United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

NATIONAL TREASURY EMPLOYEES TINION

And

FEDE,RAL ELECTION COMISSION

Case No. 23 FSIP 037

DECISION AND ORDER

fi.led. before the Fedetal Service

Impa aI Treasury Employees Union (Union)

and t ncy or Management) Purluant to Section

TLIgof the Federal service Labor-Management Relations statute' The matter

concerns negotiations over the expansion of telework and alternative work

;;h;;i;t iaWSl. On June 22,2o23,the Panel informed' the parti-es that it had

asserted jurisdiction over this dispute and ordered resolution through an Informal

conference to be conducted. via Panel Members Mark Gaston Pearce and Pamela

schwartz. Because the parties d.id not fully resolve all outstanding issues, the Panel

issues the following Decision and Order'

The Agency is an ind.ependent regulatory agency of the United States whose

purpose is to enforce campaign financ" law in United States federal elections' The

Union represents over 150 non'professional and' professional employees located in

washington, D.C. The parties are governed by a labor master agreement (LMA)

that expired on February 28,2O23.As a consequence of the covid'19 pandemic, the

Agency permitted increased telework and AWS flexibilities' Consequently, the

parties agreed to reopen their LMA article that covers telewbrk and AWS in order

io negotiate a pilot program to temporarily, and perhaps permanently, expand' the

two forgoing items. The parti"* ""u.h"d agreement on all aspects save for one and

they joirtly sought assistance from the Panel tn 22 FSIP 048. The issue involved

concerned. whether schedules would. revert to pre-pandemic status should the pilot

program end without a permanent negotiated. expansion already in place' The Panel

asserted jurisdictior, orr", the filing, ordeted resolution via a Written Submissions

process, and issued a Decisio.r unJOrder imposing the lJnion's language in full on

August 8,2022.
I.

2

The pilot program began in February 2O22 and the parties had several "check

in points" during 2022.In December 2O22 the parties had a check in meeting and

the Agency provided the Union with several pieces of information, and the Union

invoked negotiations over the permanent expansion of increased workplace

flexibilities. In early January 2023 the Union provided its first proposal. The parties

had 6 days of bilateral negotiations sessions in January and February 2O23. On

Vlarch 27,2023, the parties had a single 3 hour mediation session with the Federal

Mediation and Conciliation Services (FNICS). The parties could not make movement

during mediation so the FMCS released them from mediation. The parties

subsequently sought assistance from the FSIP.

On June 22, 2023, the Panel informed the parties that it had asserted

jurisdiction over this dispute and ordered resolution through an Informal

Conference to be conducted via Panel Members Mark Gaston Pearce and Pamela

Schwartz. The Members held an in-person conference in Washington, D.C. on July

24th and July 2gtt' where they assisted the parties in resolving a number of issues.

However, the parties were unable to settle 5 issues. Accordingly, the N{embers

accepted evidence and witness testimony on those issues. Additionally, the parties

submitted post'hearing briefs on August 19th. The record is hereby closed.

ISSUES

There are frve issues that remain in dispute: (1) number of telework days; (2)

availability of remote work; (3) office sharingi (4) core daysi and (5) break periods

for certain employees on AWS.

Telework Davs

A. Aeency Areument

The Agency proposes that employees on a telework schedule must report to

their duty station at least 4 days per pay period. Under the pilot program employees

were required to report 3 days a pay period. The Agency's language is as follows:

Employees participating in Regularly Scheduled Telework must be

scheduled to work at the ODS no less than four (4) calendar days per

pay period.l

The Agency argues that its proposal fully balances the interests of employees

seeking an expansion in telework with "the need for in-person work to facilitate

better cross-agency communication and collaboration, as well as training and

mentorship opportunities, to support the Agency's mission effectiveness and

1 Agency Final Offer at 2.
organizational health."2 As to the former, the Agency notes that this is an expansion

ft'om the parties' pre-pandemic LMA which permitted telework up to 2 days per

week.3 Employees were required to be in person 3 days per week, whereas the

Agency currently proposes that they only need be present 2 days per week.

