Erich Wagner
October 16, 2024 - Government Executive
This story has been updated at 6:27 p.m. EDT.
The Labor Department’s largest employee union is accusing Acting Secretary Julie Su of shirking her duty to negotiate with the department’s workforce after Su announced that she will implement new telework restrictions later this year.
Last November, the Labor Department announced new restrictions on employees’ use of telework, requiring employees to spend at least five days per biweekly pay period at traditional work sites. Though initially slated for implementation in January 2024, the department postponed those plans in order to negotiate the policy change’s implementation with the National Council of Field Labor Locals, which represents roughly two-thirds of the department’s nearly 15,000 employees and is part of the American Federation of Government Employees.
In an email to staff last week, Su announced that new in-person work requirements will take effect Dec. 1. Beginning on that date, all non-bargaining unit employees outside of the Washington, D.C., region and all members of the NCFLL bargaining unit will be required to spend five days per pay period in traditional offices or on field work. The new policy does not apply to the more than 100 employees who are part of the National Union of Labor Investigators, with whom the department continues to negotiate,｛r Office of Inspector General employees, while non-bargaining unit D.C.-area workers already have been commuting for half of their work hours.
"The department has engaged with NCFLL over the course of several months to obtain the union's input into matters affecting employees in their bargaining unit; to meet any labor-management obligations it may have had in advance of implementation," Su wrote. "The department remains engaged with NULI to obtain their input into matters affecting employees in their bargaining unit and remain in the collective bargaining process . . . I know the implementation of the five-day requirement may impact the work-life balance of those of you to whom it applies and do not take this decision lightly."・/p>
Management and the NCFLL had been negotiating off and on since the policy was first announced last year. Over the summer, the issue reached the Federal Service Impasses Panel, but following a fruitless 11-hour mediation session, the department argued that the union’s proposals improperly interfered with management’s rights to assign work and direct employees and are therefore nonnegotiable. The panel last month dismissed the union’s case for lack of jurisdiction, since negotiability disputes must go before the Federal Labor Relations Authority.
In a letter announcing the decision, FSIP Chairman Martin Malin criticized the department in a footnote, implying that management engaged in underhanded tactics when it asserted that the issue was non-negotiable.
“Despite dismissing the case, the panel 》akes a moment to address concerns regarding the agency’s actions in this dispute,” Malin wrote. “The agency’s negotiability argument was formally raised in its post hearing brief on August 26, 2024｛ver 80 days after the union first sought the assistance of the panel. In those 80 days, the panel and its representatives devoted significant resources to seeking resolution via investigation, caucuses and mediation. The agency never indicated an intent to raise a negotiability argument other than in its August 8 statement mentioned above that it walked back the next day. The agency’s post-hoc decision to raise this argument has resulted in an ineffective and inefficient expenditure of taxpayer funded resources that cannot be justified in light of the results, i.e., a straightforward dismissal.”
In a message to union members Tuesday, NCFLL President Daryl Laurie accused Su of abdicating her responsibility to bargain over the implementation of workplace policy changes with the union prior to implementation, given that the FLRA has yet to weigh in on whether the telework policy is negotiable. Laurie was not immediately available for comment Wednesday.
“In her email of Oct. 11, 2024, Acting Secretary Su believes that the department’s labor management obligations have been met; however, the NCFLL takes exception,” Laurie wrote. “[The] NCFLL has a pending negotiability appeal before the FLRA. This appeal had to be filed because the department claimed that the NCFLL bargaining proposals were non-negotiable. It is the FLRA, not the department, who decides whether a bargaining proposal is negotiable.”
Laurie wrote that he has reached out both to the union’s attorney and AFGE’s national office to discuss next steps. Unions typically have two avenues for challenging the unilateral implementation of a workplace policy change: the arbitrated grievance process or an unfair labor practice complaint.
The Labor Department declined to…omment beyond Su's email to the workforce Wednesday.
This story has been updated