FURLOUGH MYSTERY SOLVED! “IT IS ALL ABOUT MSPB’s NEEDS”
Why did the MSPB give employees virtually no right to challenge adverse actions furloughs, leaving them vulnerable to thinly veiled disciplinary suspensions without the due process, political jockeying, and slush fund management techniques? These and other questions have lingered unanswered ever since the Board issued its decision in Chandler v. Dept. of Treasury, IRS, 2013 MSPB 74. So, FEDSMILL went looking for an answer. Unfortunately, we currently lack the NSA-quality technology to reconstruct the Board’s discussions or pre-decisional paperwork, and Snowden left town before snatching that material for us. Consequently, just as the courts and scientists do, we are going to rely on circumstantial evidence to reveal the answers by ruling out all other alternatives.
Alternative #1- The Board did this to protect federal employees from abuse.
Absolutely not! It did just the opposite by reducing the feeble rights they already had to an unprecedented low level. Managers can now effectively suspend an employee(s) for 22 work days a year, with no viable right to appeal, so long as the agency can claim an inability to pay for the work of the single person or group of employees targeted, e.g., it needs funds to give awards to another group of employees or to repaint an executive’s office. The Board has turned agency employee compensation accounts into rainy day slush funds to cover anything from vital spending to political grandstanding to reckless squandering, such as the $17,000 IRS spent on a happiness consultant.
Alternative #2- The Board did this to make the lives of federal managers easier.
Unlikely! We do not recall any managers complaining about the burden of furloughs since Clark v. OPM, 24 MSPR 224 (1984) was issued. Moreover, as we learned in high school physics, for every action there is an equal and opposite reaction. Now that the Board has stripped away any significant opportunity for employees to protect themselves from abusive furloughs through adverse action procedures, their unions will turn to protections available under the labor relations statutes.
For example, while the Board may not require the agency to prove by the preponderance of evidence that it has an inescapable or even documented budget shortfall, unions can demand all the budget documents before a furlough takes place. (See CREA, 63 FLRA 515 (2009) One of the ironies here is that it was Susan Grundman, then NFFE General Counsel but current MSPB Chair, who convinced a circuit court that an agency is obligated by law to produce tens of thousands of documents if a union properly requests them. See NFFE, 412 F.3d 119 (2005))
Once the union gets the documents it will then likely have the right to insist that all mid-term bargaining be completed before the furlough is effective, absent an emergency. We could go on about grievances challenging the “similarly situated” concept, uniformity, and other matters, but only a wildly naïve person would consider the Chandler decision as making the agencies’ task easier. In fact, it is going to lead to dozens and dozens of different procedures and impact protections throughout government.
Alternative #3- The Board did this to come into line with the Federal Circuit’s rulings.
Hardly! The Federal Circuit Court, which reviews any MSPB furlough decision, has already scolded the Board in other cases for ignoring the clear language of the adverse action law. “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Linda Springer v. James R. Adkins and MSPB, No. 2007-3180 (Fed. Cir. 2008) It also told that Board that in order to deviate from the clear language it “… must show a clearly expressed congressional intent contrary to the text of the statute….(“[O]nly the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language.”). James Campion v. MSPB, 326 F.3d 1210 (Fed Cir. 2003).
Despite those limitations, in Chandler the Board ignored the clear statutory language without any foundation in legislative history. In its place it created its own historical foundation for the federal furlough system by speculating that surely the Congress wanted similarity between RIF and furlough rights—even though there is absolutely no mention of RIF in the statute or Congressional reports.
It also displayed a profound lack of logic when it based its conclusion on its inability to find something that it admitted does not exist. “We see no indication that Congress intended lesser protections for employees affected by more severe personnel actions or that it intended greater scrutiny of temporary measures that agencies take in response to acute situations such as the government-wide furloughs in response to the 2013 sequestration.”
Ironically, in just the last few days the Board issued another decision (Jonson v. FDIC, 2014 MSPB 22) where it correctly affirmed how statutory language takes precedence over legislative history, “…we are to ‘give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies the legislature was ignorant of the meaning of the language it employed.’” Had the Board applied that approach in the Chandler case, the results would have been very different. Perhaps the Board will address its use of different legislative history tests when it reexamines Chandler or while preparing to defend its action before the Federal Circuit court.
Alternative #4- The Board did this to please Congress.
Congress is a multi-nation war zone where something that pleases one group inevitably displeases another. But aside from the futility of trying to please Congress, the Board just handed the Executive Branch another club with which to beat Congress.
One of the oldest budget battle tactics is known as the “Washington Monument” strategy. If an Executive Branch agency is displeased with the lack of funding from the Hill, it merely picks some service it provides that the public finds highly attractive and shuts it down claiming a funding shortage. That triggers a public outcry which goes right through the offices of any Congressional representatives blocking the agency’s funding request, and is a very effective way to put pressure on the Hill.
