United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

NATIONAL FEDERATION OF FEDERAL 

EMPLOYEES, LOCAL 476

And

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1904

And

DEPARTMENT OF DEFENSE,

UNITED STATES DEPARTMENT OF THE ARMY

U.S. ARMY COMMUNICATIONS-ELECTRONIC

COMMAND,

ABERDEEN PROVING GROUND, MD

 Case Nos. 23 FSIP 039 & 

042

ARBITRATOR’S OPINION AND DECISION

BACKGROUND

This case concerns two separate requests for assistance filed by NFFE, Local 

476 (NFFE) and AFGE, Local 1904 (AFGE), with the Federal Service Impasses 

Panel (FSIP or Panel) over proposed changes to a telework policy (the telework

policy). The Department of Defense, United States Department of Army, U.S. Army 

Communications-Electronic Command, Aberdeen Proving Ground, MD

(Management, CECOM, or Agency) is in a collective bargaining relationship with 

AFGE and NFFE. CECOM specializes in communications-electronics systems and 

equipment, to include setting up headquarters and command and tactical 

operations centers in remote areas to installing and maintaining communications 

systems in vehicles and aircraft. CECOM also provides training activities, field 

support for modifications and upgrades, and logistical expertise. It utilizes 

approximately 13,000 personnel amongst six components spread throughout the 

globe.
2

NFFE represents about 200 professional employees who encumber positions 

such as engineers, scientists and attorneys. It has a collective bargaining agreement 

that was executed in 2022. AFGE represents approximately 1,700 non-professional 

employees and it executed a CBA in 2019 that remains in place.

As stated above, AFGE and NFFE filed separate requests for assistance 

under Section 7119 of the Federal Service Labor Management Relations Statute, 

and the Panel promptly investigated the filings. On May 17, 2023, the Panel voted 

to assert jurisdiction over both matters, consolidate them and resolve them via a 

Mediation-Arbitration conducted by the undersigned Arbitrator. I held a virtual 

Mediation-Arbitration on June 26, 2023, and, despite the best efforts of all parties 

involved, resolution of all outstanding issues was not possible. Accordingly, I am 

now obligated to issue a final award resolving these matters.

BACKGROUND AND BARGAINING HISTORY

In 2014 the Agency implemented its telework policy; it then updated the 

policy in 2019. Under the 2019 policy employees are afforded two days of telework 

per week. As a result of increased telework flexibilities offered during the Covid-19 

pandemic, the Agency decided to alter the policy again. In 2022 the Agency notified 

all of its unions that the Agency wished to reopen the policy for negotiations and

AFGE and NFFE requested to negotiate. 

The Unions provided around 70 proposals in their initial offers to the Agency.

All parties had about 12 bargaining sessions from August 2022 through January 

2023. They had a single mediation session with the assistance of the Federal 

Mediation and Conciliation Services (FMCS) on February 23, 2023. Through all the 

foregoing efforts the parties reached agreement on all outstanding proposals save 

for one. Accordingly, the FMCS Commissioner released the parties from mediation

and NFFE and AFGE sought assistance from the Panel. As described above, I 

conducted a Mediation-Arbitration and accepted presentations and testimony. After 

the conclusion of mediation and prior to the arbitration portion, I requested the 

parties provide their final offers in writing to me and all other parties. The parties 

did so. On July 10, 2023, the parties submitted post hearing briefs. The record is 

hereby closed.

PRELIMINARY ISSUE

As part of their July 10th submissions to the Panel, AFGE included two 

unsolicited documents (unsolicited AFGE documents).1 In addition, the Unions 

included a final offer proposal that differed from the one provided at the June 26th

1 Specifically, AFGE submitted two documents labeled as: (1) witness achievement; and (2) CG letter 

of success. 
3

Mediation-Arbitration (alternative proposal). In this regard, at the hearing on June 

26th, the Unions provided the following language as their final offer:2

Eligible employees may be approved to telework a regular and 

recurring schedule that shows at least three days per pay period at the 

Official Duty Station. Personnel and CECOM sub organizations may 

pursue an exception to policy for this requirement. To accommodate 

new or changing mission needs, employees may, on their own 

initiative, come to the agency worksite on scheduled telework days 

without prior coordination with their supervisors as long as they know 

they will have the facilities needed to be productive.

