“What are appropriate arrangements bargaining related to furlough?”
Appropriate arrangements can be a complicated matter, especially during an unprecedented sequestration furlough in which agencies are receiving very little information and in which most union leaders have no experience. It is imperative union leaders understand the complexities of properly formatting and submitting negotiable Impact & Implementation proposals.
Appropriate arrangements can include virtually anything related to the furlough, other than the actual decision as to whether or not furlough employees. They may include whether days can be taken consecutively or spread out, whether furlough days can be taken in conjunction with days off, weekends, or holidays, to name just a few aspects. The decision to furlough employees is a management right not subject to bargaining. However, when an agency determines furlough is necessary, it has a duty to notify the exclusive representative and, upon request, bargain over negotiable Impact & Implementation proposals the union may submit, unless the matter of furloughs is already “covered by” a collective bargaining agreement. It is important to note the union bears the burden of submitting negotiable I&I proposals, not simply submitting a demand to bargain absent specific proposals.
We are including a key case for reference and encourage you to perform sufficient research in support of your efforts.
22:0307(29)NG AFGE, LOCAL 32 VS OPM 1986 FLRAdec NG
[ v22 p307 ]
The decision of the Authority follows:
22 FLRA NO. 29 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32, AFL-CIO Union and OFFICE OF PERSONNEL MANAGEMENT Agency Case No. O-NG-638
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor – Management Relations Statute (the Statute) and concerns the negotiability of the underlined portions of the following Union proposal:
1. In the event OPM uses a limited furlough as a result of the December 15 budget reductions, 30 calendar days or less, such furloughs will be continuous or discontinuous, at the employee’s option. The employees to be furloughed will be only the employees for which the union was given notice.
2. Employees will be allowed to request a specific schedule for the furlough time. An employee’s request will be honored unless management determines that mission and workload requires otherwise, in which case management will make every reasonable attempt to work out a schedule which is suitable to the employee’s needs. Should an employee request be denied, the employee will be provided written reasons for the denial.
3. OPM will have a liberal LWOP policy during the period of the furloughs but will not coerce any employee into using LWOP. The agency will inform employees that they can get unemployment benefits for any continuous furlough of more than 5 days, but not for LWOP of any length of time.
II. Positions of the Parties
The Agency contends that the Union’s proposal directly interferes with management’s right to determine its budget under section 7106(a)(1) and its right to layoff and retain employees under section 7106(a)(2)(A). The Union contends that the proposal is a negotiable procedure under section 7106(b)(2) or, in the alternative, constitutes an appropriate arrangement within the meaning of section 7106(b)(3). The Union also contends generally that, depending on the circumstances of the case, section 7106 does not prevent the Authority from issuing a bargaining order, even if the proposal is inconsistent with management’s rights.
III. Analysis and Conclusions
The Union’s proposal was made in response to the Agency’s decision to furlough employees in order to compensate for a shortage of appropriated funds. The proposal requires the Agency, first, to notify employees who are to be furloughed that they would be entitled to unemployment compensation for any furlough of more than five continuous days and, second, to offer those employees the opportunity to take their furlough on continuous days so as to qualify for unemployment compensation. While the proposal permits employees to request a particular schedule for their furloughs, it reserves to management the right to deny those requests for reasons related to the Agency’s workload. Employees would also have the option under the proposal to take leave without pay (LWOP) in lieu of a furlough. In short, the proposal does not prevent management from furloughing employees; it does not require management to make all furloughs continuous, only those where employees choose that option; and it does not dictate when furloughs must be scheduled. The proposal does, however, have consequences which directly affect the exercise of management’s rights.
A . Whether The Proposal Violates Management’s Rights
Under the proposal, when an employee chooses to be furloughed on continuous days, management is not able to [ v22 p308 ] assign work to that employee during that period, even if management should determine that it is necessary for the employee to work. In this way, the proposal is like those requiring management to grant employee requests for leave which the Authority has held directly interfere with management’s right to assign work under section 7106(a)(2)(B). See American Federation Government Employees, AFL – CIO, Local 2263 and Department of the Air Force, Headquarters, 160th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583 (1984) (Union Proposal 4); National Federation of Federal Employees, Local 15 and U.S. Army Armament Munitions and Chemical Command, Rock Island Arsenal, Illinois, 19 FLRA No. 6 (1985) (Union Proposal 1). As with the proposals in those cases the proposal in this case similarly would restrict management’s ability to determine when assigned work will be performed.
