National Treasury Employees Union v. FLRA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2021 Decided June 22, 2021
No. 20-1148
NATIONAL TREASURY EMPLOYEES UNION,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of an Order
of the Federal Labor Relations Authority
Paras N. Shah argued the cause for petitioner. With him
on the briefs were Gregory O’Duden and Julie M. Wilson.
Noah Peters, Solicitor, Federal Labor Relations Authority,
argued the cause for respondent. With him on the brief were
Rebecca J. Osborne, Deputy Solicitor, and Sarah C.
Blackadar, Attorney.
Before: HENDERSON, PILLARD and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The Federal
Service Labor-Management Relations Statute (FSLMRS or
Statute), 5 U.S.C. §§ 7101 et seq., requires federal agencies to
2
bargain with unions over bargaining unit employees’
conditions of employment. The duty to bargain is subject to
several statutory exceptions, however, including
management’s right to assign work and management’s right to
direct employees. During negotiations over a new collective
bargaining agreement (CBA), the United States Department of
Agriculture Food and Nutrition Service (FNS) declared that the
number of days that an employee was permitted to telework
was non-negotiable. The National Treasury Employees Union
(NTEU or Union) disagreed and filed a negotiability petition
with the Federal Labor Relations Authority (FLRA). In a 2–1
decision, the FLRA found the Union’s proposed telework
provision was outside the duty to bargain because it affects
management’s right to assign work under § 7106(a)(2)(B) and
management’s right to direct employees under
§ 7106(a)(2)(A).
The Union now petitions for review. Because the FLRA
failed to address adequately the relevant telework-eligibility
and management-discretion provisions in the proposed CBA,
we grant the petition—concluding that the FLRA’s decision
was arbitrary—and remand to the FLRA.
I. BACKGROUND
A. The Statute
“The FSLMRS requires a federal agency to negotiate in
good faith with the chosen representative of employees covered
by the Statute, 5 U.S.C. § 7114(a)(4), and makes it an unfair
labor practice to refuse to do so, § 7116(a)(5).” Fort Stewart
Schs. v. FLRA, 495 U.S. 641, 644 (1990). Section 7102
establishes the duty to bargain’s scope; covered employees
have the right “to engage in collective bargaining with respect
to conditions of employment.” 5 U.S.C. § 7102(2). The Statute
in turn defines “conditions of employment” broadly as
3
“personnel policies, practices, and matters, whether established
by rule, regulation, or otherwise, affecting working
conditions . . . .” Id. § 7103(a)(14). Several exceptions,
however, limit the “expansive duty to bargain.” Library of
Congress v. FLRA, 699 F.2d 1280, 1284 n.16 (D.C. Cir. 1983).
The Statute’s “management rights” provision, 5 U.S.C. § 7106,
is such an exception—its applicability means that “a proposal
calling for negotiation over exercise of one or more of the
management rights enumerated in Section 7106(a) . . . is not
within the employing agency’s duty to bargain.” Nat’l
Treasury Emps. Union v. FLRA, 691 F.2d 553, 555 (D.C. Cir.
1982). As relevant here, a proposal that affects management’s
right to assign work or management’s right to direct employees
is non-negotiable. See 5 U.S.C. § 7106(a)(2)(A), (B).
B. Facts and Procedure
The NTEU is the exclusive representative of the FNS’s
bargaining unit employees. Under the existing CBA between
NTEU and FNS,1 an eligible bargaining unit employee is
permitted “a maximum of six days of telework out of
ten . . . where the relevant supervisor determines that telework
will not interfere with the accomplishment of work.” Joint
Appendix (J.A.) 58 (Agency’s Statement of Position on
Petition for Review). The existing CBA includes several
eligibility requirements an employee must meet in order to
participate in the telework program.
During negotiations over a new CBA, the Union and the
FNS exchanged several proposals regarding the CBA’s
telework provision, Article 20. The FNS’s initial proposal
maintained the status quo regarding the frequency of
1
Negotiations over a new CBA began on June 22, 2017.
