Independent Union of Pension Employees for Democracy and Justice (Union) and Pension Benefit Guaranty Corporation (Agency)

74 FLRA No. 85                                                          

INDEPENDENT UNION

OF PENSION EMPLOYEES FOR

DEMOCRACY AND JUSTICE

(Union)

and

PENSION BENEFIT

GUARANTY CORPORATION

(Agency)

0-NG-3671

_____

DECISION AND ORDER

ON NEGOTIABILITY ISSUES

September 30, 2026

_____

Before the Authority:  Colleen Duffy Kiko, Chairman,

and Anne Wagner and Charles O. Arrington, Members

(Member Wagner concurring)

I.               Statement of the Case

This matter is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor‑Management Relations Statute (the Statute).^[1]  The petition for review (petition) involves four proposals concerning remote work.^[2] For the following reasons, we find Proposal 1(b)(f) (Proposal 1), Proposal 4.1 (Proposal 2), and subsections (1)(a), (1)(c), and (1)(d) of Proposal 4.2 (Proposal 3) are within the duty to bargain.  We also find Proposal 4.3 (Proposal 4) and subsection (1)(b) of Proposal 3 are outside the duty to bargain.

II.             Background

The parties are negotiating a new term collective‑bargaining agreement (CBA).  Until a new agreement is reached, the parties’ 2011 CBA remains in effect.  The instant dispute arose after the Agency implemented a new remote‑work directive (the directive) that applies to employees who are not a part of the bargaining unit.  Thereafter, the parties began negotiating over a remote-work agreement that will apply to bargaining‑unit employees.  The parties agreed that, if they reach a remote-work agreement, then the terms of that agreement will be incorporated into the new CBA the parties are negotiating.

During their remote-work negotiations, the Agency declared several Union proposals nonnegotiable.  Subsequently, the Union filed the petition; an Authority representative conducted a post‑petition conference (conference) with the parties under § 2424.23 of the Authority’s Regulations;^[3] the Agency filed a statement of position (statement); the Union filed a response to the statement (response); and the Agency filed a reply to the response (reply).^[4]

III.           Preliminary Matter:  We do not dismiss the petition under § 2424.30(a) of the Authority’s Regulations.

The Agency argues the Authority should dismiss the petition because it is directly related to a pending unfair-labor-practice (ULP) charge.  Under § 2424.30(a) of the Authority’s Regulations, where a union files a ULP charge or a grievance alleging a ULP (ULP grievance), and the ULP charge or ULP grievance concerns issues “directly related” to a negotiability petition, the Authority will dismiss the negotiability petition.^[5]  The dismissal is without prejudice to the union’s right to refile the petition after the ULP charge or ULP grievance is resolved administratively.^[6]  The Authority has stated that “§ 2424.30(a) precludes . . . litigation of identical bargaining[-]obligation claims simultaneously in a negotiability appeal and” a ULP charge or ULP grievance.^[7]

In originally adopting § 2424.30(a), the Authority stated:  “[T]he Authority’s experience has been that the piecemeal resolution of bargaining[‑]obligation and negotiability claims is both inefficient and ineffective.  The changes adopted in this rule will reduce duplicative administrative decision making and increase the likelihood that disputes will be resolved more timely.”^[8]  The Authority also stated that the statutory ULP process and the ULP‑grievance process are “better suited [than the negotiability process] to resolving the entire dispute.”^[9]

Applying § 2424.30(a), the Authority has found that a pending ULP or ULP grievance concerning an agency’s duty to bargain is directly related to a negotiability proceeding because it could render the negotiability proceeding moot.^[10]  Similarly, a ULP or ULP grievance is directly related when it expressly addresses issues “currently before” the Authority on a negotiability appeal.^[11]  By contrast, the Authority has found pending ULP charges or ULP grievances were not directly related to negotiability proceedings when the proposals at issue in the two proceedings were not the same,^[12] and where there was “no claim, or record evidence, that the ULP proceeding could resolve issues related to” the proposal.^[13]

Here, the Union’s ULP charge alleges:

In March [2023], the Agency implemented [r]eturn to [o]perations prior to the completion of [Federal Service Impasses Panel (FSIP)] procedures, causing great harm to employees with disabilities needing [r]easonable [a]ccommodations [(RA)].  The Union had filed a ULP in December [2022] on the Agency’s posting to implement [r]eturn to [o]perations prior to completing negotiations on the topic and telework.  In March [2023], the [Federal Labor Relations Authority (FLRA)] investigator insisted upon including post[-]December happenings, despite my insistence that a new charge should be filed.  I provided e-mails and concerns from employees asking for RA for their grave health issues.  In December 2022, the [p]arties agreed to negotiate [r]emote [w]ork separately from telework to get an agreement on telework.  In March 2023, the Agency announced that a policy on [r]emote [w]ork had been published in late February [2023], and tried to strong arm the Union to negotiate post‑implementation.  The Union refused.  [The Agency relayed] that they would cause problems for employees.  The Agency began denying [RA] [r]equests or not providing effective RA requests, and telling employees that they could get [r]emote [w]ork in lieu of RA, putting the health of employees, and employment[,] at risk.  In addition, the Agency refused to process certain RA [r]equests. Most recently, in March 2023, it appears that the Agency is attempting to repudiate provisions in the CBA, the article on telework, and the [Agency] policy on telework for medical telework, which allows medical telework where an employee has to be close to home for the care of a close relative, while not actually providing the care during work hours.  Employees have contacted the Union with concerns.  Again, the FLRA held the Union’s charges causing delays in processing of cases for the Union and causing great harm to employees with disabilities.^[14]

The Authority’s Office of Case Intake and Publication issued an order directing the Union to show cause why the Authority should not dismiss the petition without prejudice, as directly related to the ULP charge, under § 2424.30(a) of the Authority’s Regulations.^[15]

The Union responded, asserting the ULP charge is not directly related to the petition because:  (1) “[t]he charge does not concern whether the Agency has a duty to bargain over any of the proposals at issue in the petition” (the petition proposals);^[16] (2) “[n]one of the [petition] proposals . . . address[] Agency implementation of any action prior to completion of FSIP proceedings”;^[17] (3) the ULP charge “does not assert that the Agency ‘tried to strong arm the Union to negotiate [remote work] post‑implementation’ by asserting that the Agency has no duty to bargain [r]emote [w]ork prior to implementation of its policy,” but “concerns only whether the Agency ‘tried to strong arm the Union to negotiate [remote work] post-implementation’ by means other than asserting no duty to bargain prior to implementation”;^[18] (4) the petition proposals are unrelated to “the Agency’s treatment of employees with disabilities, the Agency’s handling of [RA] requests, or the Agency’s alleged repudiation of CBA telework provisions”;^[19] and (5) in the negotiability case, “the Agency does not argue that it has no duty to bargain [r]emote [w]ork prior to implementation of its [r]emote[-w]ork policy.”^[20]  Thus, the Union asserts, the pending ULP proceedings would not resolve whether the Agency has an obligation to bargain over the petition proposals.^[21]

Although the record before us is not perfectly clear, we find it supports a conclusion that this negotiability dispute is not directly related to the ULP charge.  As stated above, the petition involves bargaining proposals related to remote work.  The part of the ULP charge that appears most relevant to this negotiability dispute alleges the Agency implemented a “policy on [r]emote [w]ork . . . and tried to strong arm the Union to negotiate post‑implementation.”^[22]  The ULP charge’s plain wording, and the Union’s assertions in its response to the show-cause order, indicate the ULP charge concerns various Agency actions before and during negotiations on remote work, but not the Agency’s duty to bargain over remote work.  The ULP charge does not allege the Agency failed to bargain over the petition proposals^[23] – in fact, there is no record evidence those proposals were before the Agency pre-implementation.^[24]

Therefore, the ULP charge does not appear to present an issue regarding whether the Agency had a duty to bargain over the petition proposals, or to bargain over remote work generally.  As a result, it is unlikely that resolving the ULP charge would also resolve whether the petition proposals are within the Agency’s duty to bargain.^[25]  For these reasons, we find the petition is not directly related to the pending ULP charge, and we do not dismiss the petition under § 2424.30(a) of the Authority’s Regulations.

