An arbitrator ordered the Environmental Protection Agency (EPA) Region 1 in Boston to allow an employee to work remotely after the agency unreasonably denied her remote work request.
The employee is an environmental protection assistant who has been working for the EPA for 30 years and has an excellent work record both before and during the pandemic with her supervisor giving her the highest or second-highest rating in each of the critical elements of her job.
When Covid came in March 2020, the EPA shut down its offices. It was during this time that AFGE and the agency negotiated the remote work and telework articles to reflect OPM's guidance, which superseded the previous interim agreement on remote work and telework. For remote work, eligible employees don’t have to report to the office. For telework, employees report to the office twice a pay period.
After the EPA reopened in the spring of 2022, the employee applied for remote work, but her supervisor denied her request, extensively citing her desire to have the employee come in and print out copies of reports. The supervisor’s denial of her request was confirmed by the deputy regional administrator’s decision which relied heavily on the supervisor’s comments and outdated job description that doesn’t reflect the employee’s real tasks and duties.
AFGE Local 3428 took the employee’s case to arbitration, arguing that the agency violated the remote work/telework agreement, which required that the decision to approve or deny an application be based on job functions and not managerial preference. The supervisor’s desire not to use digital copies of reports but instead to have the employee in the office to print hard copies for her, for example, was management preference. The supervisor’s preference for hard copies also conflicts with the agency’s goal of going paperless.
“It is undisputed that the grievant has successfully accomplished her job duties, which are 95% programmatic, while working remotely. She has been equally effective in handling administrative tasks such as payroll, including training new employees on the timekeeping system and responding to their questions and problems,” the local argued. “The grievant’s in-person presence is not needed to show new employees the location of supplies and equipment; that naturally occurs with coworkers….Many of the Agency’s asserted justifications are no more than ‘managerial preference,’ which the RWA expressly excludes as a basis for denying an application for Remote Work.”
In a Feb. 21 decision, the arbitrator agreed with AFGE, reiterating the fact that the agreement shows that both sides value remote work and telework with a long list of benefits to the environment (less traffic, pollution, carbon footprint), agency (retention of talent and institutional knowledge, enhanced recruitment tool), employees (improved morale, work-life balance), and the public they serve (improved emergency preparedness).
“In sum, the Agency unreasonably denied the grievant’s application for Remote Work under the RWA by relying on her PD, rather than the actual job duties she performs; by basing its decision in part on managerial preference; by reaching conclusions that were contrary to fact or had no factual basis; and by taking into account future job duties that were not “likely.” It thereby violated the RWA," said the arbitrator.
Local 3428 welcomes the good news.
“At the legislative conference our council was pushing as a council to have EPA see remote work/full-time telework more as a recruitment and retention tool rather than an impediment to the mission, and to consider advertising more remote work positions and approving more existing employees for remote work in order to sustainably staff the agency,” said AFGE Local 3428 President Undine Kipka who is also first vice president of AFGE Council 238 representing 7,700 EPA employees across the country.
“The decisions to approve or disapprove remote work requests should be based on job functions and not managerial preference, and we've heard that folks who were denied remote work have gotten frustrated and retired or found other jobs because managerial preference seemed to win out.”
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