4
telework—a maximum of six days out of ten. 2 In its proposals
dated June 22 and August 16, 2017, the Union requested
expanding the telework provision to allow certain eligible
employees to telework up to a full-time basis. On March 6,
2018, the FNS modified its proposal, reducing the maximum
number of telework days from six to two days out of ten and,
on April 18, 2018, it informed the Union that it believed the
frequency of telework was non-negotiable pursuant to 5 U.S.C.
§ 7106.3 On May 4, 2018, the Union responded that it disagreed
with the FNS’s position that the frequency of telework was
non-negotiable and sent a revised proposal (Proposal) that
would allow an eligible employee to telework a maximum of
eight days out of ten.
The Union’s Proposal provides in Article 20, Section
20.06(2):
(2) Employees must be in the office a minimum
of one (1) workday each week and a
minimum of eight (8) hours each work day,
taking into consideration telework and
alternative schedule arrangements. In order
to telework more than six (6) days per pay
period (i.e., expanded), an employee must
proceed as follows:
2
Six days out of ten corresponds to a maximum of three days of
telework per week. The ten-day timeframe refers to the standard ten-
workday bi-weekly pay period.
3
The FNS asserted that U.S. Department of Agriculture
Departmental Regulation 4080-811-02, which issued on January 4,
2018, limited the number of days an employee could telework to two
out of ten. The FLRA did not address this argument in its decision.
See Nat’l Treasury Emps. Union, 71 F.L.R.A. 703, 708 n.49 (2020).
5
(a) Regular Telework: Employees who
telework six (6) days or fewer per pay
period must be in the office a minimum
of two (2) workdays each week and a
minimum of eight (8) hours each work
day, taking into consideration telework
and alternative schedule arrangements.
The eligibility requirements for regular
telework are contained in Sections 20.02
and 20.03 above.
(b) Expanded Telework: Eligibility for
expanded telework (i.e., seven (7) to
eight (8) days per pay period or the
equivalent for an alternate work
schedule) will be based on the employee
meeting the following criteria:
(i) The employee has teleworked at
least six (6) days per pay period (or
the equivalent for an alternate work
schedule) for a year; and
(ii) The employee has not had any
performance (i.e., a performance
improvement plan) or disciplinary
issues over the same period;
6
(d) Employee requests for expanded
telework will not be unreasonably
denied.
Nat’l Treasury Emps. Union, 71 F.L.R.A. 703, 703–04 (2020)
(emphases added).4
The Union requested a written declaration of non-
negotiability from the FNS regarding the Proposal and, when
the FNS did not respond, the Union filed a negotiability
petition with the FLRA pursuant to § 7105(a)(2)(E). See 5
U.S.C. §§ 7105(a)(2)(E), 7117(c). At the post-petition
conference, the Union and the FNS agreed that the Proposal
“would allow eligible employees to telework seven or eight
days per pay period,” subject to management’s “discretion to
deny an employee’s telework request consistent with the
parties’ agreement.” Nat’l Treasury Emps. Union, 71 F.L.R.A.
at 704.
In a 2–1 decision, the FLRA concluded the Proposal falls
outside the FNS’s statutory duty to bargain. 5 Specifically, it
found the Proposal affects management’s right to assign work
under § 7106(a)(2)(B) and management’s right to direct
employees under § 7106(a)(2)(A).
4
The Proposal does not include a subsection (c) because the
Union withdrew it before filing its petition with the FLRA. See Nat’l
Treasury Emps. Union, 71 F.L.R.A. at 704 n.9. The Proposal also
has a subsection (e) but the Union did not include subsection (e) in
its petition.
5
The FLRA unanimously concluded that the Telework
Enhancement Act of 2010, 5 U.S.C. §§ 6501 et seq., does not provide
the FNS with sole and exclusive discretion to establish telework
frequency, separate and apart from the FNS’s management rights
claims. The FNS has not petitioned for review of that portion of the
FLRA’s decision.
