Impasses panel preserves telework levels for FEC bargaining unit workers

Bargaining unit workers at the Federal Election Commission will continue to be able to work from home up to seven days per biweekly pay period, thanks to a decision issued Wednesday by the Federal Service Impasses Panel.

Like many other federal agencies, the FEC adopted a maximum telework posture at the outset of the COVID-19 pandemic in 2020, having previously allowed employees with telework agreements to work from home twice per week. In 2022, the agency and the National Treasury Employees Union negotiated a six-month pilot program for expanded telework as part of the Biden administration’s return to office efforts, which required teleworking bargaining unit employees to report to their traditional work sites three days per biweekly pay period.

Earlier this year, the parties reached an impasse during negotiations over whether to adopt the provisions of the pilot program on a permanent basis, jointly seeking assistance from the impasses panel. The union sought to expand telework further, reducing the number of days that employees are required to report to agency offices to two days per pay period, while management argued the opposite, seeking to increase in-person days to four per pay period. The union also sought to establish remote work as a flexibility available to employees.

In arguments before the panel, NTEU cited the agency’s own assessment of the telework pilot program, which found that telework had “positive impacts” on both the workforce and agency productivity.

“The union notes that the assessment concluded that the agency accomplished its mission with no adverse impact, increased productivity due to diminished workplace distractions, and that there was a desire from supervisors to permanently codify or expand the flexibilities under the pilot program,” the decision states. “Surveys of supervisors backed up much of the forgoing conclusions.”

But management sought to minimize the importance of the agency’s own assessment, noting that the pilot program was slated only for six months—although it has now been in place for 20 months—and citing academic studies that telework and remote work can hurt collaboration within an organization.

“Notably, the agency claims the assessment was limited to a relatively brief period of six months, relied on self-reporting and did not account for all performance period cycles,” the panel wrote. “Because of these limitations, the agency supplemented its findings with scholarly and academic studies concerning in-person workplace attendance. These studies demonstrate, among other things, that a lack of in-person connection inhibits collaboration and communication and encourages employees to ‘silo’ amongst themselves.”

NTEU particularly disputed that last point, noting that the union’s analysis of employee performance data found that employees actually improved on their performance scores over the course of the pilot program.

FEC Chairwoman Dara Lindenbaum testified before the panel that collaboration within the workplace “suffered” during the pandemic and the subsequent expanded telework pilot program, attesting that virtual meetings between employees had become “more confrontational,” albeit without providing examples or additional details regarding those meetings.

“Chair Lindenbaum testified that in-person attendance would also foster collaboration by promoting ‘water cooler’ discussion amongst the workforce,” the panel wrote. “In such discussions, the chair testified, employees could foster a connection by discussing items such as reality television and local dining establishments. These discussions would create and enhance workplace connections and could not be accomplished virtually.”

Ultimately, the impasses panel instructed the parties to maintain the current level of telework—requiring employees to report to agency offices three days per pay period, and said proposals to establish remote work at the agency were outside the scope of negotiations over whether to make the pilot program’s provisions permanent. The panel found evidence on the telework pilot program’s efficacy did not support the union’s argument to further expand the practice, its harshest criticisms were directed at agency management.

“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 workforce and the agency,” the decision states. “[And] the assessment produced a number of positive conclusions that telework did not inhibit the agency’s operations, it actually enhanced them . . . 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.”

The impasses panel also found that April 2023 guidance from the Office of Management and Budget encouraging agencies to scale back telework would not tip the scales in management’s favor in this case.

“The guidance does call on federal agencies to establish work plans and provides that agencies are expected to ‘increase meaningful in-person work at federal offices,’” the panel wrote. “The OMB guidance put agencies on notice about a potential need to increase in-person attendance, but 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 FEC did not respond to a request for comment Thursday. In a statement, NTEU National President Doreen Greenwald applauded the impasses panel’s decision.

“Frontline employees at the Federal Election Commission have proven that the current telework program allowing up to seven days of telework per pay period has been successful, which is why the FSIP rejected the agency’s proposal to reduce telework opportunities,” she said. “[While] NTEU would like to see expansion of the telework program, we are gratified that the agency’s more restrictive proposal was rejected. Before, during and after the pandemic, FEC employees have maintained productivity regardless of their chosen work site, and NTEU looks forward to implementing a new collective bargaining agreement that fully recognizes that success.”