Our conclusion that the proposal violates management’s right to assign work is based on considerations other than those argued by the Agency. The Agency contends that the proposal directly interferes with management’s rights to determine its budget and to layoff employees. For the following reasons we do not find those Agency contentions persuasive.
The Agency’s position is based on its assessment of the potential consequences of the proposal. In particular, the effect of the proposal is to give employees who are being furloughed the opportunity to qualify for unemployment compensation. 1 Payments to Agency employees who have been laid off are ultimately funded by the Agency. That is, when Federal employees qualify for unemployment compensation under [ v22 p309 ] the laws of the state in which they are employed–or in this case, the laws of the District of Columbia–the state makes the payment to those employees and applies to the U.S. Department of Labor for reimbursement. The Department of Labor reimburses the state and, in turn, bills the Federal agency which had employed those individuals for that amount. 2 The Agency claims that by creating the possibility of such an entitlement the proposal would result in a decrease in the savings which it would realize from the planned furloughs. 3 In order to comply with the proposal and still achieve the savings necessary to make up for the shortage of appropriated funds, the Agency claims that it would be required to lengthen the duration of the furloughs, furlough more employees and/or conduct further reductions in force. 4
The effects which the Agency contends would result from implementation of the Union’s proposal do not amount to a direct interference with management’s rights. At most, the effect of the proposal on those rights is indirect and secondary. That is, the consequences which the Agency foresees are not an inevitable result of the proposal but are dependent on factors outside the proposal. In the first place, it is not possible to know in advance how many, if any, employees subject to furlough would take advantage of the option afforded by the proposal. In this respect, the Agency’s claims about the impact of the proposal are speculative. Secondly, and more importantly, the consequences which are alleged to flow from the proposal are wholly within the control of management. Thus, even if employees choose to make their furloughs continuous and the Agency thereby incurs some liability for unemployment compensation, it would not necessarily follow that there must be more and longer furloughs to make up for the savings lost. That would only be the result if the Agency chooses that alternative from other possible actions it could take to achieve the necessary savings. Contrary to the Agency, therefore, the proposal would not require management to increase the number of employees furloughed or the duration of their furloughs, or to initiate further RIF actions, even though it might make such a decision more probable. [ v22 p310 ]
The Agency also has not shown that implementation of the proposal would directly interfere with management’s right to determine its budget under the test set forth in American Federation of Government Employees, AFL – CIO and Air Force Logistics Command, Wright – Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 995 (1982). The Agency concedes that the proposal does not on its face prescribe a particular program or operation which must be included in the Agency’s budget or an amount to be allocated for such a program or operation. 5 Nor does the proposal result in an increase of costs. Rather, implementation of the proposal could possibly involve the reallocation of a portion of the funds intended for employee salaries to cover the Agency’s liability, if any, for unemployment compensation. The effect of the proposal, therefore, is potentially to reduce the amount of savings to be achieved by the proposed furloughs. It is a speculative result at best, because it is impossible to determine at this point whether, or how many, employees will choose to make their furloughs continuous so as to qualify for unemployment compensation. Even if the proposal ultimately results in an Agency liability for unemployment compensation the proposal would not prevent management from achieving the necessary savings to meet the anticipated shortage funds. The Agency has not shown that it has no other options by which to make up the necessary amount. 6
B . “Appropriate Arrangements”
Because the proposal directly interferes with the exercise of management’s right to assign work, it is not, contrary to the Union’s claim, a negotiable procedure. We turn then to the Union’s additional claim that it constitutes a negotiable appropriate arrangement for employees adversely affected by the exercise of management’s [ v22 p311 ] rights within the meaning of section 7106(b)(3). There can be little question but that the proposal is intended as an “arrangement” for employees adversely affected by management’s decision to furlough. The literal language of the proposal indicates that it is intended to mitigate against the loss of wages due to the furlough by providing employees a basis for claiming unemployment compensation. The basic issue is whether the burden placed by the proposal upon the exercise of management’s right to assign work constitutes excessive interference with that right so as to render the proposal an “inappropriate” arrangement. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 22 FLRA No. 4 (1986).
