OPM claims agencies can ignore union telework contracts
In a memo to agency heads, Acting OPM Director Charles Ezell argued that the “substantive amount” of and eligibility for telework is a management right, and thus non-negotiable within the context of union bargaining.
“Provisions of collective bargaining agreements that conflict with management rights are unlawful and cannot be enforced,” Ezell wrote. “Agencies should review current CBA language on telework and remote work to determine if any provisions are unenforceable for conflicting with management’s statutory rights . . . Any provisions that require agencies to provide minimum telework levels, or prevents agencies from setting maximum telework levels, are likely unlawful.”
Suzanne Summerlin, an independent labor attorney and former Biden-era nominee to be general counsel at the Federal Labor Relations Authority, said that the memo disregards basic definitions of terms outlined in federal labor law. For instance, the concept of “management rights” is an assertion made in response to a specific proposal at the bargaining table. An agency then argues that the proposal is nonnegotiable, but only the FLRA can rule whether a proposal excessively infringes upon management rights.
“Proposals that ‘excessively interfere’ with management rights is not permitted to be bargained over, but that doesn’t mean management rights can’t be bargained at all,” Summerlin said. “[But] in this case, they appear to be going after anything that “impedes” management rights, but that isn’t the legal standard.”
Matt Biggs, president of the International Federation of Professional and Technical Engineers, responded to the news by citing an excerpt from Title 5 of the U.S. Code that states that the enforcement of a presidential policy or regulation that conflicts with a union contract constitutes an unfair labor practice. According to federal law, only the enactment of legislation passed by Congress requires unions to return to the bargaining table to negotiate how policy changes are implemented; agencies must wait until previously agreed upon reopener dates to implement policies issued via executive order, new regulations or guidance memos.
“They claim telework agreements are unlawful—not true—and the amazing thing is they do it in a memo which does not carry the force of law,” he said. “They want to unilaterally rewrite the law.”
In a statement, American Federation of Government Employees National President Everett Kelley warned that the union will not acquiesce to the administration’s effort to skirt federal labor law.
“Union contracts are enforceable by law, and the president does not have the authority to make unilateral changes to those agreements,” Kelley said. “AFGE members will not be intimidated. If our contracts are violated, we will aggressively defend them.”
But Summerlin warned that there may not be any relief coming to unions and the workers they represent in the short term. Unions tried—and failed—to receive quick relief from the federal court system when President Trump issued a trio of anti-union executive orders in 2018, with a federal appellate court finding that unions must exhaust their administrative remedies before seeking judicial review.
The traditional venue for unions to seek redress—the FLRA’s unfair labor practice process—is hamstrung by the fact that the agency has not had a Senate-confirmed general counsel to prosecute cases in eight years. During the first Trump administration, unions found a workaround in the form of alleging unfair labor practices as part of the arbitrated grievance process, though the timeframe for a decision is much longer than through a ULP under a fully staffed FLRA.
“This is just one of the many breakdowns of the checks and balances system that we’re seeing throughout the federal sector right now,” she said. “It’s just a free-for-all . . . The executive branch has effectively cut off federal employees and their unions’ ability to get to a court to have these very important questions decided by judges.”
Don Kettl, professor emeritus and former dean at the University of Maryland School of Public Policy, warned that the Trump administration is seeking to set a precedent, so that it can effectively erase other union contract provisions that it finds thorny, such as official time or automatic dues collections, on a unilateral basis. And, as has been a running thread through other actions targeting the federal workforce, officials are inviting legal challenges.
“They target the basic processes and and practices inside government to which they object, and they’ve identified and fussed about those issues for a very long time,” he said. “So now, they’re doing everything they possibly can, as quickly as they can, to try to undo them, and they know with complete certainty that all of these will be contested in court. They are unquestionably trying to provoke a fight.”
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