When Congress classified short-term furloughs as adverse actions it made it much harder for agencies to use the “Washington Monument” weapon because suddenly they had to prove serious funding problems, why there was no reasonable alternative to furlough that kept government operating, and why the furlough was implemented the way it was. For example, why did it cease all service for two days rather than curtail business hours for an hour or so every day? MSPB just took away the protection Congress gave itself and the public with the Chandler decision’s grant of virtual immunity. Why would anyone on the Hill be pleased with that?
Alternative #5- The Board did this to help the government avoid violating the Anti-Deficiency Act in 2013 and the future.
Nope, this does not make sense either. The agencies executed their furloughs in FY 2013 and there was never any chance that the Board would be able to issue a decision in that same fiscal year. So, even if the employees won on appeal to MSPB, the back pay would not have been charged against 2013. As for the future, see alternative #2 above where now employees will turn to the labor statutes to generate a cornucopia of procedures and impact protections.
Alternative #6- The Board did this to align furlough law with its precedents in other cases where employee misconduct was not the basis for the adverse action.
If so, it really botched the job. There are two other situations where an adverse action is “non-disciplinary” or not based on an employee’s misconduct.
The first arises when the agency wants to relocate where the work of a position is done, orders the occupant of the job to reassign to that new location and the employee is unable or unwilling to do so. In those cases the Board has said, “Where the agency has failed to provide any evidence that the appellant’s geographic reassignment was necessary and where the ensuing removal action does not appear to be rationally related to the efficiency of the service, we find…that the agency invoked its discretion to reassign the appellant ‘as a veil to effect’ her separation… An action supportable on ‘any rational basis’ is not necessarily one that will promote the efficiency of the service…. where we have found that the agency did not establish a bona fide, legitimate management reason for the appellant’s geographical reassignment and that the agency instead invoked its discretion to reassign the appellant as a ‘veil’ to affect her separation.’” (Underlining added for emphasis) Miller v. Dept. of Interior, 2013 MSPB 94. Not one of the underlined criteria in this quoted portion of the Miller decision appears in the majority’s Chandler decision.
Even more telling was the Board’s eagerness in Miller to review how the agency wished to reorganize itself compared to what it said about its ability to review an agency’s reorganization in the Chandler furlough decision, “…the Board will not second guess an agency’s decision to reorganize its work force as it lacks authority to review the management considerations underlying that exercise of discretion.”
The second comparable situation is where an agency seeks to remove an employee for inability to maintain a regular work schedule, even if she was on approved leave, e.g., a prolonged illness. To do so, it must prove that: “(1) the employee was absent for compelling reasons beyond her control so that agency approval or disapproval was immaterial because the employee could not be on the job.” (Maria Bair v. DOD, 2012 MSPB 17. Yet, when it is the agency that is unable to provide a regular work schedule it need not prove that is due to “compelling reasons” beyond its control. Nor does the Board require that it defend why it was necessary to implement the furlough in a certain manner, e.g., all time imposed in one pay period rather than spread over several pay periods or entire days on furlough rather than an hour or two on several days.
Alternative #7- The Board did this solely to make life easier on itself, irrespective of what it cost employees, agencies and the public.
Bingo! We have a winner! The only party to unquestionably benefit from the infamous Chandler decision is the Board itself. By stripping from employees virtually every possible grounds for appeal, the Board does not have to carefully weigh evidence, write detailed decisions, develop appropriate remedies, nor rigorously defend itself in court. Under Chandler it can do what we will charitably call a drive-by hearing, preserve its reputation of quickly clearing its docket, and act like it is protecting the merit system rather than weakening it.
We don’t think the two Board members who voted for the Chandler approach did it out of evil intent; it was probably just panic at the thought of having to handle so much work. However, the adverse action law did not provide federal employees all the protections the MSPB could afford to give it, could provide without having to make tough decisions, or could conveniently deliver without disrupting its routine.
The plain language of the law gave employees the right to demand that the agency prove by the preponderance of evidence the need to take the adverse action it has imposed, e.g., there was no reasonable alternative to the furlough or the manner of implementation, the agency was equitably taking money from all its accounts rather than just employees’ compensation funds, etc.
If all goes well, at least one of the two Board members who voted for the Chandler decision changes his/her mind and join Member Wagner in, at a minimum, reinstating the Clark v. Office of Personnel Management, 24 MSPR 224 (1984) decision when the Chandler case comes back to the Board in a few months for a final decision. If things go very well, two Board members align the furlough law with the other adverse action situations and give employees the kind of substantive protections that adverse actions laws have always been about. The agency must prove by the preponderance of credible evidence that–
- it had a funding shortage of a certain amount of money,
- the length of the imposed furlough saved that same amount of money—and no more,
- furlough was the most reasonable option for preserving the efficiency of the service (aka the appropriate penalty),
- the furlough was implemented in a fair and equitable manner, minimizing the impact on employees, e.g., enabled them to charge pre-approved leave days as furlough days in order to at least conserve leave.
If you want to learn more about the furlough issue, check out the recent FEDSMILL postings and watch for more articles analyzing the manifest absurdity of the Board’s Chandler decision.