MSPB Issues First Furlough Decisions and Indicates What's Ahead in the Appeals to Come

By on September 22, 2013 in Court Cases, Current Events with 8 Comments

The Merit Systems Protection Board’s (the Board) first furlough cases involved pre-hearing discovery issues by the appealing employee and whether an Agency furlough was fair to Administrative Law Judges (ALJs). The most important, in this writer’s humble view, is Chandler v. Treasury, in which the Board pretty clearly (for them) indicated what arguments it would and would not entertain in furlough appeals.  Let’s look at the cases.

Chandler v. Treasury (The Furlough Aspects)

While the case on initial look, appeared to deal with discovery issues, the Board went far beyond discovery to lay out some basic principles and authorities involved in furloughs and to say, significantly,

“ in light of the basic similarities between RIF and adverse action furloughs, we find that RIF principles are instructive in determining the scope of the Board’s review of adverse action furloughs and what it means for a furlough of 30 days or less to be taken for the “efficiency of the service.”

Although the agency is always responsible for proving that an adverse action promotes the efficiency of the service, we find that the analysis of this issue must depend on the problem that the adverse action was meant to address. Furloughs are unique among adverse actions because by definition they are taken for nondisciplinary reasons and are generally used to address work or funding shortages or other matters that are not personal to the affected employee. 

The Board says that an agency satisfies this standard in a furlough appeal by showing, in general, that the furlough was a reasonable management solution to the financial restrictions placed on it and that the agency applied its determination as to which employees to furlough in a “fair and even manner.”

The Board’s decision in Chandler appears clear that:

  • By “fair and even manner,” the agency must apply the adverse action furlough “uniformly and consistently” just as it is required to apply a RIF.
  • The agency is not required to apply the furlough in such a way as to satisfy the Board’s sense of equity. Rather, it means that the agency is required to treat similar employees similarly and to justify any deviations with legitimate management reasons.
  • The Board’s efficiency of the service determination does not encompass agency spending decisions per se, including spending on personnel matters.
  • It is within an Agency’s broad management discretion to take action to avoid a budget deficit, and the Board lacks the authority to look behind the agency’s decision to remedy that deficit.
  • The Board may not review an Agency’s decision to allocate furlough days in a certain manner among employees who are not similarly situated.
  • An Agency has broad discretion to avoid a deficit by conducting a RIF, and the Board will not second guess an agency’s decision to reorganize its work force as it lacks authority to review the management considerations underlying that exercise of discretion.
  • Such matters belong to the judgment of agency managers, who are in the best position to decide what allocation of funding will best allow the agency to accomplish its mission.
  • Agencies have primary discretion in managing their own workforces.
  • The efficiency of the service determination does encompass issues relating to the uniform and consistent application of the furlough, including whether the agency used a furlough to target employees for personal reasons, or attempted to exempt certain employees from the furlough without legitimate management reasons.

This appears to give an agency great latitude when employees are not “similar” and in doing things for “legitimate management reasons”.  The Board’s later claim of a lack of authority over Agency reorganization decisions has never stopped a similar Agency, the Federal Labor Relations Authority, from trying to order Agencies around in such ways as to decide mission matters.

Whether the Board will honor Agency management discretion as broadly as indicated above has yet to be seen.  I’d like to remind everyone about the Board’s foray into second guessing re: directed reassignment. See MSPB Disagrees with Agency Decision, Changes Case Law in Response.  Of course, Chandler should have employee advocacy law firms toasting with fine champagne and union reps already anticipating years of official time over the prospect of decades of litigation (and perhaps attorney fees) to define the who is “similar” to who and what exactly is “legitimate”.

Chandler v. Treasury (The Discovery Aspects)

The Board says, “discovery is the process by which a party may obtain relevant information from another person or a party that the other person or party has not otherwise provided.  5 C.F.R. § 1201.72(a). Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence.  What constitutes relevant information in discovery is to be liberally interpreted, and uncertainty should be resolved in favor of the movant absent any undue delay or hardship caused by such request. Discoverable information is not without boundaries however, and the requesting party must ultimately show that the information sought is relevant or is likely to lead to relevant evidence. 5 C.F.R.  § 1201.72(b).”

There were originally 16 requests with a number of subparts.  Only 12 remained to be decided. Advocates should read the decision carefully and not rely on this article as the requests were voluminous and we don’t have the space here to address them all.

Some interesting comments in the determination:

  • (Denying the request because it)“concern[s]management considerations underlying the agency’s exercise of its discretion in determining whether the cost savings should be applied to personnel costs and how much should be applied to other expenses.”
  • “We agree with the administrative judge that, because furloughs are not disciplinary in nature, see 5 C.F.R. § 752.402, the Douglas factors are not applicable to an agency’s decision in a furlough appeal.”
  • “The administrative judge denied this request as well, also on the basis that it concerns spending matters within the agency’s sound discretion. We agree. The wisdom of the agency’s spending decisions is not at issue.”

I cannot help taking one comment out of context as perhaps the most worrisome of all in the decision.  It reads:

“The administrative judge denied request 3 on the basis that the agency’s negotiations with the NTEU are not relevant to the pending issues before the Board. We agree.  Any remedy for a violation of the appellant’s collective bargaining rights rests with the negotiated grievance procedure or the Federal Labor Relations Authority. “

Fortunately, due to unfilled vacancies, the FLRA is out of the picture for a while.  On a happier note, Agency reps who deal with NTEU may get some joy in pointing out to that union’s representatives that they (or at least their negotiations) are considered irrelevant by MSPB (we are not alone!).

Department of Labor v. Charles R. Avery, et al. (More Complex Yet Simpler Than Chandler)

In Department of Labor v. Charles R. Avery, et al., the case was decided not by a Board AJ as an appellate decision but by  the Board’s Administrative Law Judge as a matter of original jurisdiction.   As you read the case, you’ll find yourself scratching your head since it doesn’t sound like the other case.  That’s because the people furloughed were ALJs with different appeal rights and standards that most other Feds.  If you’re going to furlough a Senior Executive Service Member, you may want to pay closer attention as the Board might consider them to be different as well.  In this case, the Board found that DOL showed by preponderant evidence that it had sound business reasons behind its decision to furlough the affected employees.  It also found no evidence that the decision was made for an improper reason or to interfere with the ALJs’ qualified judicial independence.

As you read this article, you may well be saying, HUH?  If so, I must admit, it’s complicated.  Chandler’s the much better case for the ordinary federal employee furlough if ordinary is a proper term.  As always, any opinion you perceive is my responsibility.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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