Management’s right to assign work is reserved in the Statute in order to protect management’s ability, among other things, to manage its workload. Compare American Federation of Government Employees, AFL – CIO, and Air Force Logistics Command, Wright – Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 995 (1982) (right to assign employees to positions under section 7106(a)(2)(A) protects management discretion to determine qualifications necessary to perform the work of a position). The effect of the Union’s proposal on that important interest is insubstantial. In the first place, the most significant impact on the Agency’s ability to accomplish its workload comes from management’s own decision to furlough employees rather than from any consequences which might flow from implementation of the proposal. That is, the Agency’s decision to furlough employees results in the loss of a certain amount of employee worktime. The proposal would do nothing to change that amount. Whether employees are furloughed on a continuous or discontinuous basis, the amount of worktime lost due to furlough would be the same. 7 Moreover, the proposal permits management to schedule furloughs so as to enable it to get its work done when that is necessary. In short, the proposal protects the Agency’s ability to manage its workload with a reduced workforce. For this reason, and because the proposal would not preclude the Agency from making the necessary savings, we conclude that it would not have a detrimental impact on the achievement of effective and efficient government operations. Indeed, even if implementation of the proposal makes it more difficult to accomplish those savings, it would not necessarily mean the proposal is inconsistent with that objective. See American Federation of Government [ v22 p312 ] Employees, AFL – CIO v. Federal Labor Relations Authority, 785 F.2d 333, 337-38 (D.C. Cir. 1986). Compared to the adverse effect on employees of management’s decision to furlough and the benefit conferred by the proposal of an opportunity to qualify for unemployment compensation so as to potentially offset the loss of pay, the minimal burden imposed on management’s right to assign work does not rise to the level of excessive interference. The proposal, therefore, constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. 8
Accordingly, pursuant to section 2424.10 of the Authority’s Rules and Regulations, IT IS ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain on the Union’s proposal. 9
Issued, Washington, D.C. June 30, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY
[ v22 p313 ]
Footnote 1 The bargaining unit in this case consists of employees in the headquarters of the Office of Personnel Management which is located in the District of Columbia. Entitlement to unemployment compensation is determined by the law of the jurisdiction in which a person is employed. The Agency states, without contradiction, that under D.C. law, D.C. Code, 46-101 and 110, any continuous furlough of as few as five workdays would establish entitlement to unemployment compensation. Agency Statement of Position at 3. The planned furloughs were intended to take up no more than 10 workdays but could involve as many as 22 work days. Agency Statement of Position at 2 and Attachment A to the Agency’s Statement of Position.
Footnote 2 See 5 U.S.C. 8509. See also 20 C.F.R. Part 609, Subpart C; Federal Personnel Manual, Chapter 850, Subchapter 2.
Footnote 3 Agency Statement of Position at 3.
Footnote 4 Agency Statement of Position at 4-5.
Footnote 5 Agency Statement of Position at 3.
Footnote 6 The record indicates that the Agency had determined that it could make up the entire budgetary shortfall through a combination of actions: attrition, i.e., not filling positions which become vacant, ($11.5 million), reduction in force ($1.2 million), reimbursable details ($2.0 million), miscellaneous expenses (including travel) ($3.0 million), a pay raise supplemental ($3.3 million), and the planned furloughs ($3.3 million). Agency Statement of Position at 2.
Footnote 7 1 supra.
Footnote 8 We note the Union’s general contention that section 7106 does not preclude the issuance of a bargaining order even where it is determined that a proposal violates management’s rights. Essentially the same arguments were made to the Authority in American Federation of Government Employees, AFL-CIO, National Council of CSA Locals and Community Services Administration, 5 FLRA 748, 752-53 (1981) and the Authority rejected them, finding that both the language and the legislative history of the Statute indicated that section 7106 was intended as a limitation on the scope of bargaining. Nothing the Union has argued here has persuaded us that we reached the wrong conclusion in that case.
Footnote 9 In deciding that the Union’s proposal is within the Agency’s duty to bargain, we make no judgment as to the merits of the proposal.