As to the Agency's claims concerning communication, collaboration, and

mentorship opportunities, etc., the Agency first notes and concedes that as part of

the pilot program the Agency conducted a formal written assessment (the

assessment) that was developed by several of its components but was spearheaded

by its human resources (Hn) department. This assessment considered:

Pilot Program enrollment and usagei workforce satisfaction with the

Pilot Program flexibilitiesi the impact of the Pilot Program on mission

achievementi effects of the Pilot Program on employee recruitment,

retention, and moralei employees' ability to access training, technology,

and equipment for hybrid work; and the potential effects of the

COVID-19 pandemic on the way the Pilot Program flexibilities were

being used.a

Although the above demonstrates a thorough breadth of analysis, the Agency

nevertheless believes that the assessment contained limitations. Notably, the

Agency claims the assessment was limited to a relatively brief period of 6 months,

relied on self'reporting, and did not account for all performance period cycles.

Because of these limitations, the Agency supplemented its frndings with scholarly

and academic studies concerning in person workplace attendance. These studies

demonstrate, among other things, that a lack of in person connection inhibits

collaboration and communication and encourages emplo5rees to "silo" amongst

themselves.s Thus, to the Agency, these studies demonstrate a basis for increasing

in person attendance.

The results of the studies are buttressed by testimony from FEC Chair Dara

Lindenbaum who testifred at the Informal Conference on July 25th. Specifrcally, she

testifred that it was the opinion of her and other FEC Commissioners that

workplace collaboration had suffered under pandemic telework and expanded

telework under the pilot program. She testifred that virtual meetings involving

employees had become more confrontational and the Chair attributed that to a lack

of in person interaction.

Chair Lindenbaum testifred that in person attendance would also foster

collaboration by promoting "water cooler" discussion amongst the workforce. In such

2 Agency Brief at 5.

3 See id. al2.

4 ld. at 4.

s iee id. al6-7.
discussions, the Chair testifred, employees could foster a connection by discussing

items such as reality television and local dining establishments. These discussions

would create and enhance workplace connections and could not be accomplished

virtually. The Chair also expressed a concern that a lack of in person presence could

act detrimentally to the Washington, D.C. business scene in terms of employees who

could provide financial support to local businesses, e.g., for meals.

While acknowledgrng that employees have expressed an interest in expanded

telework, the Agency downplays its signifrcance. As part of the assessment, HR

conducted exit interviews of employees who left the Agency during the pilot period,

HR discovered that the most common factor cited for leaving was to seek promotion

opportunities elsewhereiG that is, telework, or lack thereof, was not a motivating

factor in decisions to leave the Agency.

B. Union Areument

The Union proposes that teleworking employees be required to be physically

present no more than 2 da5's per pay period. That is, the Union is looking to

decrease the amount of in person time set under the pilot program. The Union's

language is as follows:

Employees participating in Regularly Scheduled Telework must be

scheduled to work at the ODS no less than two (2) calendar days per

pay period.T

In enacting the pilot program, the parties agreed that the pilot would "give

the Agency the opportunity to assess which flexibilities can be offered on a more

permanent basis and potentially expanded."8 The pilot has been in place since

February 2022. During the pandemic, employees were granted maximum telework.

So. the bargaining unit has had over 3 years of experience with a 3 da5' (or less) in

person per pay period requirement. The Union believes the data collected as a

result of the pilot, and even during the pandemic, demonstrates that expansion of

telework is appropriate as envisioned by the aforementioned language of the pilot.

The most probative evidence. the Union contends, arises from the Agency's

own assessment. Tellingly, the assessment concluded thatr

[f]ne Pilot Program has been successful in providing the FEC

workforce with expanded workplace flexibilities, as compared to those

5 See Agency Ex. F al20-27.

7 Union Final Offer at 2.

B Union Brief at 3.
5

offered by the Agency pre-pandemic, and that the flexibilities offered

have led to positive impacts on the Agency.e

In addition to the folegoing, the Union notes that the assessment concluded

that the Agency accomplished its mission with no adverse impact, increased

productivity due to diminished workplace distractions, and that there was a desire

flom supervisors to permanently codify or expand the flexibilities under the pilot

program.l0 Surveys of supervisors backed up much of the foregoing conclusions.