IV.            The Agency’s covered-by arguments lack merit.

The Agency argues Proposals 1 and 4 are outside the duty to bargain because they are “covered by” certain provisions of the 2011 CBA.^[26]  Although the Union argues the covered-by doctrine does not apply here,^[27] the Agency disagrees because the 2011 CBA specifies that “the current terms of the [2011 CBA] will remain in effect until superseded by a new [a]greement,” which the Agency interprets as meaning a new term agreement.^[28]

Under the Authority’s covered‑by doctrine, a party is not required to bargain over conditions of employment that have already been resolved by bargaining.^[29]  However, the covered-by doctrine deals only with an agency’s statutory duty to bargain during the term of a CBA; it does not bar bargaining over issues that arise during negotiations over a new CBA.^[30]

It is undisputed that the parties are currently negotiating a new term CBA and that, if they reach an agreement on remote work, then that remote‑work agreement will be incorporated into the new CBA.^[31]  In other words, although the parties are negotiating remote work separately from their term negotiations, any remote‑work agreement they reach will become part of their new CBA.  As such, the covered-by doctrine does not exclude topics “covered by” the 2011 CBA from the remote-work negotiations at issue here and does not provide a basis for finding Proposals 1 and 4 outside the duty to bargain.^[32]  Therefore, we find the Agency’s covered-by arguments lack merit.

V.             Proposal 1

A.           Wording

Current bargaining unit employees applying for this program have already been classified under position titles and position descriptions determined to be in the bargaining unit.  As such, no remote worker agreement / arrangement, shall in and of itself, change the Bargaining Unit Status of the position titles and position descriptions currently held by these employees.  If the Agency determines to change the bargaining unit status of a bargaining unit employee in a bargaining unit position and who is remote working, the Agency will notify the Union prior to making a change.  The Agency will follow Article 1, Section 3 of the parties’ 2011 CBA.^[33]

B.           Meaning

The parties agree that, in Proposal 1:  “current bargaining unit employees” means employees the Union represents; “this program” means a remote-work program; “agreement” and “arrangement” are synonyms; and “agreement / arrangement” in the second sentence refers to a remote-work agreement under the “program” referenced in the first sentence.^[34]

However, the parties disagree about the meaning of the phrase “in and of itself,”^[35] as well as Proposal 1’s operation as a whole.  According to the Union, “in and of itself” means that entering into a remote-work agreement “will not be the one condition that leads to a change in an employee’s bargaining-unit status.”^[36]  In other words, the Union asserts:

[the] change of an employee’s work location to a remote location – in and of itself, without any other change of any kind (such as a change in position classification or work to be performed, or a redetermination of whether, under applicable legal standards, the employee’s position is a bargaining[‑]unit position) – shall not change an employee’s [bargaining‑]unit status.^[37]

By contrast, the Agency contends “in and of itself” means that neither entering into a remote-work agreement nor anything caused by entering into a remote‑work agreement would allow the Agency to change an employee’s bargaining-unit status, once the employee has entered into the remote-work program.^[38]  In this regard, the Agency asserts that, under the proposal, even “changes in risk designation of a position or employee, [or] changes to duties[] or work assignments” would preclude the Agency from changing a remote‑working employee’s bargaining-unit status.^[39]

Where parties disagree over a proposal’s meaning, the Authority looks first to the proposal’s plain wording and the union’s statement of intent.^[40]  If the union’s explanation comports with the proposal’s plain wording, then the Authority adopts that meaning in determining whether the proposal is within the duty to bargain.^[41]

The Union’s explanation of the proposal’s meaning – that the signing of a remote‑work agreement will not be the sole reason for changing an employee’s bargaining‑unit status, and that the proposal does not prevent the Agency from changing employees’ bargaining-unit status for any other reasons – comports with Proposal 1’s plain wording.  Therefore, we adopt the Union’s explanation for purposes of assessing Proposal 1’s negotiability.^[42]

C.           Analysis and Conclusions

1.           Proposal 1 is not contrary to § 7103(a)(14)(B) of the Statute.

The Agency argues Proposal 1 is contrary to § 7103(a)(14)(B) of the Statute because the proposal would “prohibit the Agency from reclassifying a remote employee’s position for any reason, such as changes in position risk assessment or changes in assigned duties, if that reclassification would change the bargaining[-]unit status of that employee.”^[43]

In pertinent part, § 7103(a)(14)(B) of the Statute excludes policies, practices, and matters relating to the classification of any position from the definition of “conditions of employment” and, by extension, the duty to bargain.^[44]  As discussed above, we have adopted the Union’s explanation of Proposal 1’s meaning as allowing the Agency to reclassify an employee’s position for any reason.  Put another way, Proposal 1 does not prevent the Agency from reclassifying an employee for any reason.^[45]  Rather, Proposal 1 merely prohibits the Agency from changing an employee’s bargaining-unit status based solely on their remote‑work status.^[46]  Because Proposal 1 does not prohibit the Agency from reclassifying employee positions, the Agency’s § 7103(a)(14)(B) argument – which is based on a different interpretation of Proposal 1 – provides no basis for finding the proposal outside the duty to bargain.^[47]

2.           Proposal 1 is not contrary to § 7106 of the Statute.

The Agency argues Proposal 1 affects management’s rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute, respectively.^[48]  Specifically, the Agency argues the “proposal restricts the Agency’s right to assign work to an employee, or assign employees to different positions, if the employee’s bargaining[‑]unit status would change as a result of that exercise of management’s rights, despite the operational necessity of the change.”^[49]

The Agency also contends Proposal 1 affects management’s right to determine the Agency’s internal‑security practices under § 7106(a)(1) of the Statute.^[50]  In this regard, the Agency argues the proposal “would prohibit the Agency from changing an employee’s risk[‑]level designation once they are a remote worker if the change affects the employee’s bargaining[‑]unit status.”^[51]

Further, the Agency argues management has the rights “to hire, assign, direct, layoff, and retain employees[,]  . . or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees.”^[52]  According to the Agency, Proposal 1 “interferes with these rights . . . by prohibiting the Agency’s ability to exercise them once an employee is a remote worker if, in doing so, it would change the employee’s bargaining[-]unit status.”^[53]

All of the Agency’s management-rights arguments regarding Proposal 1 are based on the Agency’s position that the proposal would preclude it from changing an employee’s bargaining-unit status for reasons other than that employee’s status as a remote worker – such as operational necessity or changes in the risk designation of the employee’s position.  Again, we have adopted the Union’s explanation of Proposal 1’s meaning, which does not limit the Agency’s ability to change employees’ bargaining-unit status based on such considerations.  As such, the Agency’s arguments do not demonstrate Proposal 1 is contrary to § 7106 of the Statute.

