Court Rules on Another Furlough Case

The appeals court has upheld two arbitration decisions that ruled against a union challenge to the furlough of Army employees brought about by sequestration in 2013.

National Federation of Federal Employees launched two challenges before two different arbitrators against the 2013 furloughs of unit members that came about as a result of the automatic spending reductions caused by “sequestration.” The federal appeals court consolidated the two cases and has now ruled in National Federation of Federal Employees, Local 1442 v. Department of the Army (CAFC No. 2014-3175) and NFFE v. Watervliet Arsenal (CAFC No. 2014-3189), 10/20/15.

One case involved some 138 bargaining unit employees at Letterkenny Army Depot in Pennsylvania (“LEAD”), and the other involved two grievances that represented all of NFFE’s unit members at Watervliet Arsenal in New York (“WVA”). During fiscal year 2013 the Army furloughed these employees for six “discontinuous” days during the latter part of the FY.

Arbitrator Roger P. Kaplan ruled in the LEAD furloughs that they were done lawfully and he denied the union’s grievance. Soon thereafter, Arbitrator James A. Gross ruled that the furlough of the “non-security” bargaining unit employees at WVA was done in accordance with law and denied the union’s grievance; however, he found that the furlough of security employees at WVA had not been done in accordance with law. (Opinion p. 3)

NFFE appealed both arbitrators’ decisions, although in the case of the WVA employees the appeal was only as to the non-security employees.  The key argument was that furlough was inappropriate in both instances because the affected entities were paid for out of working capital funds, self-supported, and therefore the sequestration should have been of no consequence and furlough was unnecessary. (pp. 5-6) Both arbitrators had concluded that this was of no bearing—the entities were part of DOD and under the “extraordinary” events of the sequestration and its impact on the agency, there was no basis to question “reasonable management solutions.” (p. 9)

The appeals court has sustained both arbitrators’ decisions, agreeing with the logic and rationale. The court states in pertinent part: “…we think logic and common sense compel the conclusion that, when faced with sequestration, ‘it was reasonable for DOD to consider its budget situation holistically, rather than isolating [LEAD’s and WVA’s] situation.’” (p. 16) The court goes on to note that “We, like the arbitrators, must base our review of the agency’s decision on the circumstances it faced when the furlough decisions were made, and not on events that did or did not occur at a later date.” (p. 18)

NFFE v. Army 2014-3175

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.