Additionally, the Union conducted its own workforce survey and learned that 98% of

the bargaining unit believes they could telework in accordance with the Union's

proposed language and not create any adverse impacts upon the mission of the

Agency.ll Moreover, the lJnion's analysis of employee performance data established

that employees' performance scores actually increased during the pilot program.

And, increased telework saved the Agency at least $250,000 in transit suhsidies

during Fiscal Year 2022.12

The Union also argues that expanded telework is necessary for attracting and

retaining qualified employees. This was buttressed by the assessment itself and hy

hearing testimony from the HR Director who acknowledged that some employees in

Agency exit interviews listed telework as an important factor in job satisfaction.

Indeed, the Union conducted another survey of its unit and discovered that 88% of

the respondents stated they would consider leaving the Agency if the Agency failed

to remain competitive with other Federal agencies in the arena of telework.13 This

fact is signifrcant because the Union anal5'2sfl a number of other Federal agencies

and discovered the;r offel telework/remote work at the same level of the pilot

program or greater.

The Union rejects claims presented by the Agency. The Union argues that the

Agency provided little to no actual data to buttress a need for decreasing telework

levels established by the pi.lot program. For example, although the Agenc-v claimed

that collaboration decreased. the Agency's own assessment states that supervisors

were able to foster collaboration and communication during the pilot period.la

Similarly, the Union finds the AgencSr's citation to Offrce of Management and

Budget (ONIB) guidancels unpelsuasive because that guidance calls upon agencies

to support conclusions via real world data: the Agency did not do so according to the

s /d. at 5 (citing Union Ex. 3 at 3).

ra See id.

11 See ld. at 6.

12 See id. al8.

r) iee id. al7.

ra See id. at 9-10.

1s Although not cited in the Agency's brief, at the hearing the Agency did reference OMB Memorondum M-23-15,

Measuring, Monitoring, ond lmproving Organizotional Health ond Orgonizational Performsnce in the Context of

Evolving Agency Work Environments (Apr. 73,20231 (OM B Guidance). This document is discussed in greater detail

below.
6

Union. The Union rebuffs the Agency's concern that the pilot program lasted only 6

months: this was the timeframe the parties agreed upon and, in any event, more

than 6 months have elapsed since February 2022.

The Union also argues that the FEC Chair's testimony was unpersuasive

because she did not identify any concrete harms arising from the pilot program.

Instead, the Union believes its own witness testimony demonstrated the feasibility

of the lJnion's proposed approach. The Union President offered testimony

concerning her role as an FEC enforcement attorney. She testified that there are

approximately four meetings per month that can involve attorneys - executive and

open sessions. However, attorneys need only be present if they are presenting

materials and they will not always present at meetings. Moreover, the Union

President testified, meetings were conducted without problem during the pilot

program, a fact that was buttressed by the assessment. The Union President also

testifred that she was approached by a number of bargaining unit employees who

stressed their ability to perform their duties in accordance with the parameters of

the Union's proposal.

C. Conclusion

The Panel orders the parties to withdraw their proposals and imposes a S-day

per pay period reporting requirement to resolve this dispute. Since February 2022

the parties have operated under a pilot program that granted employees the option

to report to the office no more than 3 days per period. The Union seeks to alter this

by decreasing the number to 2 days and the Agency wishes to increase the number

to 4 days. After a review of the record and the parties' arguments, the Panel

concludes that neither position is sufficiently supported.

As des.cribed above, the Agency proffered an exhaustive and meticulous

assessment of the pilot program that reviewed mountains of evidence, data, and

information in order to reach one primary conclusion: increased telework benefitted

the work force andthe Agency. The assessment reached this conclusion by

"combin[ingl program data from across FEC offrces, workforce statistics, three

workforce surveys, and interviews to paint a broad picture of how the Pilot

Program's flexibilities [were] working and how they affect[ed] Agency operations as

well as the FEC workforce."16 And, as discussed in the surr\maries of the parties'

arguments, the assessment produced a number of positive conclusions that telework

not did nof inhibit the Agency's operations, it actuall5' enhanced them. And, both

employees and supervisors found the experience to be an overall positive one.

