MSPB SPLITS ON EMPLOYEE FURLOUGH RIGHTS
Is a furlough of 22 work days or less an adverse action or an adverse action “lite”? The three MSPB members just issued a split decision on that and it promises to be the beginning of a very important dispute for federal employees as we move into the age of budget shutdowns, sequesters, and debt ceilings. Here is a quick overview of what it could mean to employees and union clout.The agency furloughed its employees for three days this past spring. Rather than let each employee pick his/her furlough days, the agency decided to shut down all operations, close the doors, and furlough everyone on the same three days. Had it let employees pick their furlough days most would have picked a day they otherwise were going to be on leave. While they would have lost the same amount of salary if they picked the day, they would have been able to save three leave days.
When a few dozen of them filed appeals with MSPB, NTEU stepped in to represent its members at the MSPB hearing and demanded about two dozen pieces of information from the agency. The agency refused to provide them, and the MSPB ALJ issued a decision giving the union only a handful of the requested documents. At that point, the hearing was stopped so that the ALJ’s decision could be appealed to the full MSPB.
When MSPB got the case it began by analyzing whether the employees are entitled to the information by explaining what rights employees have to challenge a short furlough–and that it where the three-member Board split. Two members decided that although the law clearly states these short furloughs are adverse actions, agencies need not show by the preponderance of the evidence that it promotes the efficiency of the service to furlough employees the way they did. These two members only require agencies to prove that they treated all similarly situated employees uniformly when they furlough them. Debra Chandler v. Dept. of the Treasury, 2013 MSPB 74 (9/18/13)
However, one member of the Board, Ann Wagner, held that a furlough of 22 work days or less should be treated like any other adverse action. She reasoned that the plain and unambiguous wording of the statute defines it as one just like removals, demotions and long suspensions. She went on to note that there is nothing in the statute that authorizes MSPB to treat one adverse action differently than the others. Ms. Wagner relied on a message the Federal Circuit Court of Appeals has sent the Board several times in recent years. “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) The two other Board members ignored the same court’s order that when one wishes to overcome unambiguous statutory language, one “. . . must show a clearly expressed congressional intent contrary to the text of the statute. See Garcia v. United States, 469 U.S. 70, 75 (1984) (“[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, No. 02-3332 (Fed Cir. 2003).
The case now goes back to the ALJ to order production of the information and conduct a hearing. Once he issues a decision, the case will go back to the Board for a final decision, and if the two member majority does not change their minds, an NTEU appeal to the courts is a virtual certainty.
The message of this case for others is that they also should insist that furloughed employees be given full adverse action rights until this dispute is finally settled. This is important because unless the MSPB case law changes it will be incredibly easy for a manager to furlough an employee virtually any time he/she wishes. There will always be some other priority a manager can point to that allegedly is underfunded and needs precisely the amount of money that it would cost to pay the employee’s salary for a few days. It will also be simple to target individual employees merely by arguing that they are not similarly situated. For example, if three employees in an office perform the same duties, but on different shifts, how hard would it be for the manager to argue that one had to be furloughed and he chose the employee to furlough based on his judgment that the employee’s particular shift need was the lowest priority?
Perhaps the greatest absurdity of this case is that it will be tougher to suspend an employee a single day for disciplinary reasons than it will be to furlough her for 22 days.