On Sunday night, FedSmith published an article pointing the way to OPM’s Guidance on Shutdown furloughs issued the previous Friday. In my hurry to get the information out, I overlooked the section on pages 28 and 29 addressing labor-management relations. Apparently, whoever approved the guidance that was contained on those pages also overlooked the guidance on these pages as they contained a number of mistakes and oversights.
Regarding Question #1: When a lapse in appropriations requires a shutdown furlough, what is an agency’s obligation to bargain?
While the advice is generally correct as far as it goes, the Office of Personnel Management (OPM) failed to address the fact that no bargaining can take place when those responsible for representing the Agency are furloughed and the fact that a shutdown may qualify as an emergency under 5 U.S. Code § 7106 (a)(2)(D) which authorizes an agency to “take whatever actions may be necessary to carry out the agency mission” as it decides within its management rights.
Regarding Question # 2: Do agencies have an obligation to bargain before it is known whether a lapse in appropriations will occur?
It’s obvious that OPM has either done away with labor relations specialists to forward its relationship with Federal unions or furloughed them all as no one bothered to ask anyone with expertise how to answer this question. OPM goes further in disrespecting Agency labor relations professionals in its guidance (more on this later).
In Marine Engineers’ Beneficial Association, District No. 1 – PCD and Department of the Navy, Military Sealift Command, Virginia Beach, Virginia 60 FLRA 828 (2005), the Federal Labor Relations Authority (FLRA) found that an Agency’s obligation to bargain “speculative proposals” was limited and that for an arrangement to be appropriate, it had to be more than speculative.
This raises a question of an Agency’s obligation to negotiate in contrast with OPM’s dictate to that effect.
Regarding Question # 3: What is the agency’s obligation in responding to a union request under 5 U.S.C. 7114 seeking the agency’s furlough plan and a list of excepted and non-excepted employees?
Beside not having any relevance other than to encourage unions to pester Agencies with information requests, it seems a little silly to address these issues when those obligated to respond are not at work. Maybe I misunderstand or maybe you’re essential at OPM if your job is answering union info requests.
Regarding Question # 4: Can union officials perform representational work on “official time” during a shutdown?
In OPM’s eagerness to get the union representatives off the furlough, it may have missed the key statutory basis for official time. Last time, I read the law, it said:
5 U.S. Code § 7131 (a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.
(d) Except as provided in the preceding subsections of this section—
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative,
shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest. (MY EMPHASIS)
So, if the employee is on furlough, he/she is not otherwise in a duty status and, unless the Agency agreed to allow the union representative to use official time through bargaining, no such use is legal.
OPM tries to get past this with the following:
Exempted employees (i.e. paid by non-appropriated funds) serving as union officials may continue to be granted official time to the same extent and in the same manner as they would under non-shutdown conditions. Other employees serving as union officials may work on official time during a shutdown if such activities fall within the Anti-Deficiency Act’s exceptions. The exercise of a union’s statutory and/or contractual rights triggered by an excepted management action taken during a shutdown would constitute an excepted activity. (Again, my emphasis).
Who says so? OPM? No legal citation is offered, no case is mentioned, no Office of Management and Budget or Department of Justice memorandum is quoted.
I do know that the Antideficiency Act, 31 U.S.C. § 1341(a)(1), provides in relevant part:
“An officer or employee of the United States Government or the District of Columbia government may not—(A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation; or (B) involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.”
Were I an Agency official asked to authorize payment of union representatives during shutdown in the absence of any authority other than OPM’s answer to a hypothetical question, I would be worried about the civil and criminal penalties that might accrue to such a decision. But, what the heck, OPM will back you up, right?
I do know that there’s not a Federal Agency out there that would say with any confidence that OPM would support it on any matter.
In addition, many bargaining unit employees are not at work. In addition, the Federal Labor Relations Authority (FLRA) is closed, the Federal Mediation and Conciliation Service is closed, the Federal Service Impasses Panel is closed, the Merit Systems Protection Board is closed, and the Equal Employment Opp0rtunity Commission is closed. Who would the hypothetical essential union representatives be dealing with?
Presumably, they would have to interact with their district and national union offices who are open. One would think that OPM is kidding everyone with this guidance but they do appear to be completely serious in offering the advice.
Regarding Question # 5: Will union officials have access to their union offices if they are in furlough status?
Of course they will, says OPM. I guess even if somebody has to be found essential to unlock the door. OPM says: “Access to a union office during a period of furlough should not be prevented solely on the basis that a union official seeking access is not in a duty status.” Really? Where does it say that? OPM then says look in the contract. That is a good and may be the only good idea in this document. This leads us to the idea OPM did not have: If there is no specific contract provision addressing access in a shutdown, then there is no basis for access.
OPM’s Biggest Blunder
The guidance states: “agency officials should consult with their General Counsel to evaluate whether contemplated management actions will trigger statutorily or contractually guaranteed representation rights.” Again, really, OPM? I guess you’ve done away with labor relations specialists in your Agency?
Anybody who has worked with me knows that I enjoy excellent relations with Counsel staff, have done so when a federal employee and now when consulting with agencies. Having said that, the first place to go for contract interpretation and application questions is your Agency human resources office. In human resources (HR) are labor relations specialists experienced in dealing with the contract and the union. Since it would appear that no one involved in writing this guidance has ever been in an Agency, perhaps their advice is not a surprise. Perhaps Elaine Kaplan, the ACTING Director and otherwise Agency General Counsel is throwing down on the HR folks in some organizational snit. After all, as Jeremy Bentham once said. “Lawyers are the only persons in whom ignorance of the law is not punished.”
If Two Pages are a Problem, What About the Rest?
All of the above begs the question, what else in the guidance has OPM said for political or ideological reasons that, if followed, Agencies will regret? At the very least, OPM has undermined confidence by what they say in the labor relations section. Federal employees, management personnel and their Agencies have a right to expect better of the agency that provides guidance on human resources issues, including advice on labor relations.
In the end, perhaps Shakespeare (once again) said it best, “Lawless are they that make their wills their law.”
I guess most of the above falls into an opinion so I will take the blame. It is mine and no one else is responsible. For the Feds still out of work, hang in there!