Accordingly, the Agency has not demonstrated Proposal 1 is outside the duty to bargain.^[54]

VI.         Proposal 2

A.           Wording

                    (a) If the remote worker agreement is terminated by the supervisor because the arrangement no longer meets the business needs of the organization, and the supervisor reassigns the employee to PBGC’s principal office, the employee will:

1.      Be served with a notice of termination at least 30 days in advance of the agreement termination date, along with instructions for reassignment; and

2.      Report to the reassigned official worksite for duty after at least 60 calendar days, but no more than 75 days after the termination effective date for those living and working remotely more than 50 miles outside of the official worksite, or such other later time as agreed upon with the affected employee’s supervisor, from the effective date of the remote worker agreement termination date; or

3.      Report to the reassigned official worksite for duty after at least 30 calendar days, but no more than 45 days after the termination effective date for those living and working remotely within 50 miles of the official work site, or such other later time as agreed upon with the affected employee’s supervisor, from the effective date of the remote worker agreement termination date; and

4.      Be entitled to applicable relocation reimbursement prescribed in Federal Travel Regulations (FTR) when relocation to Headquarters in Washington, D.C. is at least 50 miles from the employee’s remote work location; and

5.      Be eligible for severance pay if removed from Federal service by “involuntary separation” (5 CFR 550.703) for reasons other than inefficiency.

6.      Be considered “involuntarily” separated for purposes of this provision if an employee declines to accept reassignment outside their commuting area if the employee’s position description or other written agreement does not provide for such a reassignment; and

7.      Continue performing assigned duties at the previously approved worksite until reporting to the reassigned worksite.

                    (b) If the remote worker agreement is terminated due to the employee’s non-acceptance of a management-initiated amendment to the agreement, and the supervisor reassigns the employee to PBGC’s principal office, the employee will:

1.     Be served with a notice of termination at least 30 days in advance of the agreement termination date, along with instructions for reassignment; and

2.     Report to the reassigned official worksite for duty after at least 60 calendar days, but no more than 75 days after the termination effective date for those living and working remotely more than 50 miles outside of the official worksite, or such other later time as agreed upon with the affected employee’s supervisor, from the effective date of the remote worker agreement termination date; or

3.     Report to the reassigned official worksite for duty after at least 30 calendar days, but no more than 45 days after the termination effective date for those living and working remotely within 50 miles of the official work site, or such other later time as agreed upon with the affected employee’s supervisor, from the effective date of the remote worker agreement termination date; and

4.     Be entitled to applicable relocation reimbursement prescribed in Federal Travel Regulations (FTR) when relocation to Headquarters in Washington, D.C. is at least 50 miles from the employee’s remote work location; and

5.     Be eligible for severance pay if removed from Federal service by “involuntary separation” (5 CFR 550.703) for reasons other than inefficiency.

6.     Be considered “involuntarily” separated for purposes of this provision if an employee declines to accept reassignment outside their commuting area if the employee’s position description or other written agreement does not provide for such a reassignment; and

7.     Continue performing assigned duties at the previously approved worksite until reporting to the reassigned worksite.^[55]

B.           Meaning

The parties agree subsection (a) of Proposal 2 applies only when an Agency supervisor terminates a remote-work agreement and directs the employee’s reassignment because the remote-work agreement no longer meets the Agency’s “business needs” – a term the Agency has the discretion to define.^[56]  The parties also agree that “PBGC’s principal office” is the Agency’s headquarters office (headquarters), which is currently located in Washington, D.C.^[57]  In addition, the parties agree that, under subsections (a)(2) and (a)(3), after an employee’s remote-work agreement is terminated, the Agency would permit that employee to continue working remotely during a transition period until the employee reports to headquarters for duty.^[58]  Further, the parties agree that:  “agreement” and “arrangement” are synonymous;^[59] “reassigns” means a change in the location where work is performed, a change to the employee’s duty station, or both;^[60] management determines the “agreement termination date”;^[61] “severance pay” has the definition set forth in 5 U.S.C. § 5595;^[62] “applicable relocation reimbursement” refers to reimbursements authorized by the Federal Travel Regulation (FTR), as set forth in Title 41, Chapters 300 to 304 of the Code of Federal Regulations;^[63] and “involuntary separation” and “for reasons other than inefficiency” have the definitions set forth in 5 C.F.R. § 550.703, as it is currently written.^[64]

Subsection (b) of Proposal 2 concerns the circumstances surrounding the Agency’s decision to terminate an employee’s remote‑work agreement because the employee refuses to accept an Agency‑initiated change to the remote‑work agreement.^[65]  The parties agree that, because the wording in subsection (b) is parallel to the wording in subsection (a), the same meanings and operations apply to both subsections of Proposal 2.^[66]

However, the parties disagree about whether Proposal 2 would entitle employees to severance pay they are not lawfully entitled to receive.  According to the Union, Proposal 2 “incorporate[s] entitlement to severance pay only as authorized by applicable statute and regulations.”^[67]  By contrast, the Agency argues Proposal 2 would provide severance pay to employees who are not lawfully entitled to receive it because they have not been “involuntarily” separated.^[68]  Specifically, the Agency asserts that:  5 C.F.R. § 550.703 states a separation is “involuntary” if a “written agreement does not provide for . . . reassignment”;^[69] the directive states termination for refusal to accept reassignment for the purposes stated in subsections (a) and (b) is not an involuntary separation;^[70] and the current remote-work agreements state employees who sign such agreements agree that reassignment upon termination of the remote-work agreement is voluntary.^[71]

As discussed above, where the parties disagree over a proposal’s meaning, the Authority looks first to the proposal’s plain wording and the union’s statement of intent.^[72]  If the union’s explanation comports with the proposal’s plain wording, then the Authority adopts that meaning in determining whether the proposal is within the duty to bargain.^[73]

The Union’s statements regarding severance pay do not conflict with any plain wording in Proposal 2.  With regard to the Agency’s reliance on the directive (which, as noted above, applies only to non-bargaining-unit employees) and the current terms of the bargaining-unit employees’ remote‑work agreements, the Agency does not contend that the terms of those documents – including whether they “provide for . . . reassignment”^[74] – are outside the Agency’s duty to bargain.  In any event, under the Union’s explanation of Proposal 2, the employees would only be entitled to severance pay if permitted by 5 C.F.R. § 550.703.  Even assuming, without deciding, that the directive and the current remote‑work agreements provide for reassignment and, thus, render separations following directed reassignments voluntary, Proposal 2 would not entitle employees to severance pay because such payment could conflict with § 550.703.

We find the Union’s explanation of Proposal 2, as permitting severance pay only when such pay would be consistent with applicable statutes and regulations, comports with Proposal 2’s plain wording.  Therefore, we adopt that explanation for purposes of assessing Proposal 2’s negotiability.

