Labor-Management Impasse Panel Guts Telework, Holiday Leave for Some Feds

A panel tasked with settling contract disputes between labor groups and agency management sided mostly with management officials at the Health and Human Services Department, although implementation of the new collective bargaining agreement between the department and the National Treasury Employees Union remains on hold while the two sides continue to negotiate additional matters.

The Federal Service Impasses Panel issued its decision on various provisions of a proposed union contract between the department and NTEU Monday. In many cases, the panel sided with management, most prominently on the issues of telework and the use of annual leave.

Last May, Health and Human Services opened negotiations with the union, despite the fact that there was ongoing litigation over an existing agreement on ground rules for negotiation. Parties exchanged proposals in June, and then negotiated for two days in July, after which department leaders asked for assistance from a federal mediator. Following two days of negotiations with a mediator, the agency declared an impasse and filed for intervention by the impasse panel.

NTEU officials have decried the process as a “sham,” and have filed two unfair labor practice complaints on the matter, accusing the agency of bad faith negotiations. Union members have described management’s approach to negotiations as “box checking,” fulfilling the requirements to reach the impasse panel without meaningfully engaging in negotiations.

Some of the biggest changes to the existing collective bargaining concern telework. Currently, most HHS employees with telework agreements work between three and five days per week remotely. Nonetheless, the panel largely endorsed management’s proposal to set an “expectation” that workers commute to physical offices four days per week. The panel claimed that the proposal was not a requirement, although it had to revise the provision to remove the word "requirement" and replace it with "language."

“In the panel’s view, an expectation is not tantamount to a requirement,” the panel wrote. “That is, while supervisors may fairly ‘expect’ employees to report to the agency’s facilities for a set number of days, the panel does not believe that the agency’s proposal establishes a requirement that they do so.”

Additionally, the contract as imposed by the panel would give HHS greater latitude in rejecting requests to use annual leave, and set a higher bar for employees to seek time off, particularly over the winter holidays. Once the contract is implemented, employees must make leave requests in excess of five days at least 60 days in advance, and in the case of any leave requested between November and January, those requests must be submitted by Sept. 15.

Any leave requests for the months of November through January cannot be more than five consecutive days. Time off near the end of the year is important because a portion of federal workers’ annual leave is deemed “use or lose” and cannot be rolled over.

Additionally, the impasse panel upheld a proposal to end free NTEU access to office space at HHS facilities. Going forward, HHS will offer “limited office space” to the union “for rental,” although the union must provide its own equipment, and it may request access to conference rooms, email lists and telephone lines.

One area where the panel sided strongly with the union was on the issue of official time. Although it endorsed a management proposal to set up a system where union members must request access to official time before they can use it, the panel members slammed as unlawful an effort to strip the union's use of official time for the vast majority of representational activities. Such a move was not supported by evidence, the panel found.

“[HHS] argues that granting the union any degree of official time pursuant to this section could run afoul of management rights,” the panel wrote. “Yet the [Federal Labor Relations Authority] has long held that official time is an exception to statutory management rights. The agency has not challenged the validity of this precedent.”

NTEU National President Tony Reardon said that the union continues to negotiate other provisions of the contract, thus delaying its implementation.

"HHS Secretary Alex Azar has been railroading his own employees by refusing to negotiate with them, as required by law, and now we see the results: an illegitimate contract that Azar wants to force upon employees," Reardon said. "HHS employees deserve better, which is why we will continue our fight to get the agency back to the bargaining table . . . Fortunately, management’s plan to nearly eliminate telework and strictly curtail leave around the December holidays, just to name two of the anti-employee provisions of the FSIP decision, are on hold.”