HAS MSPB GUTTED ADVERSE ACTION PROTECTIONS?
It sure seems like that to us. Imagine that you represent a group of ten GS-11 Claims Analysts, one GS-7 Claims Technician and one GS-5 Secretary. Then one day the group supervisor calls you to announce that she wants to give the Claims Analysts more overtime hours to catch up with the escalating backlog of cases. However, because there is no money in the budget to pay for those hours, management has decided to furlough the group’s Secretary and Technician for the next 20 work days. The money saved from not paying their salary will be used to pay for the Analysts’ overtime hours. According to a new MSPB decision there is not a thing you can do about that. Why? Because the Board has just given managers virtual immunity to withhold 22 work days of pay a year if they want to use the money for other purpose.
In any other adverse action the agency has the burden to prove by the preponderance of evidence that it promotes the efficiency to take adverse action against an employee. (Even the penalty must be justified.) That includes a reduction in pay downgrade, a suspension of 15 days or more or a removal. But the Board just announced that when the agency takes away an employee’s right to earn income for up to weeks a year via a furlough it need only show, “…that the furlough was a reasonable management solution to the financial restrictions placed on it and that the agency applied its determination as to which employees to furlough in a ‘fair and even manner.’” By fair and even it merely means the, “agency applied the adverse action furlough ‘uniformly and consistently’ just as it is required to apply a RIF.” Because the Secretary and Technician would likely be in different competitive levels than the Analysts in the RIF, there is good reason to suspect that the employees will be powerless to fight back. The Board went out of its way to say that the fair and even requirement does not, “…encompass an agency’s decision to allocate furlough days in a certain manner among employees who are not similarly situated.”
Only one MSPB Member realized how insane that is, Ann Wagner. The other two decided that Congress made a mistake when it wrote a statute calling a furlough an adverse action, and decided to help Congress correct its error. They first pronounced that despite the clear language of the statute that the employee protections it provides should vary based on the kind of problem the agency is trying to solve. (Of course, they cite no statutory or legislative history basis for that opinion. it is just the way they think things should be.) They then offered that it seemed wrong to them to give employees more protections against a short furlough than are provided by RIF procedures when the agency wishes to furlough for more than 22 work days a year. (Of course they never mentioned the mind-numbing procedural protections provided employees in a RIF that go a long way toward insulating then against frivolous, unfair actions, e.g., establishing competitive areas and levels, providing bump and retreat rights, assembling data (performance, seniority & veteran status) about employees, etc. Nor did they mention that Congress has never addressed RIF protections; they are established by OPM without any Congressional input.
If you think that you might be able to challenge the furlough if the agency spent money on other frivolous items, such as a motivational film, a senior executive retreat, or even to change the color of office chairs to satisfy some feng shui obsession, think again. The two MSPB members whose last names are not Wagner wrote, “…we find that the Board’s efficiency of the service determination does not encompass agency spending decisions per se, including spending on personnel matters….it is within the agency’s broad management discretion to take action to avoid a budget deficit, and the Board lacks the authority to look behind the agency’s decision to remedy that deficit.”
If you think this is all just a bad dream, take a look at the actual decision, Chandler v. Dept. of Treasury, IRS.