C.           Analysis and Conclusions

1.        Proposal 2 is not contrary to 5 U.S.C. § 5595 or 5 C.F.R. § 550.703.

The Agency argues Proposal 2 is contrary to law – specifically, 5 U.S.C. § 5595 and 5 C.F.R. § 550.703 – because the proposal “impermissibly seeks to expand entitlement to severance pay beyond what is authorized by the applicable statute and regulations.”^[75]  Title 5, § 5595(b)(2) of the U.S. Code states that “an employee who . . . is involuntarily separated from the service . . . is entitled to be paid severance pay in regular pay periods by the agency from which separated.”^[76]  In turn, 5 C.F.R. § 550.703 defines “involuntary separation,” and states that “when an employee is separated because he or she declines to accept reassignment outside his or her commuting area, the separation is ‘involuntary’ if the employee’s position description or other written agreement does not provide for such a reassignment.”^[77]

The Authority has held that, where a proposal or provision establishes the same requirements as an applicable law or regulation, the proposal or provision is not inconsistent with that law or regulation.^[78]  As discussed above, we have adopted the Union’s explanation of the meaning of Proposal 2, as entitling employees to severance pay only to the extent laws and regulations authorize such pay.  Consequently, there is no basis for finding Proposal 2 contrary to 5 U.S.C. § 5595 or 5 C.F.R. § 550.703, and we find these Agency arguments lack merit.^[79]

2.               Proposal 2 is an appropriate arrangement under § 7106(b)(3) of the Statute.

The Agency argues subsections (a)(2)-(3) and (b)(2)-(3) of Proposal 2 affect management’s rights to assign employees and assign work under § 7106(a)(2)(A) and (B) of the Statute, respectively.^[80]  According to the Agency, the disputed subsections of Proposal 2 affect its right to assign employees because “management has the right to reassign the employee to a different position at . . . [h]eadquarters,”^[81] and the delays caused by Proposal 2 prevent the Agency from doing so for specified periods of time.^[82]  Relatedly, the Agency argues the delays caused by Proposal 2 affect its right to assign work because they “interfere with management’s right to assign duties and work that must be performed at . . . [h]eadquarters.”^[83]

Because, as discussed below, we find the proposal is within the duty to bargain as an appropriate arrangement under § 7106(b)(3), we assume, without deciding, that Proposal 2 affects management’s rights to assign employees and assign work.^[84]

The Union asserts subsections (a)(2)-(3) and (b)(2)‑(3) of Proposal 2 are enforceable “appropriate arrangements” under § 7106(b)(3) of the Statute.^[85]  In determining whether a proposal is an appropriate arrangement, the Authority applies the two‑pronged test established in NAGE, Local R14-87 (KANG).^[86]

Under the first prong of the KANG test, the Authority determines whether the proposal is intended to be an “arrangement” for employees adversely affected by the exercise of the relevant management right.^[87]  To establish that a proposal is an arrangement, the union must identify the actual effects, or reasonably foreseeable effects, on employees that flow from the exercise of the management right and how those effects are adverse.^[88]  The alleged arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management’s rights.^[89]

If the proposal is an arrangement, then, under the second prong of the KANG test, the Authority determines whether the arrangement is “appropriate” because it does not excessively interfere with the stated management right.^[90]  The Authority makes that determination by weighing “the competing practical needs of employees and managers” in order to ascertain whether the proposal’s benefits to employees outweigh the proposal’s burdens on the exercise of the stated management right.^[91]

The Union asserts the above-cited subsections of Proposal 2 are intended to be arrangements for employees adversely affected by management’s decision to terminate an employee’s remote‑work agreement and reassign them to headquarters.^[92]  According to the Union, the subsections would allow employees “to make arrangements addressing the life disruptions inherent in making a long[-]distance move.”^[93]  By contrast, the Agency argues the proposals are not arrangements because the terminations of remote‑work agreements are not adverse effects flowing from the exercise of a management right; rather, remote work “is a . . . program that an employee voluntarily enters into and benefits from, not an agreement forced upon an employee at the direction of management.”^[94]

In determining whether a proposal is an arrangement, the Authority has considered the effects that the exercise of management rights may have on employees’ lives outside of the workplace.^[95]  The Authority also has recognized that an agency’s unilateral decision to relocate an employee adversely affects the relocated employee.^[96]  Consistent with these principles, we find that – even though employees may originally enter into their remote-work arrangements voluntarily – an Agency decision to terminate those arrangements against the employees’ will, and direct the employees’ reassignment or relocation, adversely affects those employees.^[97]

We find Proposal 2 seeks to ameliorate the adverse effects of Agency‑initiated terminations of employees’ remote-work arrangements.  Specifically, Proposal 2 gives employees time to prepare for their relocation to a new duty station that, in at least some cases, could be geographically distant from the employees’ previous duty stations.  Further, because Proposal 2 applies only when the Agency terminates employees’ remote‑work agreements against their will based on the business needs of the Agency, we find it is tailored to apply only to employees who are adversely affected by management’s exercise of its rights.  Therefore, we find that Proposal 2 is an arrangement.^[98]

As to the second prong of KANG, the Union cites the benefits described above – allowing employees time to make arrangements “addressing the life disruptions inherent in making a long[-]distance move.”^[99]  The Union further asserts the directive “recognizes the need for considerable time to report to [h]eadquarters” following the termination of a remote‑work agreement.^[100]  The Agency asserts the disputed subsections are not appropriate because they would “unreasonably and excessively delay the Agency’s ability to assign necessary work or duties to these employees, or assign them to different positions or details at . . . [h]eadquarters,”^[101] and would prevent the Agency from “assign[ing] work and duties . . . that can only be done at . . . [h]eadquarters.”^[102]  The Agency argues that, under Proposal 2, it cannot require employees to return to headquarters for up to 105 days (if outside the commuting area) or seventy-five days (if within the commuting area)^[103] because the seventy-five- and forty‑five-day periods are “on top of the [thirty] days of advanced notice already provided by” the proposal.^[104]

By giving bargaining-unit employees time before they must relocate to a new duty station, Proposal 2 provides a significant benefit to those employees, especially given the impact that relocation can have on the employees and their families.  However, the extent of this benefit varies between bargaining‑unit employees depending on whether the employee lives within fifty miles of the Agency’s headquarters when their remote‑work agreement is terminated.  In this regard, subsections (a)(2) and (b)(2) of Proposal 2 apply to employees who live and work remotely more than fifty miles from headquarters.^[105]  The Union notes that it intended these subsections to provide employees with time to make arrangements for “the life disruptions inherent in making a long‑distance move.”^[106]  Accordingly, subsections (a)(2) and (b)(2) of Proposal 2 provide employees with a longer window – sixty to seventy-five days – to account for substantial schedule changes and possible relocations.^[107]  Because these subsections ameliorate the impact of long-distance relocations by providing adversely impacted employees a sufficient transition period, we find that these subsections undoubtedly provide a significant benefit to employees.

By contrast, subsections (a)(3) and (b)(3) of Proposal 2 apply only to employees who live and work remotely within fifty miles of headquarters.  Thus, according to the Union, these subsections provide employees in the commuting area of headquarters with a shorter period for returning to the office because “the time required to make adjustments will probably not need to be as long.”^[108]  As the Union acknowledges, these employees may not face the same relocation burdens as employees who live more than fifty miles away.^[109]  Nevertheless, the Agency’s unilateral termination of a remote-work agreement is undoubtedly disruptive.  As the Union notes,^[110] the directive even contemplates the need for such a transition when the Agency terminates a remote-work agreement for reasons other than performance, misconduct, or employee-initiated termination; in fact, the directive states that the Agency will provide an employee with thirty days’ notice of the termination and up to forty‑five additional days before requiring the employee to report to headquarters^[111] – the same time frame provided by subsections (a)(3) and (b)(3).^[112]  Because these subsections provide employees within the commuting area a transition period to address any personal obligations that are structured around full‑time remote work, we find that they provide a meaningful benefit to affected employees.

