MSPB Rejects Union’s Plea for Advisory Opinion on Furloughs

The Merit Systems Protection Board has rejected a union’s request to issue a preemptive opinion on whether Defense Department employees have a winning case if they appeal their furloughs.

MSPB, the small federal agency that handles appeals from government workers who have been furloughed, sent a concise letter on May 13 to the International Federation of Professional and Technical Engineers saying that the board is prohibited under federal law (Title 5, Section 1204 h) from issuing advisory opinions. “Accordingly, we are unable to provide the requested advisory opinion,” wrote William Spencer, the board’s clerk, in the letter to IFPTE President Gregory Junemann.

“The lack of a response from the MSPB is disappointing, but not necessarily surprising,” said Matt Biggs, the union’s legislative and political director. “At this point the DoD furlough policy seems to be more of a political decision than a budgetary one, so a small agency like MSPB issuing an opinion that could be interpreted as hindering what DoD is planning is probably asking too much.”

The union had urged MSPB to “examine the DoD furlough policy, including the letters and legislative actions by Congress granting DoD funding flexibility, and issue a pre-emptive statement of opinion as to whether or not the department’s workers could prevail at the MSPB is they experience a furlough,” according to the May 1 letter from Junemann to MSPB Chairwoman Susan Tsui Grundmann.

The IFPTE request stemmed from the extraordinary steps Congress and some agencies, including the Federal Aviation Administration and the Justice Department, took during the last few weeks to avoid furloughing employees because of sequestration. Indeed, the continuing resolution funding the government through the end of fiscal 2013 shifts more than $10 billion from Defense’s procurement and research and development accounts to the operations and maintenance account, which contains most of the funds for civilian salaries.

Lawmakers also have urged the Pentagon to allow their individual agencies to avoid civilian furloughs if they are able to do so. For instance, the Navy has expressed confidence that they can find cost savings in the budget to take unpaid leave off the table. But Defense Secretary Chuck Hagel and other officials have said they want to be fair in applying furloughs throughout the civilian workforce to unify employees (active-duty military personnel are exempt from furloughs). There also have been concerns that employees could take legal action over unpaid leave if they believe it is not being doled out equitably.

Hagel announced on Tuesday that the number of civilian furlough days would be reduced from 14 to 11 for the rest of the fiscal year, down from the original estimate of 22 days. Shipyard employees, workers who are paid with nonappropriated funds (NAF), foreign nationals, civilians working in combat zones, and some employees dealing with protection of life and property are exempt from furloughs. The department employs about 800,000 civilians.

As for MSPB, the agency had 98 furlough appeals in its regional and field offices as of May 13, said MSPB Executive Director Jim Eisenmann on Tuesday, also noting that MSPB itself will not have to furlough any of its employees during fiscal 2013. Other than those updates, it remains unclear whether or not the agency will be inundated with furlough-related complaints. “We don’t know if it’s going to be a whole dam breaking down, or just a trickle,” Eisenmann said in February, of the number of complaints employees could file appealing their furloughs. “We just don’t know.”

Among other responsibilities, MSPB adjudicates appeals of “adverse personnel actions” from federal employees who have been fired, suspended for more than 14 days, furloughed for 30 days or less, demoted or had their pay cut. Agencies must give furloughed employees 30 days’ advance notice; once on furlough, employees have 30 days to file an appeal with MSPB. In fiscal 2012, MSPB issued 7,585 decisions, including 6,523 initial decisions from the regional and field offices, and 1,050 decisions issued at headquarters.

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