The American Federation of Government Employees Council 216 has filed an unfair labor practice complaint, alleging the agency bypassed ongoing negotiations over the return to traditional work sites and engaging in “surface-level” bargaining.
The union representing employees of the federal agency that oversees discrimination complaints against employers accused management of illegally engaging in surface level bargaining before unilaterally implementing a plan to return employees to traditional work sites next week.
Last week, the Equal Employment Opportunity Commission told bargaining unit employees that they will be expected to report to work one day per week for a month beginning May 16, and twice a week from mid-June until the end of 2022. The news came just half an hour after the agency informed the American Federation of Government Employees Council 216, which represents EEOC workers, of the decision. Managers and other non-bargaining unit employees have been reporting to traditional work sites since last month.
The decision came as a surprise to AFGE Council 216 President Rachel Shonfield, who said she had been awaiting a counteroffer from management regarding the union’s latest reentry proposal, which would have ensured bargaining unit employees would return to work sites in some capacity by the end of May.
Shonfield said that after the agency postponed reentry due to the Omicron variant of COVID-19, she had hoped that would provide enough time to iron out the details of how to bring employees back to work sites when needed. But despite EEOC’s promise to provide a draft reentry plan in December 2021, the union did not receive it until March 4, severely hampering the parties’ ability to negotiate.
Over the last two months, the union pushed, unsuccessfully, to expand telework from the agency’s pre-pandemic stature while maintaining in-person operations at field offices, as well as to set up processes to govern reentry, covering everything from joint labor-management office safety walkthroughs to how employees can request which days of the week they will work in-person.
“Our permanent [telework policy] allowed for up to 5 days of telework per [pay period], although many employees haven't been allowed to take advantage of that, instead only teleworking one or two days a week, with a lot of people not having any,” Shonfield said. “Something else that’s interesting is that under the pandemic, everyone was allowed to telework, but that’s not true after the current reentry plan, and [the two days in-person rule] and everything else in reentry expires on Dec. 31. Everyone should continue to be eligible for telework, because they’ve been doing this successfully for two years.”
In EEOC Chairwoman Charlotte Burrough’s email to staff, she noted that only a small fraction of the agency’s workload came from in-person visits to agency offices before COVID-19 emerged, and telephonic and other virtual services became even more popular over the course of the pandemic.
“Before the commission transitioned to emergency telework, about 15% of the almost 200,000 inquiries that the EEOC received in [fiscal] 2019 were handled in-person at our 53 field offices across the country,” she wrote.
Following the news that EEOC was moving ahead with reentry unilaterally, AFGE filed an unfair labor practice complaint with the Federal Labor Relations Authority, alleging, among other things, surface-level bargaining, a term used to describe negotiations that are not conducted in the interest of reaching agreement, but rather to check a box to show that they engaged with a union.
In a statement, EEOC spokeswoman Nicole St. Germain said that the agency has, in fact, been bargaining in good faith with AFGE and will continue to do so. But she declined to provide Government Executive with a copy of the reentry plan.
“While we have made progress, we have been unable to resolve several key issues,” she said. “[We] remain committed to seeking an agreement with the union and look forward to continuing our ongoing discussions regarding the impact and implementation of the EEOC’s reentry plan on bargaining unit employees.”
In the short term, Shonfield described “chaos” as employees and union representatives try to get ready for reentry. Employees have been asked to sign new telework agreements and request which days they would prefer to be in the office from their supervisors, while some union officials have reported being invited to safety walkthroughs of their offices, although they don’t know what criteria will be used for determining whether conditions are satisfactory.
“The union’s phones have been ringing off the hook with confusion about how this is going to happen, and to give an example, a union rep has been told to go in for a walkthrough, but the agency hasn’t even told the union officially, ‘OK, we’re going to pick up what we like about the joint walkthroughs idea,’” she said. “[It’s] funny, because our proposal had processes for all of this. It would have been a safe and orderly reentry this month like the agency wanted . . . And oddly, we still have this pending thing where the agency said they’d send us a counteroffer, and we haven’t gotten anything.”
St. Germain said that “the union” had been given a copy of the safety checklist staff will use as they inspect their offices this week. But Shonfield said she had not been provided a copy of the checklist, although she couldn’t be certain whether an individual union steward or other representative had gotten a copy.
Shonfield said that in the end, this discord between labor and management will hurt the agency’s ability to recruit and retain qualified workers.
“Employees are justifiably upset that they’re put in this situation and that the agency is not working with their union, and on the point of telework, our staff has been by all accounts serving the public for two years under maximum telework, and employees are upset that they’ve been asked to fill out surveys about their productivity under telework, but the agency has been playing short shrift with that,” Shonfield said. "Our employees read about and see other agencies expanding their pre-pandemic telework programs, and then when they see that EEOC doesn’t want to do that on a permanent basis, many employees will vote with their feet and leave to work at modern agencies that have flexible options.”