As to the burdens, Proposal 2 delays the reassignment of bargaining‑unit employees to a new duty station for the specified periods of time.  However, the Agency’s arguments provide only general descriptions of Proposal 2’s burdens on management’s rights.^[113]  In this regard, the Agency does not explain what, or how many, positions are assigned solely to headquarters, or what, or how many, duties may be performed only at headquarters.  Nor does the Agency explain why it could not temporarily meet its needs with employees already assigned to headquarters.  The employees must also continue performing assigned duties at their current approved worksites until reporting to headquarters, which reduces the burden on the Agency’s ability to maintain work operations during the transition period.

In sum, we find that subsections (a)(2)-(3) and (b)(2)‑(3) of Proposal 2 provide significant benefits to employees, while any burdens that those subsections impose on management’s rights to assign employees and assign work are less significant.  As such, the disputed subsections of Proposal 2 are appropriate arrangements under § 7106(b)(3) of the Statute.^[114]

The Agency also claims that Proposal 2’s “severance[-]pay” provisions “cannot be considered appropriate arrangements” because “[p]roposals that conflict with government-wide regulations or are contrary to law do not constitute appropriate arrangements.”^[115]  However, this argument is premised on the Agency’s claim that Proposal 2 conflicts with 5 U.S.C. § 5595 and 5 C.F.R. § 550.703.  As we have rejected that claim above, the Agency’s appropriate-arrangement argument provides no basis for separately finding Proposal 2’s severance-pay provisions outside the duty to bargain.

For the above reasons, we find Proposal 2 is within the duty to bargain.^[116]  The Union also argues that subsections (a)(2)-(3) and (b)(2)-(3) of Proposal 2 are negotiable because they enforce an applicable law.^[117]  Because we find that the relevant subsections of Proposal 2 are appropriate arrangements under § 7106(b)(3), we need not address the Union’s claim that the proposal enforces an applicable law.^[118]

VII.       Proposal 3

A.           Wording

(1)    If a remote work agreement is terminated due to an employee’s request,

                             (a) The employee will be reassigned to PBGC’s principal office worksite.  However, if such employee wishes to change remote worksite, other than the principal office worksite, the employee must restart the application process.

                             (b) If the employee is assigned to a different worksite other than their previous remote worksite, under such circumstances the employee must report to the reassigned official worksite for duty:

                                                (i) after at least 60 calendar days, but no more than 75 days after the termination effective date for those living and working remotely more than 50 miles outside of the official worksite;

                                             (ii) after at least 30 calendar days, but no more than 45 days after the termination effective date for those living and working remotely within 50 miles of the official work site,

                                           (iii) or such other later time as agreed upon with the affected employee’s supervisor, from the effective date of the remote worker agreement termination date.

                             (c) Furthermore, the employee will continue performing assigned duties at the previously approved worksite until reporting to the reassigned worksite.

                             (d) If the employee does not accept the reassignment and elects to separate, the employee will not be entitled to severance pay.^[119]

              B.           Meaning

The parties agree Proposal 3 concerns the circumstances where an employee requests to terminate a remote-work agreement for any reason.^[120]  The parties also agree that:  “‘will’ in ‘will be reassigned’ indicates a requirement”;^[121] “reassigned” means a change in the location where work is performed, a change to the employee’s duty station, or both;^[122] “‘PBGC’s principal office worksite’ and ‘principal office worksite’ mean headquarters”;^[123] “‘change remote worksite’ means obtaining approval for a remote worksite other than the employee’s previously approved remote worksite (and other than headquarters, which is not a remote worksite)”;^[124] “‘the application process’ means the procedure for applying for a remote-work agreement”;^[125] “‘elects to separate’ means an employee chooses to leave the Agency’s employment”;^[126] and “‘severance pay’ has the meaning set forth in 5 U.S.C. § 5595.”^[127]

              C.           Analysis and Conclusions

1.           Subsection (1)(b) of Proposal 3 is outside the duty to bargain because it affects management’s right to assign employees and is not an arrangement.

The Agency argues that subsections (1)(b)(i) and (1)(b)(ii) affect management’s right to assign employees because they temporarily preclude the Agency from reassigning employees who terminate their remote‑work agreements to headquarters.^[128]  Management’s right to assign employees under § 7106(a)(2)(A) of the Statute includes the right to make initial assignments to positions, to reassign employees to different positions, and to make temporary assignments or details.^[129]  In this case, the subsections temporarily preclude the Agency from reassigning employees to positions at the Agency’s headquarters even after the employees voluntarily terminate the remote-work agreements that authorized their current assignment.^[130]  Because the proposed language directly limits the Agency’s right to reassign employees to headquarters, we find that subsections (1)(b)(i) and (ii) affect management’s right to assign employees.^[131]

The Union argues^[132] that, regardless of any effects on management rights, subsections (1)(b)(i) and (ii) are nonetheless within the duty to bargain because they require the Agency to comply with an “applicable law[]” within the meaning of § 7106(a)(2) of the Statute^[133] – specifically, § 706(2)(A) of the Administrative Procedure Act (§ 706(2)(A)).^[134] Incorporating arguments it made regarding Proposal 2,^[135] the Union contends that, by agreeing to allow employees to work remotely,

the Agency, itself, has created a circumstance in which, upon termination of the [remote-work] agreement, it would be arbitrary, capricious, an abuse of discretion, and therefore unlawful under . . . § 706(2)(A), to not allow the employee reasonable, considerable time to report for a new assignment or a new work assignment requiring full-time work at [h]eadquarters.^[136]

Section 706(2)(A) provides that courts, in reviewing federal agencies’ actions, shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”^[137]  Even assuming § 706(2)(A) applies in the context of this case, the Union does not cite any authority supporting the notion that § 706(2)(A) requires the Agency to give employees the amounts of notice subsections (1)(b)(i) and (ii) provide.  Although the Union cites Michigan v. EPA, that decision held the Environmental Protection Agency interpreted a particular statute unreasonably “when it deemed cost irrelevant to the decision to regulate power plants.”^[138]  Consequently, it has no bearing on the negotiability of subsections (1)(b)(i) and (ii).

Therefore, we find the Union has not demonstrated subsections (1)(b)(i) and (ii) enforce an applicable law within the meaning of § 7106(a)(2) of the Statute.

The Union also asserts subsections (1)(b)(i) and (ii) are appropriate arrangements for the same reasons it claims Proposal 2 is an appropriate arrangement.^[139]  As stated above, to establish that a proposal is an arrangement, a union must identify the actual effects, or reasonably foreseeable effects, on employees that flow from the exercise of the management right, and how those effects are adverse.^[140]  However, the Union does not explain how subsections (1)(b)(i) and (ii) ameliorate any actual or reasonably foreseeable adverse effects that flow from the exercise of a management right.  Unlike Proposal 2 – which concerns Agency-initiated terminations of remote-work agreements – subsections (1)(b)(i) and (ii) solely concern an employee’s decision to terminate their own remote‑work agreement.^[141]  Consequently, the Union does not demonstrate that subsections (1)(b)(i) and (1)(b)(ii) constitute arrangements within the meaning of § 7106(b)(3) of the Statute.^[142]  As such, we need not address whether subsections (1)(b)(i) and (ii) are “appropriate.”^[143]

For the above reasons, we find subsections (1)(b)(i) and (1)(b)(ii) of Proposal 3 are outside the duty to bargain.^[144]

D.           Severance

Section 2424.2(h) of the Authority’s Regulations states that “[s]everance applies when some parts of the proposal or provision are determined to be outside the duty to bargain.”^[145]  Accordingly, we now consider the Union’s severance request because we have found that subsections (1)(b)(i) and (1)(b)(ii) of Proposal 3 are outside the duty to bargain.