7
First, the FLRA “determine[d] that the frequency of
telework—the ‘when’ an eligible employee may perform his or
her duties away from the duty station and ‘when’ that eligible
employee must report to the duty station—is inherent to
management’s right to assign work” under § 7106(a)(2)(B). Id.
at 706. It concluded that its precedent established that
management’s right to assign work included “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.” Id. Relying primarily on two of its
precedents involving management’s right to determine the
hours and days of each work week and management’s right to
assign overtime,6 the FLRA extrapolated that “the right to
assign work must also include the right to determine ‘when’ an
employee is required to report to the duty station to fulfill his
or her duties, here, the frequency of telework.” Id. at 707.
Accordingly, the FLRA concluded “[b]ecause this [P]roposal
establishes that a telework-eligible employee could report to
the duty station as little as one day per week, the [P]roposal
affects management’s right to assign work. We will no longer
follow cases holding otherwise.”7 Id.
Second, the FLRA concluded that the Proposal affects
management’s right to direct employees under
6
See Nat’l Treasury Emps. Union, 71 F.L.R.A. at 707 & nn.32–
33 (discussing Int’l Ass’n of Fire Fighters, 59 F.L.R.A. 832, 833–34
(2004) and Pro. Airways Sys. Specialists, 59 F.L.R.A. 485, 487–88
(2003)).
7
The FLRA majority identified two FLRA cases holding
otherwise but provided no further elaboration: (1) U.S. HHS, Ctrs.
for Medicare & Medicaid Servs. Balt., Md., 57 F.L.R.A. 704, 707
(2002) (award enforcing CBA’s telework provision did not affect
management’s right to assign work) and (2) U.S. FDA, Detroit Dist.,
59 F.L.R.A. 679, 682–83 (2004) (same). See Nat’l Treasury Emps.
Union, 71 F.L.R.A. at 707 n.35.
8
§ 7106(a)(2)(A). The FLRA found it “ha[d] not previously
addressed whether a proposal concerning the frequency of
telework affects the right to direct employees under
§ 7106(a)(2)(A).” Id. But it concluded the Proposal “imposes
substantive restraints on management’s ‘right to determine the
methods used to evaluate and supervise its employees,’” a right
the FLRA had previously determined outside the duty to
bargain because it affects management’s right to direct
employees. Id. (quoting Am. Fed’n of Gov’t Emps., Local 1712,
62 F.L.R.A. 15, 17 (2007)).
One member dissented in part, concluding the Proposal
was negotiable because it does not affect management’s right
to assign work or to direct employees under § 7106(a)(2). The
dissent found the majority’s decision flawed for three reasons:
(1) it “fundamentally misinterpret[ed] the Union’s [P]roposal;”
(2) it “discard[ed] governing Authority precedent in favor of
decisions that have little relevance to the [P]roposal;” and (3)
it relied on an argument the FNS never raised. Id. at 709
(DuBester, Member, dissenting in part).
First, the dissent concluded that the majority
mischaracterized the Proposal by ignoring the criteria on which
the FNS may deny a telework request, as enumerated in
Sections 20.02 (Eligibility for Telework), 8 20.03 (Requests for
8
Section 20.02(1)(a) provides that an employee’s position is
ineligible for telework if: “(i) Duties require the employee’s physical
presence to perform particular tasks that can only be performed at the
traditional worksite on a daily basis; (ii) Duties require the
employee’s daily presence at the traditional worksite for contact with
the public or co-workers; (iii) Duties require the employee’s daily
use of specialized equipment located only at the traditional worksite;
or (iv) Duties require the employee’s daily handling of classified
materials.” J.A. 111. Moreover, Section 20.02(1)(b) provides that an
employee is ineligible for telework if: “(i) The employee’s most
9
Telework)9 and 20.06 (Other Considerations for Approval of
Telework Request).10 Id. Most importantly in the dissent’s
view, subsections 20.06(1) and (3) clarified that the approval
of an employee’s request for telework was subject to the FNS’s
ability to accomplish its work and, even after initial approval,
it reserved the right to change an employee’s telework schedule
as “necessary for the [FNS] to accomplish its work.” Id.