This language calls for employees to be physically present 3 days a pay period

(3-day option). During several hours of arbitration, the Unions never indicated that 

any changes to this language would be forthcoming or that it was otherwise 

deficient. However, in their post hearing briefs on July 10th, the Unions provided 

the following language:

Eligible employees may be approved to telework a regular and 

recurring schedule that shows at least two days per pay period at the 

Official Duty Station. To accommodate new or changing mission needs,

employees may, on their own initiative, come to the agency worksite on 

scheduled telework days without prior coordination with their 

supervisors as long as they know they will have the facilities needed to 

be productive.3

In a reversal from what had been submitted at the hearing as their final 

offer, the post-hearing brief language now calls for an in-person presence of no more 

than 2 days per pay period (2-day option). The Unions did not alert the Panel or the 

Agency that it intended to provide this alternative language. 

The Agency objects to consideration of the above language because it differs 

from what the Unions offered at the hearing as their final offer, i.e., that employees 

would be required to be physically present 3 days per pay period. Additionally, the 

Agency objects to the following items on the grounds that they were allegedly raised 

for the first time in the Union post-hearing submissions:

• An allegation that teleworking employees are willing to provide ergonomic 

equipment at their own cost;4

2 See Email from NFFE Vice President T.A., “FW: NFFE-476 Witnesses for FSIP Union & CECOM 

Telework Policy Mediation,” (Sent: 1:56 P.M. E.T., June 26, 2023). 3 See AFGE Post-Hearing Brief at 1; NFFE Post-Hearing Brief at 1. 4 See AFGE Post-Hearing Brief at 3; NFFE Post-Hearing Brief at 3.
4

• A claim that CECOM’s duties are not functionally different from other 

Aberdeen Proving Ground entities where telework occurs;5 and 

• A Union statement about the Agency’s alleged failure to provide information 

the Unions requested;6 the Agency believes this refers to an information 

request unfair labor practice (ULP) charge, but notes that there was no 

discussion of this ULP at the Mediation-Arbitration.

In response to the Agency’s objections, AFGE claims it “feels” it presented 

everything discussed in AFGE’s brief and was merely summarizing its evidence. 

NFFE concedes it provided a 3-day option during negotiations and mediation, but it 

claims that option was presented as a settlement offer that the Agency rejected. 

Once the parties went to arbitration on June 26th, it is NFFE’s “recollection” that 

the offer it provided was the 2-day option. As to the ULP issue raised by the Agency, 

NFFE maintains that it is not requesting that the Panel rule on it. Rather, NFFE is 

merely asking the Panel to consider it as relevant evidence of information that the 

Agency failed to provide concerning the alleged effectiveness of in-person work.

After consideration of the parties’ positions, I will strike the two unsolicited 

AFGE documents because AFGE never requested permission to provide them. I will 

also decline to consider the alternative language the Unions provided in their posthearing briefs. The parties and I spent a significant amount of time at the June 26th

hearing ensuring that all parties involved had each side’s final offer language prior 

to the initiation of arbitration. Neither Union alleged the 3-day language offered at 

the hearing was a mistake. Indeed, as discussed above, the record contains the 

precise language presented by the Unions during the hearing.7 NFFE’s 

“recollection” is an inaccurate one. Considering the 2-day option now would cause

undue prejudice to the Agency because the Agency prepared its post-hearing brief 

under the assumption that the Unions’ final offer, as provided at the hearing, was 

the 3-day option.

With regards to the three other items that the Agency has alleged are newly 

raised, I find it unnecessary to address whether it is procedurally appropriate to 

consider them. The allegations raised in those three items are largely conclusory in 

5 See AFGE Post-Hearing Brief at 3; NFFE Post-Hearing Brief at 3. 6 See AFGE Post-Hearing Brief at 4; NFFE Post-Hearing Brief at 4. 7 The NFFE Vice-President’s June 26th email does reference a prior email it provided to the Panel on 

May 4, 2023, concerning the Unions’ position. But the Unions did not offer that May 4th exchange 

into the record. Much more importantly, the 3-day option was presented at the hearing, after much 

deliberation and discussion amongst the Union representatives and was represented as their final 

offer. Thus, I give no credence to the Unions’ May 4th reference.

It is also true that the Unions, in their initial FSIP filing, presented the 2-day option as their

position. However, the Unions did not raise or address this filing at the June 26th hearing when they 

presented their final offer. Thus, the language in the initial filing is irrelevant.
5

nature and were offered with little to no evidentiary backing. Thus, while I will 

permit those arguments to remain of record, I afford them little weight in my 

consideration of the Unions’ overall position.