The Agency nevertheless attempts to circumvent this conclusion by offering a

host of unpersuasive academic studies that fail to account for the specific

environment studied during the assessment period. It is hard to take seriously a

16 Union Ex. 3 at 3.
7

study that did not actually study the parties' conditions. Further, it is of no

consequence that the pilot period lasted "only" 6 months. As the Union correctly

points out. this was the timeframe mutually agreed upon by the parties. If the

Agency had concerns about the length, the appropriate time for addressing those

concerns would have been when the parties established the program. And, in any

event, the parties have been operating under the terms of the pilot since February

2022: nearl-rr 1.5 years have elapsed since the enactment of the pilot, a time period

which should have provided suffrcient data to the Agency.

At the hearing the Agency also relied upon OMB guidance that addresses the

health of work environments in the face of evolving workplace realties. The

guidance does call upon Federal agencies to establish work plans and provides that

agencies are expected to "increase meaningful in-person work at Fed.eral offrces."17

The ON{B guidance put agencies on notice about a potential need to increase in

person attendance, OMB also placed them on notice that such attendance should be

" meaningful."

The Agency's efforts to meet the qualifiiing language in the OMB guidance

were lacking. The FSIP Members placed the parties on notice, prior to the Informal

Conference,ls that they should be prepared to present evidence concerning the

impact of telework and remote work upon the workplace. Despite this, the Agency

provided little in the way of information to demonstrate that telework under the

pilot program was disruptive. None of the Agency's exhibits or documents presented

such claims. Instead, the sole evidence offered came in the form of trotr-.p*.ifr.

testimony from the FEC Chair in which she raised concerns that certainmeetings

were allegedly more confrontational because they occurred virtually rather than in

person- But, she failed to offer specifrc examples or incidents. Instead, much of the

Chair's testimony focused on the Agency's belief that telework should be reduced in

order to support collaboration and communication. Again, however, specifics were

few and far between. Indeed, the Agency's own assessment undercut ihe Agency's

argument by noting that supervisors reported they were able to successfully foster

these two items during the pilot program. The Agency attempted to discredit this

point at the hearing by claiming that these reporting supervisors were biased in

favor of expanding telework. But, if the Agency intend.ed. to consider supervisor;,

assessment responses valid onlyif they aligned with the Agency's preferred policy

conclusion it is difficult to find credible the Agency's chosen methods of evaluation.

Bereft of specific examples of telework diminishing the workplace, the Agency

Chair testified to a fervent desire to establish what could only be viewed as team

building in the form of "water cooler talk." In such situations, she contended,

employees could build esprit de corps by sharing information on topics like

It OMB Guidance at 1.

18 At the direction of Members Pamela Schwartz and Mark Gaston Pearce, FSlp Staff notified the parties of this

request by email on July 20, ZOZ3.
8

entertainment and dining. To ask whether hypothetical in person conversations

about pizza and "Desperate Housewives" support undercutting the results of the

parties' expansive and meticulously crafted pilot program is to answer the question.

Accordingly, the Agency's proposal is rejected.

Although the Agency's proposal is unsupported, it does not follow that the

IJnion's proposal should be imposed. The pilot program did state that its

parameters, after study, could be maintained or expanded. But, the latter was not

any sort of mandate. As the Union is seeking to alter the terms of the pilot program,

it too bears a burden to demonstrate that a change is necessary. The Union did not

meet this burden.

Much of the lJnion's argument for expansion essentially focused on its

contention that, because the assessment data was overwhelmingly positive for

telework under the program, it logically follows that expansion is warranted. Yet,

this data establishes only that the 3 day per pay period reporting requirement

created a successful environment that did not impede Agency operations. The Union

has not offered any concrete data establishing what, if any, impact a2 d,ay reporting

requirement could have upon the workplace. It may be that the lJnion's proposal

could actually bolster the Agency's fortunes, but in the absence of empirical data it

is difficult to conclusively reach this determination.

