concerning when the EEOC unilaterally imposed reentry without finishing bargaining under the statute,” she said. “That’s not the way it’s supposed to happen. Even beyond that, the Biden administration had put out guidance regarding reentry and negotiating an MOU with the unions before reentry was supposed to occur, so we were surprised that at EEOC they would just go forward without first doing an MOU with the union.”

Since the May complaint, the union has filed a second unfair labor practice claim over EEOC’s implementation of phase 2 of its reentry plan, increasing the amount of time employees are expected to be in the office to two days per week. That has come amid a stark uptick in COVID-19 transmission in much of the country, and it has been no exception for EEOC.

At the start of reentry, three agency offices were in regions with high COVID-19 transmission, per the Centers for Disease Control and Prevention. As of last week, that number has ballooned to 39 of EEOC’s 53 offices. Shonfield said she has heard reports where the disease likely spread within agency offices, making her worried about the prospect of EEOC implementing phase 3 of reentry, which currently does not have a scheduled date but would involve reopening offices to the public.

“During phase 2, there’s been a period where there was an exponential rise in our offices being located in areas that have been moved to high transmission,” she said. “We’ve heard many reports of COVID positive staff, and there are some instances where it seems pretty clear that other employees ended up becoming COVID positive when they were in the office on the same day as the folks who were initially reported as positive. It’s creating just a great deal of anxiety.”

According to EEOC’s workplace safety plan, when an office is in a region with high COVID-19 transmission, the only policy changes are those requiring all employees and visitors to wear masks and for non-vaccinated people to comply with the agency’s COVID-19 testing regimen.

EEOC spokesman Victor Chen said that EEOC is reviewing the FLRA’s complaint. He said that the agency is “strongly committed” to bargaining in good faith with AFGE, although he declined to say if management would seek a settlement with FLRA and roll back reentry in order to complete its collective bargaining obligations.

“We view the union as a valuable partner in ensuring a safe and productive return to the agency’s physical workplaces so that we can serve the American people, including the most vulnerable workers, many of whom may have difficulty reaching us virtually,” Chen said.

Chen declined to answer questions regarding how current trends of COVID-19 transmission might affect the agency’s implementation of the third phase of reentry, or whether the agency has set a date for that change.

“The reentry plan expires at the end of 2022,” he said. “While EEOC employees have continued to work diligently through the pandemic, it is important that the EEOC reopen our doors, reestablish our physical presence in the communities we serve, and provide critical services to vulnerable employees and applicants who most need our help. Throughout the reentry process, we will continue to work to protect the health and safety of the EEOC’s dedicated employees and the American public.”