(quoting Section 20.06(3)).
recent summary performance rating is less than Fully Successful; (ii)
The employee has been officially disciplined for viewing,
downloading, or exchanging pornography, including child
pornography, from a government computer or while performing
official Federal Government duties, in accordance with the Telework
Enhancement Act; (iii) The employee has been officially disciplined
for being absent without permission (AWOL) for more than five (5)
days in any calendar year, pursuant to the Telework Enhancement
Act; or (iv) The employee is currently on a Performance
Improvement Plan (PIP).” Id.
9
Section 20.03(2) provides that a “supervisor may approve an
eligible employee’s request for telework” if the employee (1)
“[p]ossesses a reasonable level of experience in the current job;” (2)
“[p]ossesses the ability to perform successfully in the telework
arrangement;” and (3) “[h]as defined work that can be measured or
otherwise evaluated in terms of timeliness, quality and/or quantity.”
J.A. 111–12.
10
Section 20.06(1) provides that “[a]ll telework arrangements
are subject to prior supervisory approval. The approval or
disapproval of an employee’s request for telework will be based upon
whether the approval of the telework request will interfere with the
[FNS]’s ability to accomplish its work. Decisions will be made on a
case-by-case basis.” J.A. 113. Section 20.06(3) provides that “once
a telework request is approved, the [FNS] reserves the right to make
changes in an employee’s telework schedule, if it is determined that
a change in an employee’s telework schedule is necessary for the
[FNS] to accomplish its work.” J.A. 114.
10
Second, the dissent concluded that the majority’s
mischaracterization of the Proposal had significant
implications because the FLRA had “previously found that a
proposal merely establishing eligibility requirements for
telework does not affect management’s rights to ‘assign and
direct employees.’” Id. at 710 (quoting Nat’l Ass’n of Gov’t
Emps., Local R1-144, 65 F.L.R.A. 552, 555 (2011)). Moreover,
the dissent found that “the cases cited by the majority to
support th[e] conclusion [that the Proposal affects the FNS’s
right to assign work] bear no relevance to the [P]roposal before
us.” Id. (footnote omitted).
Third, the dissent maintained that the “majority’s
conclusion that the [P]roposal affects the [FNS]’s right to direct
employees under § 7106(a)(2)(A) [wa]s equally flawed”
because “the [FNS] never raised the arguments upon which the
majority relie[d] to find that the Union’s [P]roposal affects its
right to direct employees.” Id. at 711. The dissent also found
the FLRA decisions on which the majority relied were
inapposite.
The Union timely petitioned for review of the FLRA’s
decision.
II. ANALYSIS
In its 2–1 decision, the FLRA concluded that the Proposal
“dictates to management how often the [FNS] can require an
employee to perform work at the duty station” and “precludes”
management from using certain methods of employee
supervision. Nat’l Treasury Emps. Union, 71 F.L.R.A. at 707
(emphasis omitted). But, as the Union points out, this
interpretation “conflicts with the [P]roposal’s plain terms,
related provisions of the [CBA], and NTEU and FNS’s shared
understanding of the [P]roposal.” Pet’r’s Br. 25. Because the
FLRA majority failed to address the specific proposed CBA
11
provisions related to telework eligibility and FNS management
discretion, its decision—that the Proposal affects
management’s rights to assign work and to direct employees
and therefore falls outside the duty to bargain—was not
reasonably explained.
