FLRA General Counsel Gives Incomplete Furlough Advice

Have you ever listened to someone give a presentation or state a particular view and leave out a critical piece of information? The Author suggests that perhaps FLRA’s General Counsel’s bias was showing in a recent presentation on Furloughs and Agencies need to take it with a big block of salt.

Recently, the Federal Labor Relations Authority’s Office of General Counsel (OGC) disseminated a Powerpoint® presentation titled “Furloughs and Collective Bargaining.”  As far as it goes, it is an accurate, if extremely sparse, telling of the statutory surround of furloughs and some applicable cases.

From a union perspective, it is a wonderful document, laying out an agency’s obligations regarding both the duty and scope of bargaining.  I guess that’s exactly who it was written to please as it misses a huge point in the process.  OGC appears to have been asleep when the U.S. Circuit Court of Appeals for the Federal Circuit slammed the FLRA’s narrow view of the “Covered By” doctrine in Federal Bureau of Prisons v. FLRA, No. 10-1089 (D.C. Cir. 07/08/11) or maybe the OGC just decided it doesn’t exist.

The critical missed point is that, according to the Court, an Agency has no obligation to bargain if the topic of furloughs was addressed in bargaining for or in the language of a collective bargaining agreement.  The court said: “An agreement between an agency and its employees’ designated representative must be construed “in view of the policies embodied in the [Statute].” Id. at 797. When the question is whether an agreement “covers” a matter, we must answer bearing in mind the importance of finality to collective bargaining. See Dep’t of Navy, 962 F.2d at 59 (the “covered by” doctrine ensures the parties’ “stability and repose” during the term of their agreement).  We will therefore reject any construction of a collective bargaining agreement that treats it as but “a starting point for constant negotiation over every agency action.” (my emphasis)

Perhaps on rereading the case, OGC staff will have an “I couldda had a V-8” moment, smack their heads and say “Ya know, maybe we shouldda mentioned that”.   Somehow, though, I don’t think the omission was accidental.  In the OGC/FLRA scheme of things, bargaining is perpetual and all decisions are subject to a union blessing.  If anyone thinks this is a neutral body, rethink that hypothesis.  Should an Agency consider the union’s views? Of course, but if the contract covers the matter, the duty to bargain has been satisfied and the matter may proceed in accordance with the contract or controlling regulations.

It used to be that we disagreed over the basic facts we were fighting over, and we had different opinions about them. Now I think we accept different sources of authority. … And people can establish credibility on their own say-so as long as nobody follows the trail and calls them out on it.” -Rachel Maddow

Marcus Aurelius  said, “everything we hear is an opinion, not a fact. Everything we see is a perspective, not the truth.” In that regard, if there’s an opinion stated above, it’s my responsibility.

FYI, I’m doing a presentation on Appropriate Arrangements at the upcoming SFLERP Conference in Arlington, VA.  If you’re there, stop by.

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.