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OPM Directs Agencies to Reject Telework Provisions in Labor Agreements
On Monday, the Office of Personnel Management (OPM) issued guidance directing federal agencies to disregard certain telework provisions outlined in collective bargaining agreements. The directive is based on the assertion that these provisions infringe upon “management rights” as defined by the agency.
In a memo to heads of agencies, Acting OPM Director Charles Ezell emphasized that the determination of telework eligibility and its extent falls strictly within management’s purview and is thus outside the realm of negotiation during union bargaining sessions. Ezell stated, “Provisions of collective bargaining agreements that conflict with management rights are unlawful and cannot be enforced.” He urged agencies to investigate their current collective bargaining agreement (CBA) language regarding telework to identify provisions that may be unenforceable due to this new interpretation. Specifically, he pointed out that any requirement for minimum telework levels or restrictions on setting maximum levels could potentially be unlawful.
Critics of the memo, such as Suzanne Summerlin, an independent labor attorney and former nominee for general counsel at the Federal Labor Relations Authority, argue that the directive misinterprets fundamental aspects of federal labor law. Summerlin highlighted that the term “management rights” is typically responded to in the context of specific proposals during negotiations and emphasized that only the Federal Labor Relations Authority (FLRA) has the authority to judge whether a union proposal excessively infringes upon these rights.
“While proposals that excessively interfere with management rights cannot be negotiated, it does not imply that issues concerning management rights cannot be part of negotiations,” Summerlin explained. “The current memo appears to overreach, aiming to eliminate anything perceived as an impediment to management’s rights, which does not align with established legal standards.”
In response to the situation, Matt Biggs, president of the International Federation of Professional and Technical Engineers, referred to Title 5 of the U.S. Code, which indicates that enforcing a presidential policy that conflicts with a union contract constitutes an unfair labor practice. Biggs asserted that federal law requires agencies to negotiate any changes prompted by new legislation rather than making unilateral decisions based on executive directives.
Biggs remarked, “They claim telework agreements are unlawful—not true—and the astonishing part is that they make this claim in a memo that lacks the force of law. They aim to rewrite the legal framework unilaterally.”
American Federation of Government Employees National President Everett Kelley expressed strong opposition to this tactic, reaffirming that union contracts are legally binding and cannot be altered without negotiation. “The president does not have the authority to make unilateral changes to those agreements,” Kelley asserted. “AFGE members will not be intimidated, and if our contracts are violated, we will defend them vigorously.”
However, experts like Summerlin caution that immediate recourse for unions and represented employees may be limited. Unions previously sought prompt legal remedies against anti-union executive orders during the Trump administration but faced obstacles, with appellate courts requiring unions to first exhaust administrative options before seeking judicial review.
The traditional pathway for unions to seek relief through the FLRA has been complicated due to the absence of a Senate-confirmed general counsel responsible for prosecuting unfair labor practice cases for eight years. During previous administrations, unions found that asserting unfair labor practices in the context of grievance arbitration provided a workaround, albeit with significantly longer timelines for resolution compared to a fully operational FLRA process.
“This situation reflects severe breakdowns within the system of checks and balances in the federal sector,” Summerlin noted. “The executive branch appears to have curtailed federal employees’ and their unions’ access to judicial intervention on crucial issues.”
Don Kettl, a former dean at the University of Maryland School of Public Policy, cautioned that the current administration’s actions might set a troubling precedent, potentially enabling further unilateral changes to other contentious provisions within union contracts, such as official time and automatic dues collection. He posited that officials seem to be deliberately provoking legal disputes by challenging the very processes and practices they oppose.
“They have long fixated on the internal operations of government that they find objectionable,” Kettl remarked. “Now, they are moving swiftly to dismantle these practices, fully aware that these actions will likely lead to legal challenges.”
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