USDA may have to bargain over telework arrangements

(Reuters) – A U.S. appeals court on Tuesday said the Federal Labor Relations Authority must reconsider its ruling that the U.S. Department of Agriculture was not required to bargain with a union over the circumstances in which some of the agency’s employees could work remotely.

A unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said the FLRA in its decision mischaracterized the National Treasury Employees Union (NTEU)’s proposal as binding on the USDA, when it actually granted agency supervisors considerable discretion to decide who could telework.

The FLRA had agreed with the USDA’s Food and Nutrition Service that the union’s proposal to allow certain employees to work remotely up to eight days every two weeks would have deprived the agency of its statutory authority to assign work and determine the methods by which it supervised workers.

The NTEU, which is represented by in-house counsel, did not immediately respond to a request for comment. Nor did the FLRA.

The NTEU represents 150,000 federal workers, including employees of the Food and Nutrition Service. A previous collective bargaining agreement between the union and the FNS, which expired in 2018, allowed eligible employees to telework up to six days out of every 10.

Eligibility was based on an employee’s experience, performance, and job duties, and under the collective bargaining agreement was ultimately determined by supervisors.

When negotiations began on a new contract in 2017, the NTEU initially proposed allowing eligible employees to telework on a full-time basis. The FNS countered with a proposal allowing only two days of remote work every two weeks, and asserted that the frequency of telework was not negotiable.

The union, which disagreed with the agency’s position, made a counterproposal of eight days out of 10.

When the agency did not respond, the NTEU in 2018 asked the FLRA to determine whether telework was a mandatory subject of bargaining.

The FLRA last year sided with the agency in 2-1 decision, saying the union’s proposal would affect management’s right to assign work and direct employees. The proposal creates a “presumptive entitlement” to telework, and “dictates to management” how frequently employees may work remotely, the FLRA said.

The NTEU appealed, and the D.C. Circuit on Tuesday agreed with the union that the FLRA’s decision was unreasonable because it ignored the provisions of the proposal that gave USDA supervisors wide latitude to determine who could work remotely, and how often.

The proposal also allowed FNS to revoke or alter employees’ telework schedules if it interfered with their ability to accomplish their work, the court said.

“Reasoned decisionmaking requires the FLRA to consider the proposal’s specifications, together with the proposed CBA’s relevant telework-eligibility and management-discretion provisions, in order to determine whether the proposal affects management’s rights,” Circuit Judge Karen Henderson wrote.

The court sent the case back to the FLRA to reconsider the union’s claim that the FNS was required to bargain over its proposal.

The panel included Circuit Judges Cornelia Pillard and Neomi Rao.

The case is NTEU v. FLRA, U.S. Court of Appeals for the D.C. Circuit, No. 20-1148.

For the NTEU: Paras Shah

For the FLRA: Noah Peters