First, we have jurisdiction to consider the Union’s
argument that the FLRA misinterpreted the Proposal. See 5
U.S.C. § 7123(a). Section 7123(c) of the FSLMRS provides
that “[n]o objection that has not been urged before the
Authority, or its designee, shall be considered by the court,
unless the failure or neglect to urge the objection is excused
because of extraordinary circumstances.” Id. § 7123(c). “We
have enforced section 7123(c) strictly, recognizing that if a
party were permitted to raise an argument for the first time in
its petition for review, ‘the initial adjudicatory role Congress
gave to the Authority would be transferred in large measure to
this court, in plain departure from the statutory plan.’” Nat’l
Treasury Emps. Union v. FLRA, 754 F.3d 1031, 1040 (D.C.
Cir. 2014) (quoting Dep’t of Treasury v. FLRA, 707 F.2d 574,
580 (D.C. Cir. 1983)). But “[a] party is not required to invoke
‘magic words’ in order to adequately raise an argument before
the Authority.” Id. (quoting U.S. Dep’t of Com. v. FLRA, 672
F.3d 1095, 1102 (D.C. Cir. 2012)). “Instead, an argument is
preserved if the party has ‘fairly brought’ the argument ‘to the
Authority’s attention.’” Id. (quoting U.S. Dep’t of Com. v.
FLRA, 7 F.3d 243, 245 (D.C. Cir. 1993)).
The Union’s interpretation of the Proposal was adequately
raised before the FLRA. In its brief before the FLRA, the
Union stated it “readily admits that there is no guarantee that
an employee will be granted telework under the [CBA], as an
employee must satisfy all the existing eligibility standards in
Sections 20.02, 20.03, and 20.06(1).” J.A. 170 n.5 (Union’s
Response to Agency’s Statement of Position). As noted,
12
however, the FLRA majority interpreted the Proposal to
“dictate[] to management how often the [FNS] can require an
employee to perform work at the duty station.” Nat’l Treasury
Emps. Union, 71 F.L.R.A. at 707. The FLRA’s characterization
of the Proposal as a “presumptive entitlement” to telework that
“dictates to management” telework frequency conflicts with
the Union’s explanation that the Proposal provides “no
guarantee” of telework to any employee. See id. at 704 n.11,
707; J.A. 170 n.5. Accordingly, the Union’s misinterpretation
argument is properly before us.11
We review FLRA decisions in accordance with the
Administrative Procedure Act’s judicial review provision. See
5 U.S.C. § 7123(c). Accordingly, “we uphold [the FLRA’s]
determinations unless they are ‘arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.’” Am.
Fed’n of Gov’t Emps., Local 2343 v. FLRA, 144 F.3d 85, 88
(D.C. Cir. 1998) (quoting 5 U.S.C. § 706(2)(A)). “Under the
arbitrary and capricious standard of review, we must ensure
that the Authority ‘examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action including
a rational connection between the facts found and the choice
made.’” Am. Fed’n of Gov’t Emps., Local 1929 v. FLRA, 961
F.3d 452, 456 (D.C. Cir. 2020) (alterations in original) (quoting
Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir.
2017)). “Put differently, to survive arbitrary and capricious
review, the Authority must show that it engaged in reasoned
decisionmaking and that its decision was reasonable and
11
Although we ordered supplemental briefing to address
“whether the court has jurisdiction to consider [all] the arguments
raised in the petition for judicial review,” Order, Nat’l Treasury
Emps. Union v. FLRA, No. 20-1148 (D.C. Cir. Feb. 12, 2021), we do
not reach whether we have jurisdiction of the Union’s other
arguments because we grant the petition based on the FLRA’s
inadequate explanation for its interpretation of the Proposal.
13
reasonably explained.” Id. (internal quotations and citations
omitted).
A careful review of the Proposal and related CBA
provisions makes plain that the FLRA did not reasonably
explain how its interpretation of the Proposal—that it “dictates
to management how often the [FNS] can require an employee
to perform work at the duty station”—follows from the
proposed CBA’s text and structure. Nat’l Treasury Emps.