The witness testimony provided by the Union does not alter any of the

foregoing. To wit, the Union President testified that executive session meetings

were successfully' accomplished via telework under the pilot program. While this

may demonstrate that telework established in accordance with the pilot is

sustainable, there was no direct evidence presented demonstrating what impact

telework could have on these meetings were it expanded. Additionally, although

employees she surveyed expressed their opinion that expanded, telework would still

permit accomplishment of the mission, in the absence of empirical data these

opinions cannot be considered conclusive.

In summar;u, neither party's presentations support adoption of their

respective position. However, the information in the record establishes that

expanded telework under the pilot program was successful.and did not result in any

serious detriment to the Agency's operations. Accordingly, the following language

will be imposed to resolve this dispute rather than the language offered by the

parties:

EmPlol'ee s p articip atin g

scheduled to work at the

pay period.

Remote Work

in RegularlSr $.h"Uuled Telework must be

ODS no less than three (3) calendar days per

il.
A. Union Position

The Union proposes an expansive remote work article that is attached as an

appendix to this document. In addition, the Union proposes the following language

in the "Key Defrnitions" section of the parties'N{OU:

Official Duty Station (ODS) 

- The duty station for an employee's

position of record as indicated in their most recent notifrcation of

personnel action. The ODS generally is the FEC building at 1050 First

Street, NE, Washington, DC 20463, except for those employees remote

working.te

The Union's proposal would grant employees the ability to request the option

to remote work. The Union argues imposition of a remote work program is

appropriate because, since telework during the pandemic was successful, the data

for expanded telework gathered during the pilot program also supports remote

work. Additionally, remote work options are necessary to stay competitive with

other Federal agencies. The Union's proposal is intended to introduce remote work

in a cautious manner by, among other things, identifuing positions that are

appropriate for remote work, ensuring selected positions can still meet the needs of

the Agency. and encouraging ongoing supervisory monitoring.20 The Union argues

that any concerns about costs are overblown because the lJnion's proposal permits

denial of remote work requests if such requests would be too financiall5' burdensome

to grant.

B. Asency Position

The Agency opposes remote work in its entirety. Remote work was never

assessed as part of the pilot program. Moreover, it is inappropriate to cite remote

work experience during the pandemic because this time period was unique. To that

end, employees were not even permitted in the offices absent advance permission,

the Agenc5' modifred its operations, and members of the public the Agency interacts

with modified their operations as well. The Agency also believes that the lJnion's

proposal would interfere with the Agency's goals of increasing collaboration and

communication.

The Agency is also concerned that adopting the lJnion's proposal would lead

to a substantial increase in costs. If a remote work employee is located outside of

the Agency's commuting area, the Agency could have to adjust that employee's

locality pay and also pay for any commuting costs if that employee has to travel to

1e Union Final Proposal at 1.

20 See Union Brief at LI n.I2.
10

the Agency's offrces.2l Additionally, the Agenc)'would have to hire and assign

personnel to handle travel requests for remote work employees. That the Union's

proposal permits consideration of costs is of no consequence because the costs are

Iargely unknown.

The Agency also offers the following language for its ODS definitional

language, which omits any reference to remote work:

Official Duty Station (ODS) - The duty station for an employee's

position of record as indicated in their most recent notification of

personnel action. The ODS generally is the FEC building at 1050 First

Street, NE, Washington, DC 20463.22

C. Conclusion

The Panel orders the Union to withdraw its proposals on remote work and

imposes the Agency's language for "Key Definitions." As the Agency correctly notes

in its brief, the topic of remote work was not one that was addressed as a part of the

pilot program. This fact is confirmed by the language of the pilot itself which states

that it was designed to temporarily provide employees with "expanded telework and

flexible work schedule options."23 Thus, under the agreed upon framework of the

pilot program, telework was intended to be the focus. The Union does not directly

dispute this conclusion. Instead, the Union attempts to divert focus to remote work

under the pandemic and lessons learned about telework under the pilot. But,

pandemic remote work was not subject to the rigorous analysis established under

the pilot, so in these circumstances it would be inappropriate to rely upon that

situation. And, lessons learned from telework are inapplicable when the issue at

hand is remote work.