The Union proposes to sever subsections (1)(a), (1)(b)(i), (1)(b)(ii), (1)(b)(iii), (1)(c), and (1)(d) of Proposal 3 – with the introductory wording of (1) attaching to each subsection individually, and with the introductory wording of (b) attaching to (1)(b)(i), (1)(b)(ii), and (1)(b)(iii).^[146]  According to the Union, “[e]ach of these [subsections] stands alone because each concerns distinct concepts.”^[147]  Specifically, the Union asserts that:  subsection (1)(a) provides for reassignment to headquarters or application for reassignment to another location; subsection (1)(b)(i) delays an employee’s return to the office, for a specified duration, when their remote duty station is more than fifty miles from their new duty station; (1)(b)(ii) delays an employee’s return to the office, for a specified duration, when their remote duty station is within fifty miles from their new duty station; subsection (1)(b)(iii) allows reporting for work at a different worksite within a different deadline; subsection (1)(c) requires the continued performance of previously assigned duties pending reporting to a new worksite; and subsection (1)(d) states that non-election of reassignment disentitles the employee to severance pay.^[148]

The Agency agrees that the introductory wording of (1) and (b) applies to each subsection, and that – assuming the Authority grants the Union’s severance request – it is unnecessary for the Union to amend Proposal 3 to repeat this wording in each severed subsection.^[149]  However, the Agency contends severance is inappropriate because the listed subsections are “inextricably connected to each other” and do not stand alone.^[150]

The Authority has held that, if a union supports its severance request with an explanation of how each severed portion may stand alone, and operate, then the Authority severs the proposal and rules on the negotiability of its separate components.^[151]  Regarding subsections (1)(a), (1)(c), and (1)(d), the Union explains what each subsection, standing alone, would do, and those subsections’ plain wording supports the Union’s explanations.  For these reasons, we grant the Union’s severance request and separately consider the negotiability of subsections (1)(a), (1)(c), and (1)(d).  Because the Agency does not make any negotiability arguments about subsections (1)(a), (l)(c), and (l)(d) of Proposal 3,^[152] we find those subsections are within the duty to bargain.^[153]

Conversely, we find the Union does not explain how subsection (1)(b)(iii), as currently worded, would operate independently of subsections (1)(b)(i) and (1)(b)(ii).  Subsection (1)(b)(iii) begins with the word “or” and discusses an “other later time.”^[154]  On its face, subsection (1)(b)(iii) is an alternative to the scenarios described in subsections (1)(b)(i) and (1)(b)(ii).  As it is unclear how subsection (1)(b)(iii) would operate independently from the other two subsections in (1)(b), we deny the Union’s request to sever subsection (1)(b)(iii) from Proposal 3.^[155]

Finally, the Union requests to sever subsections (1)(b)(i) and (1)(b)(ii).^[156]  Each of these subsections temporarily precludes the Agency from reassigning employees who terminate their remote‑work agreements to headquarters.  For the reasons discussed above, we find that each of these subsections affect management’s right to assign employees and are not “arrangements” within the meaning of § 7106(b)(3).  Accordingly, even assuming the Union has demonstrated these subsections would operate independently, severing them would not bring them within the duty to bargain.  Therefore, it is unnecessary to grant the Union’s request to sever subsections (1)(b)(i) and (1)(b)(ii).^[157]

VIII.      Proposal 4

A.           Wording

(1) If the Agency makes a determination that the remote work arrangement is negatively impacting the employee’s performance,

(a)    The Agency may pursue a performance improvement plan remotely at the remote work site versus requiring the employee to work at the PBGC’s principal office under the performance improvement plan.

(b)    The periods for performance improvement are outlined in the CBA, Performance Management.

(c)    If the supervisor decides to have the employee to return to the PBGC’s principal office and/or terminates the remote worker agreement, under such circumstances the employee will report to the reassigned official worksite for duty:

                                             (i)     after at least 60 calendar days, but no more than 75 days after the termination effective date for those living and working remotely more than 50 miles outside of the official worksite;

                                            (ii)   after at least 30 calendar days, but no more than 45 days after the termination effective date for those living and working remotely within 50 miles of the official work site,

                                          (iii)   or such other later time as agreed upon with affected employee’s supervisor, from the effective date of the remote worker agreement termination.

(d)    Furthermore, the employee will continue performing assigned duties at the current approved worksite until reporting to the reassigned worksite.

(e)    The employee is not entitled to relocation reimbursement.  If the employee does not accept the reassignment and elects to separate, the employee will not be entitled to severance pay.

(2) If the Agency proposes to discipline an employee, who is on remote work, for their conduct, the Agency will follow the procedures outlined in the CBA, Disciplinary and Adverse Action.  If it is then determined that there is a conduct violation,

(a)    The Agency may terminate the remote work agreement.  Under such circumstances, the employee will report to the reassigned official worksite for duty:

                                           (i)     after at least 60 calendar days, but no more than 75 days after the termination effective date for those living and working remotely more than 50 miles outside of the official worksite;

                                         (ii)     after at least 30 calendar days, but no more than 45 days after the termination effective date for those living and working remotely within 50 miles of the official work site,

                                        (iii)     or such other later time as agreed upon with affected employee’s supervisor, from the effective date of the remote worker agreement termination.

(b)    Furthermore, the employee must continue performing assigned duties at the current approved worksite until reporting to the reassigned worksite.

(c)    The employee is not entitled to relocation reimbursement.  If the employee does not accept the reassignment and elects to separate, the employee will not be entitled to severance pay.^[158]

B.           Meaning

Subsection (1) of Proposal 4 pertains to the consequences of an Agency determination that remote work is “negatively impacting [an] employee’s performance.”^[159]  The parties agree that:  “arrangement” is synonymous with “agreement”;^[160] the procedures for a “performance improvement plan” are set forth in the 2011 CBA;^[161] “‘PBGC’s principal office’ and ‘reassigned official worksite’ both mean headquarters”;^[162] subsections (1)(c)(i), (1)(c)(ii), and (1)(c)(iii) have the same meanings as subsections (1)(b)(i), (1)(b)(ii), and (1)(b)(iii) of Proposal 3, respectively;^[163] subsection (1)(d) has the same meaning as subsection (1)(c) of Proposal 3;^[164] “relocation reimbursement” refers to reimbursements authorized by the FTR, as set forth in Title 41, Chapters 300 to 304 of the Code of Federal Regulations;^[165] and “‘severance pay’ has the meaning set forth in 5 U.S.C. § 5595.”^[166]

Subsection (2) of Proposal 4 concerns the effects discipline may have on an employee’s remote-work agreement.^[167]  The parties agree that:  “‘proposes to discipline’ means that an employee receives a notice of proposed discipline”;^[168] “discipline . . . for their conduct” has the same meaning as in the 2011 CBA;^[169] the date when a “conduct violation” is “determined” is the date that follows the completion of the process in Article 10 of the 2011 CBA;^[170] subsections (2)(a)(i), (2)(a)(ii), and (2)(a)(iii) have the same meanings as subsections (1)(c)(i), (1)(c)(ii), and (1)(c)(iii), respectively;^[171] and subsections (2)(b) and (2)(c) have the same meanings as subsections (1)(d) and (1)(e), respectively.^[172]

C.           Analysis and Conclusions:  Subsections (1)(c)(i)-(ii) and (2)(a)(i)‑(ii) of Proposal 4 are outside the duty to bargain because they excessively interfere with management’s rights to assign employees and assign work.

