A unfair labor practice charge by union representatives against the Equal Employment Opportunity Commission will go before a judge to determine whether the agency must bargain over hybrid work for its employees.

Council 216 of the American Federation of Government Employees, the largest federal employee union, initially filed a charge in May against the commission, alleging that EEOC imposed return-to-work in the middle of negotiations. The Federal Labor Relations Authority took up the claim and deemed it a violation of the Federal Service Labor-Relations Management Statute. Now, a hearing for the complaint is scheduled for February unless the parties reach settlement.

“We were surprised because we thought it could’ve been accomplished,” said AFGE Council 216 President Rachel Shonfield in an interview. “It definitely launched chaos.”

It’s another example of federal employees and labor unions calling out agencies for reversing remote work flexibilities. In response to the COVID-19 pandemic, all 24 federal agencies reported at least a quarter of employees teleworking by April 2020. Now some departments are reverting to in-person work, though the Office of Personnel Management within the White House has called for maximizing telework. Agencies’ responses to that guidance have been mixed, resulting in a patchwork application of flexibility, and workers and unions firing back through legal action.

The union’s council is calling for EEOC to complete negotiations on a safe reentry agreement. Officials at EEOC did not respond to requests for comment by the time of publication.

After sharing its reentry plan with the union in March and while bargaining was “seemingly” ongoing, on May 5, the agency sent the union notice of its intent to move forward with implementation of the re-entry plan, according to a unfair labor practice charge submitted on May 6.

“On May 16, 2022, the Agency unilaterally implemented their re-entry plan, requiring an immediate return of bargaining unit staff to offices despite the ongoing uncertainty of the pandemic, and terminating the 100% telework arrangements for the bargaining unit staff before negotiations on the re-entry plan were completed,” according to an another charge filed against the agency that same day.

To date, the council has filed four ULPs on reentry and one on the issue of safety regarding occupancy ceilings for offices in high-transmission areas.

Are employees willing to come into the office?

“Employees are justifiably upset that EEOC did not work with their union to ensure a safe reentry into a hybrid workplace,” Shonfield said in a statement. “While other agencies are increasing pre-pandemic telework and remote options, EEOC’s plan contains only a short-term telework increase.”

The FLRA complaint from July 28 confirms the commission had not completed negotiations by the time of the reentry, thereby failing to negotiate in good faith.

Prior to the pandemic, certain work at EEOC was already done virtually or by phone. The agency’s website published a report that said its own pivot to virtual mediations was “highly successful.”

“While our pivot to online mediation was necessitated by the pandemic, online mediation, like our in-person mediation program, has proven to be very popular and effective,” EEOC Chair Charlotte Burrows said in the report.

Virtual work, while initially an emergency provision to keep the government running during the pandemic, has taken on new power as a bargaining chip for both agencies and employees. Employees are willing to walk if they can’t work remotely, and agencies that allow it have a recruiting leg-up on those that don’t.

“I do think there is some kind of resistance to modernizing workforce flexibility at EEOC,” said Shonfield, adding that she and other union officials have already heard about employees who are leaving for other agencies or retiring. That, in turn, exacerbates staffing issues within the agency that also contribute to longer wait times for the public to be served, she said.

“If EEOC is not competitive with other agencies on work-life balance and labor management relations, then this will just be the start of an exodus,” Shonfield said in a statement in May.

The EEOC administers and enforces civil rights laws against workplace discrimination. AFGE represents 700,000 workers nationwide and overseas.

Molly Weisner is a reporter for Federal Times where she covers industry issues pertaining to the government workforce. She's made previous stops at USA Today and McClatchy as a producer and worked on The New York Times's print desk as a copy editor. Molly majored in journalism and French at the University of North Carolina at Chapel Hill.

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