SEQUESTRATION AND RIF
With the curtains about to roll back on the annual budget theatrics for us, it is time to think about what role labor law plays in it. The most dreaded response to a budget shortfall from any agency will be a RIF. In all likelihood, no one on either side of that table wants to do that, but those on the agency side will be working against some deadlines to get folks off the rolls. Standing in their way of meeting those deadlines could be one very powerful part of the labor laws, as AFGE demonstrated not long ago.
An agency announced its plan to RIF some employees and gave AFGE the timeline it would follow. Wisely, AFGE asked to negotiate before the agency implemented any changes or established any policies associated with the RIF. Very unwisely, the agency told the union it would not bargain even I&I issues because the term contract did not require that. (The agency thought the parties’ agreement made that clear.) Even more unwisely, the agency changed some past practices established in other RIFs without bargaining with the union. With the union out of the picture, the agency implemented the RIF.
You have probably guessed by now that an arbitrator said the agency violated its obligation to bargain over changes in working conditions BEFORE it makes those changes. What might surprise some is that the arbitrator ordered the agency to undo the RIF, reinstate the separated employees and give them back pay. Decades ago in federal sector labor relations, an arbitrator might have let management off with a slap on the wrists, but these days under revised FLRA case law, if there is a violation of law there must be a remedy—absent some enormously good reason not to.
After avoiding the hard work of dealing with the union up front, the agency must have pulled a few all-nighters writing up its exceptions to the award. It excepted on eight different grounds, which just might be a record for a case as simple as this. FLRA, however, was neither impressed nor moved to change what the arbitrator did. See AFGE, 66 FLRA 1012 (2012)
Union reps will be doing HR folks a favor by waving this case around as some as RIF or similar sequestration response plans surface.