U.S. Federal Labor Relations Authority

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United States of America




In the Matter of







Case No. 98 FSIP 18



    Local 2211, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7119, between it and the U.S. International Trade Commission, Washington, D.C. (ITC or Employer).

    Following an investigation of the request, which concerns staying reduction-in-force (RIF) actions, the Panel determined that the dispute should be resolved on the basis of single written submissions from the parties. After considering the entire record, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a Decision and Order. The parties filed written submissions pursuant to this procedure, and the Panel has now considered the entire record.


    The ITC’s mission is to administer and enforce the international trade laws of the United States, to provide guidance on, and explanations of, trade issues to the executive and legislative branches, and to adjudicate unfair trade practice cases. The Union represents 280 bargaining-unit employees, the majority of whom are attorneys, economists, and international trade analysts. The parties are covered by the terms of a collective bargaining agreement (CBA) that is due to expire in March 1998. The instant impasse arose out of mid-term bargaining over provisions to govern future RIF actions.(1)


    The sole issue in dispute is whether to allow a stay of RIF actions pending appeal to either the Merit Systems Protection Board (MSPB) or a grievance arbitrator, in the case of institutional grievances.(2)


1. The Union’s Position

    The Union proposes that:

If an individual employee files an appeal with the MSPB on his or her own behalf of a RIF or furlough of 30 days or more, or, if the Union files a grievance concerning a RIF or furlough of 30 days or more, then the RIF or furlough of 30 days or more shall be stayed until an initial decision of the MSPB is issued on the employee appeal, or an arbitrator’s decision on the Union grievance is issued.

This proposal provides a stay, during which the MSPB or an arbitrator could consider the legal and factual issues involved before the employees face "the harsh financial . . . impact" of a RIF. In addition, with respect to MSPB appeals, the stay would last only through the initial appeal stage. The short time frame of "this procedural safeguard should not place a [financial] burden on the Agency that reasonable planning cannot avoid." Furthermore, the Employer exaggerates its budget concerns over the stay proposal. During a RIF in 1996, the Employer imposed a 6-day furlough for budgetary reasons. The Agency later refunded the lost pay to employees, however, after concluding that it overestimated the budget shortfall. The Union’s proposal would also discourage the Employer from delaying the appeal process "in order for the passage of time to alleviate its perceived problem through ‘attrition.’"

2. The Employer’s Position

    Essentially, the Employer would maintain the status quo, i.e., RIF actions would not be stayed while employees appeal to either the MSPB or a grievance arbitrator. Currently, "the largest portion of the agency’s budget is devoted to personnel expenses." This means that the extra costs resulting from a stay could lead to the separation of additional employees. Safeguards, such as notice periods, already in the parties’ agreement alleviate the impact on employees, by providing: (1) a 90-day prior notice of the RIF to the Union; (2) a 60-day prior general notice of the RIF to employees; and (3) a 30-day prior specific notice of the pending RIF action to affected employees. Regarding a case resulting from the RIF conducted in 1996, the MSPB found that the Union did not establish that the RIF had a disparate impact on women or minorities.(3)

    The Employer contends that the Union’s proposal is nonnegotiable under § 7106(a) of the Statute because it: (1) prevents RIF actions on the designated effective date; (2) increases RIF-related costs; and (3) eliminates its discretion "to conduct a RIF due to budgetary necessity, mostly under emergency circumstances." Furthermore, the Federal Labor Relations Authority (FLRA) did not address, in previous decisions finding certain stay proposals negotiable, the effect of a stay on management’s rights "to retain employees, determine its budget and workforce size, and to respond to emergency budgetary considerations."(4) In this regard, "(t)he agency’s rights, particularly in times of budgetary emergency, to determine the size and essential functions of its workforce and the manner in which it will allocate scarce resources to prevent a budget deficiency outweigh the employees’ rights to ‘peace of mind’ and additional time on the payroll."


    Having carefully reviewed the evidence and arguments presented, we shall order the Union to withdraw its proposal. Preliminarily, we note that the parties have recently negotiated provisions which afford employees 3-months’ notice in advance of a RIF. While this may offer little solace to those facing a potentially career threatening situation, it at least provides a window period during which those who are adversely affected may pursue alternative employment options. With respect to the Union’s position, we are persuaded that its speculative concern that the Employer may conduct a RIF which is procedurally flawed is outweighed by the disruptive impact the adoption of its proposal would have on the Employer’s ability to manage its operations efficiently. We are equally troubled by the prospect that the Union’s approach would encourage frivolous appeals. In our view, the remedial authority of the MSPB (and grievance arbitrators, where the grievance procedure is an option) to make whole employees who have been the victim of improper RIF actions provides an adequate safeguard in such circumstances. Moreover, we believe the sufficiency of the status quo was amply demonstrated by the parties’ experience during and after the 1996 RIF.


    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

    The Union shall withdraw its proposal.


By direction of the Panel.

H. Joseph Schimansky

Executive Director

April 7, 1998

Washington, D.C.


1.The issue in this case represents the final item for the parties’ agreement.

2.In a separate agreement, dated November 4, 1997, the Union waived its right to either “grieve or arbitrate the rights of either an individual or group of bargaining-unit members that involves a reduction-in-force, furlough of more than 30 days, or a transfer of function.”

3.Armstrong v. U.S. International Trade Commission, Docket No. CB-7121-97-009-V-1 (April 17, 1997).

4.See, for example, Federal Union of Scientists and Engineers and Local R1-144, National Association of Government Employees, SEIU, AFL-CIO, 25 FLRA 964 (1987).