Based on the foregoing, a remote work article should not be in the parties'

agreement. As the parties did not contemplate such a program in enacting the pilot

program, it would be inappropriate to impose one now. Accordingly, the Panel

orders the Union to withdraw its proposal on this topic.

As the lJnion's proposals on remote work are no longer viable, that leaves

only the Agency's definition for ODS in the "Key Defrnitions" section of the parties'

MOU. The parties agree on inclusion of language concerning the defrnition of ODS,

the only dispute for this language is a reference to proposed remote workers.

Because remote work is not a part of this MOU, it logically follows that the Agency's

Ianguage for ODS should be imposed because that language omits any reference to

21 See Agency Brief at 13.

22 Agency Final Offer at 1.

23 See Union Exhibit L at 1 (emphasis added); see olso Union Exhibit 3 at 3 (noting that pilot program was enacted

to provide employees with expanded telework and hours of work schedule flexibilities on a temporary basis).
11

remote work. However, this imposition should not be seen as offering an opinion on

the appropriateness of the parties exploring remote work in any other contexts. In

any event, the Panel orders the imposition of the Agency's language on the

definitional language for "ODS."

III. Offrce Sharine

A. Agency Position

The Agency wishes to include language in the agleement about office sharing,

i.e.. "hoteling." Their proposed language is as follows:

Employees who are regularly scheduled to work at the ODS five (5) o*

more da5's per pay period will be eligible to have an assigned

office/workstation. Employees who are regularl5' s.h.arled to work at

the ODS four (4) or fewer days per pay period may be required to

participate in a workstation- sharing/office-sharing arrangement or to

work from a hoteling station.za

Currently, most Agency employees have a single dedicated offrce. Because,

even under the Agency's telework proposal, the parties are moving towards

enhancing telework opportunities the Agency believes it needs to begin to utilize

office space more effrciently. In this regard, some Agency divisions are currentl;r

close to capacit-v in terms of offrce space, and the Agency will be looking towards

expanding the work force in the future. So, the Agenc;,- has a keen interest in

establishing offrce sharing procedures and believes doing so now, rather than

waiting for separate negotiations. is appropriate because the parties are using these

negotiations to establish new work parameters.

At the hearing the Union indicated that they believed this issue may be

covered b5r an existing 2Ol7 memorandum of understanding (MOU) on office space.

In response, the Agenc;z argues that the parties have an established past practice of

bargaining office space issues outside the context of mid-term or term

negotiations.2s Additionally, the Agency maintains the NIOU should not bar

negotiations in this matter because the parties are now bargaining new telework

standards and these standards should supersede the events'of prior MOUs.26

B. Union Position

The Union rejects the Agency's proposal in its entirety. The Agency has not

demonstrated a need for it and it was not a topic that was covered under the pilot

2a Agency Final Offer at 2.

2s See Agency Brief at 1.0-11

26 See id. at7L-
12

program. At the hearing, the Agency's own witnesses admitted this proposal was

based upon a potential future need rather than an immediate pressing need.

Further, the Agency's stated need is based upon future staffing increases, but the

Agency has been historically understaffed.zT

Additionally, Article 54 of the parties' LNLA grants the parties the ability to

bargain mid-term matters. Offrce space issues should be reserved for such

situations. The Agency's proposal, the Union contends, effectively asks the Union to

waive its rights under Article 54. Additionall5', the parties negotiated a

comprehensive 2017 MOU on offrce space when the Agency relocated to its current

headquarters facility. This agreement establishes private offices for all employees.

C. Conclusion

The Panel orders the Agency to withdraw its proposal. Like remote work, the

topic of hoteling was not covered under the pilot program. Thus, it was not subject

to any evaluation or study. As such, in these circumstances. it rvould be

inappropriate to impose any language on hoteling. This conclusion does not offer

any opinion on the parties' rights and obligations arising under any negotiated

agreement, including any actions that may arise in the future.