The Agency argues that subsections (1)(c)(i)-(ii) and (2)(a)(i)-(ii) of Proposal 4 interfere with management’s rights to assign employees and assign work.^[173]  Specifically, the Agency asserts that the disputed subsections affect its right to assign employees by “significantly” delaying its ability to reassign remote workers to different positions at headquarters.^[174]  The Agency also argues that subsections (1)(c)(i)-(ii) and (2)(a)(i)-(ii) affect its right to assign work because they “impos[e] unreasonable delays” on its discretion “to assign necessary work or duties . . . that must be performed at Agency [h]eadquarters.”^[175]  The Agency emphasizes that, after it determines that a remote employee has performance or conduct issues, the Agency is “entitled” to assign that employee work at headquarters so that the Agency “can more effectively monitor and manage such issues” that necessitated the termination of their remote‑work agreement.^[176]  According to the Agency, the disputed subsections would nevertheless “completely bar” it from exercising that management right for an extended period.^[177]  The Agency notes that, “[a]s the Union stated during the [conference],” the Disciplinary and Adverse Action article of the parties’ agreement already provides for “30 days[’] advanced written notice of any proposed adverse action on top of a potential 150-day stay from the date of the decision letter before [an] employee [may] be required to report to . . . [h]eadquarters,” for a total of 180 days.^[178]  The disputed subsections of Proposal 4 would add up to forty‑five days to that total for employees within fifty miles of headquarters, and up to seventy‑five days for employees more than fifty miles from headquarters.^[179]

As stated above, management’s right to assign employees includes the right to make initial assignments to positions, to reassign employees to different positions, and to make temporary assignments or details.^[180]  Similar to Proposal 3, the disputed subsections of Proposal 4 delay when the Agency may require an employee to report to headquarters and, therefore, temporarily prevent the Agency from assigning or reassigning those employees to positions at headquarters.  In fact, subsection (2)(a)(i)-(ii) creates additional delays to management’s ability to exercise its right to assign employees because the Agency cannot terminate the remote-work agreement – and, thus, begin the countdown to return the employee to headquarters – until the Agency has completed the disciplinary process.^[181]  Therefore, the disputed subsections affect management’s right to assign employees.^[182]

The Agency also argues that Proposal 4 affects its right to assign work.^[183]  Management’s right to assign work encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned.^[184]  In some circumstances, a proposal’s or provision’s effect on supervisory methods may implicate the right to assign work because that right includes management’s prerogative to take actions to ensure that the work assigned to employees is accomplished.^[185]  For example, the Authority has found that agency policies requiring employees to report to their supervisor prior to leaving their work area constitute an exercise of management’s right to assign work.^[186]  And the Authority has found that “proposals that, in effect, preclude management from auditing employees’ work by the use of unannounced visits and spot checking of employees’ work directly affect management’s right[] . . . to assign work.”^[187]

In addition, the Authority has held that proposals or provisions addressing where employees perform their duties affect the right to assign work if an agency establishes a relationship – or “nexus” – between the employees’ job locations and their duties.^[188]  In NTEU, the Authority found that discretion over the frequency of telework is inherently part of the management right to assign work.^[189]  Accordingly, the Authority in NTEU found that a proposal concerning expanded telework eligibility affected the right to assign work without examining whether a nexus existed between employees’ duties and job location.^[190]  Subsequently, the U.S. Court of Appeals for the D.C. Circuit vacated NTEU without addressing whether the Authority applied the correct legal standard concerning telework’s effect on the right to assign work.^[191]  Because the parties in NTEU later settled their negotiability dispute, the Authority did not further address whether agencies must demonstrate a nexus between in‑person work and job duties in order to establish a telework proposal’s effect on management’s right to assign work.

In NTEU, Chapter 296 & 336 (Chapter 296), the Authority found it unnecessary to resolve that issue because, although the proposal concerned the frequency of telework, “the [a]gency ha[d] adequately demonstrated that at least some [a]gency employees’ job duties ha[d] a relationship to their job locations.”^[192]  Thus, regardless of whether the “nexus” requirement applied, the proposal affected the right to assign work.^[193]

Here, Proposal 4 implicates management’s ability to “hold[] employees accountable for the performance of their work”^[194] and “ensure that the work assigned to employees is accomplished.”^[195]  Subsections (1)(c)(i)-(ii) and (2)(a)(i)‑(ii) only come into play after the Agency has determined that “the remote[‑]work arrangement is negatively impacting the employee’s performance” or “that there is a conduct violation,” respectively.^[196]  Thus, regardless of the particular job duties at issue, these subsections apply only when the Agency has concluded that in‑person supervision or auditing of the employee is necessitated by poor performance or misconduct.  Because these employees cannot perform work remotely at a satisfactory performance level or without creating misconduct concerns, we find that the Agency has established a direct relationship, or “nexus,” between the employees’ job duties and the location of their work.  And because the subsections expressly prevent the Agency from addressing these identified performance or conduct concerns using its chosen supervisory methods for the prescribed periods, the proposal prevents the Agency from taking action to ensure the work assigned to employees is properly accomplished.^[197]

Like in Chapter 296, because we find the Agency has demonstrated a nexus between the employees’ job duties and their job locations, we do not find it necessary to address whether a nexus between job duties and job location is required in order for proposals concerning the frequency of telework to affect the right to assign work, or whether the frequency of telework is inherently part of the right to assign work.^[198]  Regardless of which principle we apply, we find that subsections (1)(c)(i)‑(ii) and (2)(a)(i)‑(ii) affect the right to assign work.^[199]

Incorporating by reference arguments it made for Proposal 2, the Union challenges the Agency’s contention that Proposal 4 affects the Agency’s management rights under § 7106(a)(2) of the Statute.  According to the Union, Proposal 4 merely ameliorates the effect that cancelling a remote-work agreement may have on an employee.^[200]  However, the Union does not address the ways in which Proposal 4 is materially different from Proposal 2.^[201]  Proposal 2 generally provides transition periods following Agency-initiated termination of remote work based on either Agency‑determined business needs, or an employee’s refusal to accept an Agency‑initiated change to a remote‑work agreement.  Proposal 4, by contrast, applies only when the Agency has identified employee‑specific performance or conduct concerns and seeks to recall the affected employee in response to those concerns.  The Union does not address the ways that Proposal 4 would prevent the Agency, for specified periods, from recalling an employee when the Agency determines that in‑person work or supervision is necessary due to performance or conduct concerns.^[202]  Because Proposal 4 substantially delays the Agency’s ability to reassign employees when the Agency determines that reassignment is necessary to address performance or conduct concerns, we find the Union’s argument – that Proposal 4 has no effect on management’s rights – unpersuasive.

