The Social Security Administration’s unilateral push to gain sole discretion of employees’ ability to telework hit a roadblock Nov. 14, as the chairman of the Federal Service Impasse Panel determined that the agency had not demonstrated sufficient need to change employee work and therefore roll back telework provisions at the Office of Hearings Operation in collective bargaining agreements.
Bargaining on a new contract between the National Treasury Employees Union and SSA began in February 2018, and while the agency and union were able to come to an agreement on most contract articles, they disagreed on the administration of telework at the agency.
The prior work arrangement for bargaining unit employees enabled them to work three to four days a week on telework, and NTEU pointed to Office of Inspector General findings that the agency achieved a reduction in its backlog during the telework pilot as evidence of the program’s efficacy.
The Social Security Administration will have to contend with allegations of intimidation brought by its administrative law judge union.
But the agency argued that the telework program had caused service disruptions and leadership would like the option to assign less portable work to such employees in the future.
“The Telework Enhancement Act and the Labor Statute intend for the telework program to be negotiated and any changes to the program to be negotiated with the union. The agency presented evidence to demonstrate that the workload for decision writers, due to the success of addressing the backlog, has begun to diminish,” FSIP Chairman Mark A. Carter wrote in the decision.
“However, although the parties have been bargaining for a year, the agency failed to present any specific program changes they are seeking to make in the bargaining unit workload that would impact eligibility under the telework program. While the agency asserted that they ‘may’ need flexibility to redirect other work, the agency offered no specific [need] to do so, or any demonstration that the other work cannot also be done while teleworking. Without any specifics, the union has not had the opportunity to bargain over any potential changes.
The case is a win for NTEU, which represents approximately 2,100 employees at SSA, and could potentially build precedent for other SSA unions — namely the Association of Administrative Law Judges — to pursue similar rulings.
The American Federation of Government Employees already received a nearly opposite ruling on their contract negotiations with SSA, as the union was locked into a seven-year contract that gave the agency full telework discretion.
Judge Melissa McIntosh, president of the AALJ, previously told Federal Times that the agency was likely looking to get the same ruling for each of its union contracts.
In AFGE’s case, the agency was able to present significant evidence that the current telework programs for those employees were having a negative impact on agency operations. These differences indicate that the turning point in an FSIP ruling may come down to whether the agency is able to sufficiently prove negative consequences of the program or the union is able to prove normal or improved operations.
“This FSIP decision adopts NTEU’s proposal in its entirety which largely maintains the telework article of the previous contract while also allowing the agency some temporary flexibility during emergencies,” NTEU National President Tony Reardon said in a statement.
“While the current FSIP has been especially hostile to unions these last two years, this decision upholds the basic standard that management cannot seek to change articles that are properly and legally negotiated in a collective bargaining agreement without specific evidence to support why it needs the changes.”