IV. Core Davs

A. Asencv Position

The Agency seeks to introduce a concept of "core days," in which all

employees in a division would be required to be physically present in the offrce for

the work day. The Agency's language is as follows:

To facilitate communication, teambuilding, training, and mentorship,

each division will have one designated core day per week on which all

employees within that division shall be regularlS' s.6.trled to work at

the ODS. Each division's core days will be announced prior to the

initial application period described in Section t(C)(t) above. The core

days are counted as a part of the in-office requirement described in

Section II(BX2Xa) above.28

Under the Agency's proposal, employees would be required to be physically

present once per week. The Agency argues that "[a]long with facilitating

collaboration, communication, training, and mentorship, the division-wide core days

will help build greater employee cohesion within groups, to support mission

27 See Union Brief at 1-2.

28 Agency Final Offer at 2.
13

achievement and organizational health."2e The Agency has already implemented

core days for non-bargaining unit employees throughout the Agency, including

within its HR division. At the hearing, the HR Director testifred that core days

enhanced collaboration, increased. communication, and improved team dynamics.

The Agency also maintains that core days are consistent with the OMB

Guidance's caII for agencies to "substantially increase meaningful in person" work.30

Similarly, new ,"port* have surfaced. that the White House has recently pressed

Federal agencies for more of an in person presence in Federal offices's1

B. Union Position

The Union offers the following counter proposal:

There will be one core in office day per pay period, starting with the

frrst open season following the effective date of this agreement. The

specific core day will be determined by each division. Managers will

consult with employees when setting and making changes to the core

day. The core day will be on a Tuesday, wednesday, or Thursday

unless agency operational concerns require a different day. In the

event a divisiorrbelieves that operational concerns require different

day, the agency will provide NTEU with a written explanation of the

reasons and will, upon request, meet to discuss the issue before

instituting the core day requirement.s2

The key point of the l;nion's proposal is that core days would be adopted, but

they would be limited to one per pay period. The lJnion's approach appropriately

balances the interests of the parties in a measured manner' It also provides

employees with a greater opportunity, with supervisor approval, to cluster their

"orl d.^y" o1 u *p".ifrc day in the pay period so as not to interfere with telework

opportunities. The Agency has not demonstrated a need for more core days,

particola*ly grven that its own assessment found that collaboration was already

fostered under the pilot Program.

C. Conclusion

The Panel imposes the Union's lan'guage to resolve this d.ispute. The topic of

core days was not one that was add,ressed in the pilot pl'ogram. Nevertheless' the

2e Agency Brief at 7.

10 ld. atg (citing OMB Memorondum M-23-75, Meosuring, Monitoring, ond Improving Organizational Heolth and

Orgonizationol Performance in the Context of Evolving Agency Work Environments (Apr' 13, 2023))'

31 /d. (citing David Shepar dson, White House pushes US agencies to 'aggressively' boost in-person work, Reuters

(Aug. 5, 2023,5..13 pM), https://www.reuters.com/world/us/white-house-pushes-us-agencies-aggressively-boostin-person-work-2023-08-05/).

32 Union Final Offer at 3.

I
1.4

parties agree on adopting the general concept. As such, it is appropriate to impose

some language concerning core days.

As to which language should be adopted, the Panel believes the lJnion's

language is the most appropriate one in these circumstances. It captures a balance

between the LTnion's interests - increased telework - and the Agency's interests -

increased in person collaboration and communication. The Union's language also

grants supervisors the ability to assess the appropriate core day between Tuesday

and Thursday while still granting the Union the ability to discuss any issues arising

from any needed changes.

The Agency's proposal, in light of the record, is overbroad and unsuppo-rted. It

relies heavily upon a similar rationale that was rejected on the subject of

diminished telework da5's. The Agency points to the positive experiences that HR

employees have had with a weekly core da5'. Even if true, however, a snapshot of

this one shop does not establish that all other divisions would have an identical

experience.