The Union also argues that Proposal 4 is within the duty to bargain, regardless of its effects on management rights.^[203]  Referring to its earlier arguments concerning Proposal 3,^[204] the Union contends that Proposal 4 is negotiable because it requires the Agency to comply with an applicable law, § 706(2)(A), within the meaning of § 7106(a)(2) of the Statute.^[205]  However, Proposals 3 and 4 concern similar issues, namely, a delay in the date an employee is required to return to in‑person work following the termination of a remote‑work agreement.^[206]  As discussed above, even assuming § 706(2)(A) applies here, the Union does not cite any authority establishing that § 706(2)(A) requires the Agency to provide employees the specified periods before requiring them to report to headquarters.^[207]  Therefore, the Union’s arguments in this regard do not demonstrate that subsections (1)(c)(i)-(ii) and (2)(a)(i)-(ii) of Proposal 4 enforce an applicable law within the meaning of § 7106(a)(2) of the Statute.

The Union also asserts subsections (1)(c)(i)-(ii) and (2)(a)(i)-(ii) of Proposal 4 are enforceable “appropriate arrangements” under § 7106(b)(3) of the Statute.^[208]  As noted above, to determine whether a proposal is an appropriate arrangement, the Authority applies the two-pronged test established in KANG.^[209]  First, the Authority determines whether the proposal is intended to be an “arrangement” for employees adversely affected by the exercise of the relevant management right.^[210]  If the proposal is an arrangement, then, under the second prong of the KANG test, the Authority determines whether the arrangement is “appropriate” because it does not excessively interfere with the relevant management right.^[211]  The Authority makes that determination by weighing the benefits afforded to employees under the arrangement against the proposal’s burden on the exercise of management’s rights.^[212]

The parties dispute whether the proposal is an arrangement.^[213]  However, we assume, without deciding, the proposal is an arrangement because we find it is not appropriate for the following reasons.^[214]

As with Proposal 2, the Union argues that Proposal 4 benefits employees by giving them transition time for personal arrangements and possible relocation before reporting to headquarters.^[215]  The Union also argues that the directive already acknowledges that employees need substantial time to report to headquarters after the Agency terminates a remote-work agreement.^[216]  Like Proposal 2, Proposal 4 would provide significant benefits to employees.

However, Proposal 4 burdens the Agency’s management rights in a manner that is materially different, and much greater, than any burdens imposed by Proposal 2.  Unlike Proposal 2, Proposal 4 applies only after the Agency has identified performance or conduct concerns with a remote-working employee, and has determined that the employee’s continued remote‑work arrangement is no longer appropriate because of those performance deficiencies or misconduct.  Despite that determination, the disputed subsections of Proposal 4 would require the Agency to allow the employee to continue working remotely for the specified periods after terminating the remote-work agreement.  In a situation where management has found performance deficiencies or misconduct, the periods specified in the proposal – seventy-five days for employees more than fifty miles from headquarters, and forty-five days for employees more than fifty miles from headquarters – substantially burden management’s rights to assign employees and assign work.  During those periods, the Agency could not assign or reassign the employee to a position at headquarters, or assign the employee duties that must be performed in person at headquarters, even where management has determined that there is an urgent need for closer, in-person supervision of the employee.  Further, according to the Agency, at least in some circumstances, the seventy‑five-day or forty-five-day delay would be in addition to the lengthy periods of time established in the Disciplinary and Adverse Action article of the parties’ agreement.^[217]  For these reasons, we find that Proposal 4 significantly burdens the Agency’s management rights to assign work and assign employees.^[218]

In short, the disputed subsections of Proposal 4 do not merely provide employees with transition time after a change in work location; they require the Agency to maintain a remote-work arrangement, potentially for a substantial period of time, even after the Agency has determined that conduct or performance issues require the employee’s return to headquarters.  Although increased transition time for affected employees is a significant benefit to those employees, we find that the Agency’s need to promptly address performance and conduct issues through in‑person supervision, reassignment, or the assignment of headquarters-based duties outweighs the benefits to employees.^[219]

Accordingly, even assuming Proposal 4 is an arrangement, we find it is not appropriate because the disputed subsections excessively interfere with the Agency’s rights to assign employees and assign work.^[220]  For the above reasons, we find subsections (1)(c)(i)-(ii) and (2)(a)(i)-(ii) of Proposal 4 are outside the duty to bargain.^[221]  We address the Union’s severance request below.

D.           Severance

As stated above, § 2424.2(h) of the Authority’s Regulations states that “[s]everance applies when some parts of the proposal or provision are determined to be outside the duty to bargain.”^[222]  Accordingly, we now consider the Union’s severance request because we have found that subsections (1)(c)(i)-(ii) and (2)(a)(i)-(ii) of Proposal 4 are outside the duty to bargain.

The Union requests to sever subsections (1)(a), (1)(b), (1)(c)(i), (1)(c)(ii), (1)(c)(iii), (1)(d), and (1)(e) of Proposal 4, with the introductory wording of (1) attaching to each subsection individually, and with the introductory wording of (c) attaching individually to subsections (1)(c)(i), (1)(c)(ii), and (1)(c)(iii).^[223]  The Union also requests to sever subsections (2)(a), (2)(a)(i), (2)(a)(ii), (2)(a)(iii), (2)(b), and (2)(c) of Proposal 4, with the introductory wording of (2) attaching to each subsection individually, and with the introductory wording of (a) attaching individually to subsections (2)(a)(i), (2)(a)(ii), and (2)(a)(iii).^[224]  Section 2424.25(d) of the Authority’s Regulations states that “[t]o accomplish severance, the exclusive representative must identify the proposal or provision that the exclusive representative is severing and set forth the exact wording of the newly severed portion(s).”^[225]  It further states, “The exclusive representative must support its [severance] request with an explanation of how the severed portion(s) . . . may stand alone, and how [the] severed portion(s) would operate.”^[226]

At the conference, the Union asserted “these thirteen severed parts would have independent meaning and stand alone.”^[227]  While the Union was directed at the conference to further explain its severance request for Proposal 4 in its response,^[228] its response does not address how any severed portion would stand alone or operate.^[229]  Rather, it appears that the Union mistakenly copied subsections of Proposal 3, for which it previously requested severance, into its severance request for Proposal 4.^[230]  Further, in its explanation for how each severed portion would operate and stand alone, the Union’s response also refers to subsections of Proposal 3.^[231]  Accordingly, because the Union’s severance request for Proposal 4 does not explain how each severed section would operate and stand alone with independent meaning, it fails to comply with the Authority’s Regulations, and we deny the request.^[232]  Because we deny the Union’s request for severance, we find Proposal 4 is outside the duty to bargain in its entirety.^[233]

IX.         Order

We direct the Agency to bargain over Proposals 1, 2, and subsections (1)(a), (1)(c), and (1)(d) of Proposal 3.  In finding those proposals and subsections within the duty to bargain, we make no judgment as to their merits.^[234]  We dismiss the petition with respect to Proposal 4 and subsection (1)(b) of Proposal 3.

Member Wagner, concurring:

As I have previously stated, in my view, a party arguing that a proposal or provision addressing employees’ job locations affects management’s right to assign work under § 7106(a)(2)(B) of the Federal Service Labor-Management Relations Statute (the Statute)^[235] has the burden of demonstrating a relationship between the employees’ job locations and their job duties.^[236]  For the reasons stated in today’s decision, I agree that the Agency has satisfied that burden with regard to Proposal 4, and that the proposal is not a negotiable appropriate arrangement under § 7106(b)(3) of the Statute.^[237]  Therefore, I agree that Proposal 4 is outside the duty to bargain.  And I agree with the decision in all other respects.

Accordingly, I concur.