SUBSTANTIVE ISSUE

Although this dispute involves two unions it concerns only one issue/proposal: 

how many days per pay period should bargaining unit employees be required to be 

physically present within the workplace?

I. Position of the Unions

At the hearing, the Unions identified the below language as their final offer:

Eligible employees may be approved to telework a regular and 

recurring schedule that shows at least three days per pay period at the 

Official Duty Station. Personnel and CECOM sub organizations may 

pursue an exception to policy for this requirement. To accommodate 

new or changing mission needs, employees may, on their own 

initiative, come to the agency worksite on scheduled telework days 

without prior coordination with their supervisors as long as they know 

they will have the facilities needed to be productive.

The thrust of the Unions’ proposal is that employees on regular and recurring 

telework would be required to be physically present no more than 3 days in a 2-

week pay period. The Unions argue that their proposal strikes the proper balance 

between maximizing workplace flexibilities for employees and ensuring the mission 

of the Agency remains fulfilled. During these proceedings the Unions provided 

uncontested information that many bargaining unit employees took advantage of 

maximum or increased telework flexibilities during the Covid-19 pandemic. The 

Unions claim that workplace performance did not suffer during this period; to the 

contrary, the Unions maintain that performance actually improved. This, according 

to the Unions, demonstrates that the Agency’s mission will not suffer due to

increased telework opportunities.

The Unions also provided testimony from 6 different bargaining unit 

employees who hold a variety of positions throughout the Agency. They generally 

testified8 that they capably perform their duties virtually with little to no concern 

expressed by their respective supervisors. Several employees testified that, when 

required to be present at the worksite, the duties they perform on-site are fully

capable of being performed while teleworking and are, in fact, performed in the 

same manner they would be performed were the employee teleworking. Indeed, 

multiple witnesses testified that work was harder on-site because of interruptions.

8 I will discuss some of the testimony in greater detail below.
6

Moreover, video conferences provide employees with the ability to learn from, and 

bond with, employees throughout the Agency’s services. The Unions also noted that 

increased telework is necessary for attracting and retaining a qualified workforce.

The Unions refute the idea that in-person duties would suffer due to the 

availability of increased telework. At least one witness offered that he recognizes 

certain of his duties need to be performed on-site and he takes the initiative to come 

into the worksite to perform these duties. Moreover, the Unions note that Section 

5(g)(5) of the telework policy grants supervisors the ability to recall employees for 

necessary duties.9

The Unions also presented surveys they conducted of their respective 

bargaining units. Much of the responses mirrored the testimony described above. 

Several employees stated that they would travel to the workplace without 

hesitation when needed to perform tasks that could be performed only on-site.

Although some employees did raise concerns about a lack of bonding and social 

interaction due to telework, the Union claims these concerns were offset by 

employee complaints of workplace distractions when required to be in the workplace

for the purpose of complying with telework policy.

Finally, the Unions argue that the Agency’s position does not accomplish 

goals established by recent Office of Management Budget (OMB) guidance

concerning the improvement of work environments. OMB issued OMB 

Memorandum, M-23-15, “Measuring, Monitoring, and Improving Organizational 

Health and Organizational Performance in the Context of Evolving Agency Work 

Environments,” (April 13, 2023), in conjunction with broader initiatives by the 

Federal government concerning post-pandemic philosophies. The Unions note this 

memorandum calls for Federal agencies to establish indicators for monitoring 

organizational health and growth and to rely upon “flexible work options” to 

increase meaningful in-person work.10 The Unions claim the Agency failed to 

provide any evidence demonstrating that its proposal would accomplish the goals 

set forth by the OMB Memorandum. 

II. Agency Position

At the hearing, the Agency identified the following language as its final offer: 

Eligible employees may be approved to telework a regular and 

recurring schedule up to three days per week with a minimum of two 

days per week at the Official Duty Station. To accommodate new or 

9 This section states that “Employees will . . . [r]eport to the traditional worksite on a scheduled 

telework day if needed and recalled for mission requirements that cannot be met through telework.” 

Telework Policy at 8.

10 NFFE Post-Hearing Brief at 1.
7

changing mission needs, employees may, on their own initiative, come 

to the agency worksite on scheduled telework days without prior 

coordination with their supervisors as long as they know they will have 

the facilities needed to be productive.

Acceptance of 7.3 counter and expanding Supervisor situational/adhoc 

approval authority to 6 consecutive weeks and Director/Command 

approval authority to 8 consecutive weeks.