The Agency also relies upon OMB guidance that calls for increased in person

attendance. As discussed already, this guidance explicitly calls for "meaningful' in

person presence.s3 The use of this adjective demonstrates that in- person attendance

should not be mandated simply because of personal preference, rather, it should

have purpose. The Agency did not demonstrate suffrcient meaningful reason to

adopt its proposal. Relatedly, the Agency's reliance upon news stories concerning a

desire for increased in person footprint is of no avail. As of this decision's

publication, there has been no issuance of related guidance or instruction.

V. Break Periods

A. Union Position

The Union proposes the following for employees who are on a flexible work

schedule (f'WS):

Employees may schedule a regularly scheduled break in the day of up

to two (2) hours with the flexible bands and subject to supervisor

approval (e.g., office coverage needs are met). Employsgs may arrange

any such break consecutively with their lunch period provided that

their lunch period is at the start or end of the core hours. For example,

an employee could take lunch from 2:00 PM-2:30 P\{ and have a

regularly scheduled break from to 2:30 PNI to 3:30 PN{. Employees who

would like to schedule a break during the day on an ad hoc basis

should use the credit hour program, or other applicable leave, to do so.

33 oMB Guidance at 1.
15

On a case-by-case basis the Agency may permit scheduling of the break

period during the core hours where a compelling need exists.sa

Under the pilot plogram the parties agreed that employees on an FWS could

request up to a t hour break during flexible time bands3s with supervisory approval.

The Union proposes that this be modifred to a 2 hour break period. This increase

would provide employees with greater opportunity to attend to necessary personal

matters, such as picking up children from school, without the need to resort to

Ieave. The Union maintains that the assessment suggests that no adverse

consequences would arise from adopting the flnion's proposal.

B. Aeency Position

The Agency proposes retaining the status quo as established under the pilot

program. So, their language is as follows:

Employees may schedule a regularly scheduled break in the day of up

to one (t) hour with the flexible bands and subject to supervisor

approval (e.g., office coverage needs are met). Employees may arrange

any such break consecutively with their lunch period provided that

their lunch period is at the start or end of the core hours. For example,

an employee could take lunch from 2:00 PM'2:30 PM and have a

regularly scheduled break from to 2:30 PM to 3:30 PM. Employees who

would like to schedule a break during the day on an ad hoc basis

should use the credit hour program, or other applicable leave, to do so.

On a case-by-case basis the Agency may permit scheduling of the break

period during the core hours where a compelling need exists.36

The Agency believes the status quo language is appropriate because it strikes

a balance between the needs of the employees and ensuring that employees are

available to address timely Agency needs. Adopting the Union's proposal, the

Agency fears, would undermine the latter and also diminish the Agency's interest in

fostering collaboration and communication.

C. Conclusion

The Panel imposes the Agency's language to resolve this dispute. The

Agency"s proposal represents a continuation of the status quo and, most

importantly, was subject to study and analysis under the contours of the pilot

3a Union Final Offer at 3-4.

3s Under an FWS schedule, workdays have: (1) core hours; and (2) flexible hours. Core hours are the designated

period of the day when all employees must be at work. Flexible hours are the part of the workday when employees

may (within limits or "bands") choose their time of arrival and departure.

36 Agency Final Offer at 3.
16

program. The existing break period glants employees on FWS some degree of

flexibilitS' to attend to private matters while also ensuring they are available during

core hours to address mission needs. Neither the Agency nor the assessment

identifred any negative consequences as a result of this t hour break period.

Accordingly. its imposition is warranted.

The Union has not offered suffrcient rationale to justifii adoption of its

proposed 2 hour break period. The Union claims that it could alleviate certain

situations for employees. like child care, but at no point has the Union offered any

specifrc real world examples involving actual employees. Moreover, the lJnion's

argument is premised on the assumption that, because the t hour break did not

result in hardship to the Agency's operations, it must logically follow that a 2 hour

break would be just as well received. Again, however, the Union failed to provide

any data or information that supports such a conclusion.

ORDER

Pursuant to the authority vested in the Federal Service Impasses Panel under 5

U.S.C. $7119, the Panel hereby orders the parties to adopt the provisions as

discussed above.

f,d#/fuNlartin H. N{alin

FSIP Chairman

October 17,2023

Washington, D.C.