Union, 71 F.L.R.A. at 707. Specifically, the FLRA failed to
address the proposed CBA provisions limiting telework
eligibility and maintaining management discretion to deny a
telework request. Rather than explain how the proposed CBA’s
text and structure were consistent with its interpretation of the
Proposal, the FLRA majority made no mention of these CBA
provisions. Nor did it discuss whether its management rights
analysis applied equally to “expanded telework” in Section
20.06(2)(b) and “regular telework” in Section 20.06(2)(a).
To receive approval for “[a]ll telework arrangements,” an
employee must get “prior supervisory approval.” J.A. 113
(Section 20.06(1)) (emphasis added). Supervisory approval is
based on whether the telework request “interfere[s] with the
[FNS]’s ability to accomplish its work.” Id. In other words,
supervisors have the discretion to deny a telework request if
they determine the request negatively affects the FNS’s work.
In addition, the proposed CBA limits an employee’s
eligibility for telework in Sections 20.02 and 20.03, as stated
explicitly in Section 20.06(2)(a). Telework eligibility
requirements include: (1) whether the employee’s physical
presence is required either for contact with the public or co-
workers or to perform particular tasks; (2) whether the
employee has sufficient experience on the job; and (3) whether
the employee’s work can be evaluated for timeliness, quality
14
and/or quantity. See J.A. 110–12 (Section 20.02(1)(a)(i), (ii);
Section 20.03(2)(a), (c)).12 Moreover, to be eligible to apply for
“expanded telework,” the employee must have already
received FNS approval to “telework[] at least six (6) days per
pay period . . . for a year,” i.e., the maximum amount allowed
pursuant to “regular telework,” and have had no “performance
. . . or disciplinary issues over the same period.” J.A. 114
(Section 20.06(2)(b)(i)–(ii)).
Finally, the FNS has the authority “to make changes in an
employee’s telework schedule, if it is . . . necessary for the
[FNS] to accomplish its work.” J.A. 114 (Section 20.06(3)); see
also J.A. 118 (Section 20.07(8)) (“Supervisors may modify or
terminate an employee’s Telework Agreement whenever the
employee no longer meets the criteria outlined in this Article,
does not conform to the terms of the Telework Agreement, or
when the arrangement no longer supports the [FNS]’s
mission.”). Thus, in addition to its discretion to deny a telework
request, the FNS can revoke or alter an employee’s telework
schedule.
In its decision, however, the FLRA majority never
addressed the discretion afforded FNS management or the
various telework-eligibility requirements embedded in the
proposed CBA. It referenced the text of the Proposal only in a
single footnote which, in its entirety, reads:
The dissent reads the [P]roposal as though it
merely sets forth minimum requirements for
telework, while allowing supervisors unlimited
discretion to deny telework requests from
eligible employees. But that reading cannot be
12
See also J.A. 112 (Section 20.03(4)) (“Situations appropriate
for telework depend on the specific nature and content of the job,
rather than just the job series and title.”).
15
squared with the [P]roposal’s plain wording,
which creates a presumptive entitlement to 80%
telework for employees who have teleworked at
least six days per pay period the previous year
and have “not had any performance (i.e., a
performance improvement plan) or disciplinary
issues over the same period.” The [P]roposal
creates a strong presumption that all such
requests will be granted by mandating that
telework requests from eligible employees will
not be “unreasonably denied.” In practice, this
means that any manager who denies 80%
telework to an eligible employee can expect to
face a grievance alleging that the denial was
unreasonable.
Nat’l Treasury Emps. Union, 71 F.L.R.A. at 704 n.11
(emphasis added) (citations omitted). Notably absent from the
FLRA majority’s decision is any discussion of both the specific
telework-eligibility requirements set forth in Sections 20.02
and 20.03 and the FNS’s case-by-case discretion regarding
employee telework requests set forth in Sections 20.06(1) and
20.06(3). Nor does the FLRA majority explain how those
proposed CBA provisions can be squared with its
categorization of the Proposal as a “presumptive entitlement”
to telework four days a week.