The central premise of the Agency’s proposal is that employees are required 

to be physically present on-site 4 days per pay period. The Agency’s commanding 

officer is charged with undertaking a global view of the Agency’s health and success: 

they cannot limit themselves to a micro level review of individual employees and 

their respective supervisors. To buttress this world view, the Agency’s commanding 

officer – a Major General – submitted a written statement in which they expressed 

their philosophy on the foregoing. In summary, they offered:11

• The Agency’s workforce must be “agile and cohesive” to meet any potential 

“emerging and unforeseen conflicts across the globe.”

• The workforce must be capable of “deliver[ing] integrated weapon systems, 

business systems, and medical sustainment to enable full spectrum combat 

operations 24 hours per day 7 days per week.”

• After balancing the foregoing bullets and the needs of the workforce, the 

Major General concluded that the Agency’s position strikes the correct 

balance of providing soldier support and meeting work-life balance needs.

• This proposal, the Major General contends, meets employee needs “without 

sacrificing opportunities for face-to-face mentorship, fellowship, and 

cohesion.” This will lead to development of Army leaders for years to follow.

During the hearing, the Agency made much of the fourth bullet point. In its 

closing statement and its post-hearing brief, the Agency emphasized that increased 

workplace flexibility might lead to decreased leadership development.12 The success 

of the Agency’s mission is dependent upon incubating capable and developed leaders

now, something that can be best accomplished through regular in-person 

interaction. Indeed, the Agency notes that, even in the employee surveys provided 

by the Unions, some employees noted that telework decreased opportunities for 

increasing workforce bonding and cohesion.13 The Agency disagrees with the 

11 See the Agency’s pre-hearing submission, “MEMORANDUM FOR RECORD, SUBJECT: U.S. 

Army Communications-Electronics Command Proposed Telework Policy,” dated June 21, 2023. 12 See Agency Post-Hearing Brief at 3. 13 See id.
8

premise that individual supervisors are in a position to assess the best way to 

effectuate the Agency’s mission goals: the foregoing is something that only the 

Major General and other similarly situated Agency leadership are able to assess.

The Agency also notes that the Unions provide a proposal that differs from 

what was stated in its initial Panel filing. To wit, whereas the Unions’ original filing 

called for maximum telework per Office of Personnel Management (OPM) 

guidelines, i.e., up to 8 days of telework per pay period, the Unions’ final offer 

provided 7 days.14 More importantly, the offer submitted at the hearing did not 

reference supervisory discretion. Thus, the Agency believes the Unions’ position 

does not actually grant flexibility to supervisors.

ANALYSIS AND CONCLUSION

Throughout these proceedings the Agency has offered a number of important

and weighty goals. There can be no doubt that the Agency’s mission to support the 

United States defense force and to develop leaders who will facilitate the same is of 

the utmost importance. To be sure, I accord military personnel a significant amount 

of latitude in assessing the foregoing. As the Agency notes in its closing brief, 

failures to meet its mission do not simply mean that taxpayers do not receive a 

deliverable; rather, they could lead to the Army’s inability to properly address 

global threats.15

However, based upon the record that is before me, I cannot blindly accept the 

proposition that the only method for accomplishing the foregoing is to require 

bargaining unit employees to be on-site 1 more day per pay period than what the 

Unions request. Therefore, I conclude the proposal put forth by the Unions on June 

26, 2023, is the most appropriate proposal to impose as a resolution of this dispute.

The arguments and presentations offered by the Unions concerning expanded 

telework options were thorough and persuasive. Notably, only the Unions provided 

live testimony – subject to cross examination – on the proposals offered at the 

hearing. Six Union witnesses testified to the effectiveness of increased telework and

their ability to successfully perform their duties while teleworking. Moreover, 

several witnesses persuasively testified that their work suffered on-site due to 

workplace distractions. Notably, the Agency did not rebut or challenge the 

testimony concerning these distractions. It is hard to envision an environment that 

fosters growth when that environment is ensconced in distractions.

In addition to this general testimony, multiple Union witnesses offered 

specific testimony that I found compelling. One software engineer – Witness D.B. –

testified that 60% of their team consists of contractors who perform their duties 

14 See id. at 4. 15 See id. at 3.
9

fully while teleworking. D.B. did not testify that this arrangement negatively 

impacted their division’s effectiveness, nor did the Agency make such a claim. 

Indeed, most of the work D.B. performs on-site is work that is fully performable 

while teleworking. D.B. also testified that they experienced multiple workplace 

distractions each day they are on-site and that they lost about 15 minutes of 

worktime per distraction. Finally, they also testified that coming to the worksite

requires an onerous commute.

