The threat of severe reductions in agencies’ budgets in January 2013 is real. Agencies that have been willing to comment on their plans have indicated that they will try to implement the cuts without eliminating occupied positions. However, furloughs of 10 to 40 days, or more are among the possibilities, depending on the agency. Locals and Councils should prepare for negotiating over procedures to be observed, as well as appropriate arrangements for adversely affected employees.
The first step is to check the current collective bargaining agreement. It will contain provisions that govern whether the union is permitted to demand negotiations during the life of the contract, and if so, how to make the demand. Some agreements specifically preserve the right of the union to demand bargaining in the event of an announced RIF or other change in conditions of employment. Others are largely silent in this regard and the union should interpret the contract in the most favorable light. A few contracts might contain waivers of the union’s rights to negotiate during the life of the agreement, thus seriously curtailing the union’s ability to address this event. Check the articles on mid-contract bargaining, adverse actions, reduction in force, and union rights.
1. By regulation, furloughs of up to 30 days are considered to be adverse actions. Even though a furlough caused by budget cuts is not based on the employee’s own conduct or performance, adverse action procedures must be followed.
2. Furloughs of longer than 30 days are reduction in force actions, and RIF procedures must be observed. Since the term “day” in the RIF regulations refers to calendar days, the Office of Personnel Management has interpreted the regulation as requiring RIF procedures for a furlough of 22 or more work days, whether those days are consecutive or not. (This is very important in the context of sequestration).
3. The procedures for adverse actions and RIF differ in terms of length of notice, contents of a notice, and appeal rights.
4. RIF appeal rights are determined by the collective bargaining agreement.
5. If RIF actions are not specifically excluded from the scope of the grievance procedure, then the grievance procedure must be used, and employees could not appeal to the MSPB.
6. The union must ensure that the correct procedures are observed.