On appeal, the FLRA seeks to deflect the Union’s
misinterpretation argument by focusing on Section
20.06(2)(d). It asserts that “the Proposal would make it
extremely difficult, if not impossible, for managers to require
‘eligible employees’ to work in the office more than one day
per week” because Section 20.06(2)(d) “states that ‘[e]mployee
requests for expanded telework will not be unreasonably
denied.’” Resp’t’s Br. 23 (alteration in original) (quoting Nat’l
16
Treasury Emps. Union, 71 F.L.R.A. at 704). But the FLRA
majority did not focus on Section 20.06(2)(d) in its decision; it
noted the provision only briefly in the footnote discussed
supra.
It is well-settled that the “grounds upon which an
administrative order must be judged are those upon which the
record discloses that its action was based.” SEC v. Chenery
Corp., 318 U.S. 80, 87 (1943). The record does not support the
conclusion that the FLRA relied on Section 20.06(2)(d) to
conclude that the Proposal affects management’s right to assign
work and management’s right to direct employees. Instead, the
FLRA majority referred to the working condition at issue as
“the frequency of telework” without adequately assessing that
working condition within the text or structure of the Proposal
before it. Nat’l Treasury Emps. Union, 71 F.L.R.A. at 707.
Although the FLRA, in its appellate brief, attempts to remedy
that defect via reference to Section 20.06(2)(d), we “may not
accept appellate counsel’s post hoc rationalization for agency
action.” Erie Brush & Mfg. Corp. v. NLRB, 700 F.3d 17, 23
(D.C. Cir. 2012) (quoting Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962)). Moreover, Section
20.06(2)(d), by its terms, applies only to expanded telework
and does not void any of the proposed CBA’s other telework-
eligibility requirements. Although not completely clear, it does
not appear that the FLRA decision was limited to “expanded
telework.”13
13
Because the FLRA did not clearly limit its decision to
expanded telework, we do not resolve whether the FLRA could have
reasonably found that the Proposal created a regular teleworker’s
“presumptive entitlement” to expanded telework. The prospect of
baseless grievances, however, would not amount to a “presumptive
entitlement” to telework that could justify the FLRA’s interpretation
of the Proposal.
17
The FLRA decision failed to acknowledge the proposed
CBA’s numerous eligibility provisions applicable to both
expanded telework and regular telework. And it muddled the
Proposal’s distinction between expanded telework and regular
telework through its general reference to “the frequency of
telework.” Because it is based on “a misunderstanding of the
union’s proposal,” the FLRA decision is not a product of
reasoned decisionmaking. See Nat’l Treasury Emps. Union v.
FLRA, 942 F.3d 1154, 1155 (D.C. Cir. 2019); see also Am.
Fed’n of Gov’t Emps., Local 2924 v. FLRA, 470 F.3d 375, 380
(D.C. Cir. 2006) (“To be upheld, the decision ‘must come with
[such] relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” (alteration in original)
(internal quotations omitted) (quoting Am. Fed’n of State, Cnty.
& Mun. Emps. Cap. Area Council 26 v. FLRA, 395 F.3d 443,
447 (D.C. Cir. 2005))).
In sum, reasoned decisionmaking requires the FLRA to
consider the Proposal’s specifications, together with the
proposed CBA’s relevant telework-eligibility and
management-discretion provisions, in order to determine
whether the Proposal affects management’s rights under
§ 7106(a).
For the foregoing reasons, we grant the Union’s petition
for review, vacate the FLRA’s decision in part14 and remand to
the FLRA for further proceedings consistent with this opinion.
So ordered.
14
As noted, see supra note 5, the FLRA’s determination that the
Telework Enhancement Act of 2010 does not provide the FNS with
sole and exclusive discretion to establish telework frequency is not
before us. We vacate only the FLRA’s conclusion that the Proposal
affects management’s rights to assign work and to direct employees.