Witness B.T. testified that they are on a workforce with 66% teleworking 

employees and that most of this work is also work that is easily performable from a 

telework site. Witness B.T. also loses a significant amount of time on days they 

report to the worksite due to their commute.

Union Witness A.G. testified that they provided virtual mentorship to 

mentees; A.G. noticed no difference between virtual and in-person mentorship.

Again, the Agency did not challenge these claims. 

Finally, Witness M.M. estimated that around 5 individuals on her team 

departed CECOM out of frustration arising from increased in-person attendance.

These incidents, taken together, present a compelling picture that the Agency’s 

mission flourishes notwithstanding increased telework; an in-person presence does 

not, in and of itself, lead to a furtherance of Agency goals. Indeed, sometimes inperson presence decreases effectiveness. 

The Unions provided surveys of bargaining unit employees that captured 

much of the same information discussed in the preceding paragraphs. Thus, both inperson testimony and written statements buttressed the position of the Unions. It is 

true that in the surveys some individuals complained about lack of bonding and 

cohesion building opportunities. Nothing prohibits those employees who benefit 

from more in-person interactions from going into the workplace voluntarily. I give 

credence to the Unions’ argument that for many employees the negatives of 

workplace distractions outweigh the positives associated with in-person 

interactions.

In contrast to the presentations offered by the Unions, the Agency’s 

presentation was largely conclusory and lacking in specifics. Notably, at the hearing 

the Agency did not present any witnesses of its own or even cross examine any of 

the Union witnesses. The former is particularly notable given the Agency’s heavy 

reliance upon the Major General. While the Major General identified several 

important goals in their position paper they did not do so in real time and did not 

subject themselves to questioning by the Union. Moreover, the substance of their 

statement contains a number of conclusory assertions. For example, the Major 

General states that the Agency’s position is “carefully crafted to . . . develop Army 

leaders who will shape national security posture for years to come.” What specific 
10

criteria did the Major General rely upon to reach this conclusion? What is it about 

the Unions’ position that is at odds with the Major General’s assessment? The 

answers to these and other questions are not evident on their face. 

These omissions are particularly significant given that the Agency failed to 

provide any evidence of situations in which the Agency’s mission suffered due to 

telework. The Agency did not provide a single incident in which work was not 

accomplished or mentorship failed. It did not identify any specific tasks that 

mandated a need for 4 days in-person work. 

I also reject the proposition that the Unions’ proposal deprives supervisors of 

discretion in decisions concerning individual requests for telework. The plain 

language of the Union proposals state that employees “may” be granted requests to

telework. The language does not state “shall” or “will.” This language is consistent 

with the agreed upon application process employees must go through when 

submitting requests for telework. In this regard, supervisors are required to, among 

other things, assess the eligibility of each position for telework via “yes” or “no” 

responses.16 For example, supervisors must answer whether a position needs to 

perform on-site duties or whether telework would result in a decrease in service to 

the customer base.17 Thus, the framework in place appears to leave a great deal of 

discretion to supervisors. 

Finally, I address the Agency’s concern that individual supervisors are 

unable to appreciate the breadth of the Agency’s overall mission and, therefore, are 

not in a position to evaluate the need for an increased in-person presence. I do not 

find this position persuasive. To begin with, as noted in the previous paragraph, the 

Agency’s own policy grants supervisors a significant amount of discretion in 

assessing whether to authorize requests for telework. This high level of supervisory 

discretion undercuts the Agency’s claim. Moreover, common sense dictates that 

supervisors would not be in positions of authority if they lacked the capacity to 

understand the needs of their employer and how to best use their workforce to meet

those needs. 

DECISION

Having carefully considered the arguments and evidence presented in this 

case, as the Statute requires, I hereby order the parties to adopt the following 

language in their agreement regarding the CECOM telework policy: 

Eligible employees may be approved to telework a regular and 

recurring schedule that shows at least three days per pay period at the 

Official Duty Station. Personnel and CECOM sub organizations may 

16 See Appendix A & C – Telework Request Package. 17 See id. at 2.
11

pursue an exception to policy for this requirement. To accommodate 

new or changing mission needs, employees may, on their own 

initiative, come to the agency worksite on scheduled telework days 

without prior coordination with their supervisors as long as they know 

they will have the facilities needed to be productive.

/Pamela Schwartz/

Pamela Schwartz

Panel Member

July 28, 2023