Policy And Labor Relations - Reduction in force

Tim Curry: Hello everyone and welcome to our continuing series of An Employee In Labor Relations Roundtables. Iím Tim Curry. Iím the Deputy Associate Director For Partnership and Labor Relations here in OPM. Partnership in Labor Relations provides guidance and policy in the area of labor relations, employee relations and suitability. Todayís Roundtable will provide an overview of the roles of OPM, the MSPB and the FLRA in reduction in force or RIF procedures. The session will highlight RIF policy, regulations, appeal rights and case law along with negotiability and bargaining issues. Weíre delighted to work with representatives from the Office Personnel Management, the Merit Systems Protection Board and the Federal Labor Relations Authority for todayís session. So our first panelist will be Mr. Michael Bogdanow. Mr. Bogdanow currently serves as the legal liaison between the headquarters office of the Merit Systems Protection Board and the MSPBís eight regional and field office. Mr. Bogdanow is also a certified mediator in the MSPBís Mediation Appeals Program. After Mr. Bogdanow, our next panelist is Pam Galemore. Ms. Galemore is a Human Resource Specialist in OPMís hiring policy, recruitment and hiring, part of employee services here at OPM. Mr. Galemore advises on reduction and force, reemployment priority, career transition programs along with the voluntary early retirement authority or VERA and voluntary separation and payments. The VISA programs. Our final panelist will be Barbara Kraft. Barbara Kraft serves as the Regional Director of the Washington regional office. One of the Federal Regulations Authority, seven regional offices. As Regional Director she supervises a team of attorneys and administrative staff in the investigation and prosecution of unfair labor practices, conducting union elections and the investigation and resolution of questions concerning representation, including composition and scope of bargaining units. She was appointed Regional Director in May 2010 having worked in private practice for many years representing public and private sector unions, non-profit organizations, small government agencies and benefits plans. Our presenters bring a tremendous amount of expertise and experience to this area. Weíre delighted to have them to speak to us today. So sit back, enjoy what I believe youíll be, uh, find to be a very informative topic. And donít forget those of you joining via webcast can submit questions for the speakers, uh, by sending them directly to PLR@opm.gov. And itís at PLR@opm.gov . We will attempt to respond to as many questions as we can towards the end of the broadcast. For those of you here in the auditorium here at OPM, uh, please wait until one of the OPM staff members brings you microphone. We want to ensure that the webcast viewers will be able to hear your question when asked of the speakers. So without further ado Iíll start with Michael. Thank you. Michael Bogdanow: Thank you very much. Good afternoon to all of you here on the East Coast and in this room. And good morning to those of you on the web further West. Um, we are here to talk about RIF as Mr. Curry just indicated. And, uh, itís not a particularly happy topic. Um, so it generally doesnít get a lot of laughs. Not my favorite thing to do but what can I tell you. I thin what Iíd you to do is think of us as a, our panel here as a living breathing insurance policy. You buy insurance and you really donít want to ever have to cash-in on it. But when you do itís good to have. So weíre here just to try and give you a little bit of a background on RIF. Uh, so that if the day comes when you have to, when you have to, excuse me, have to do one youíll have a better idea as to, to what the requirements are. Okay. So, what is a RIF? Uh, a reduction in force is a competitive process that is designed to reduce the workforce, uh, in an orderly structured fashion when one of their bases for taking a RIF occurs. Uh, what are those situations in which a RIF can happen? Thereís lack of work, shortage of funds, an insufficient personnel ceiling, a reorganization which means the plan to elimination, addition or redistribution of function. And reclassification due to, um, the exercise, excuse me, the, uh, the erosion of duties if it takes place during a RIF. And, uh, the exercise of reemployment or restoration rights. So when is that required? Well, you can have any of those things occur and still not have to do a RIF. When you have a RIF situation though is when a competing employee is released from his or her competitive level by furlough for more than 30 days, separation, demotion or reassignment requiring displacement. Um, there are I think youíll find, uh, thereís a lot of terminology that goes with a reduction in force. And, uh, I apologize for all of the technical terms. Iíll try and explain the ones as I, that I say as I go along. Um, but, uh, I recognize that all of that technical stuff can get kind of boring. But Iím a lawyer and let me tell you when you graduate from law school after all those years, paying all that money, you get your diploma and they say two things: No. 1: Congratulations. No. 2: Go forth and be boring. So thatís what Iím here to do. Um, a reduction in force is, it requires an awful lot of pre-planning. Uh, those of you in HR and ER and LR and all those Rís know that that is true. Um, it is something that hasnít really happened in the federal government on any great scale for quite a few years. And so thereís probably not a lot of expertise out there on which to rely. So weíre just going to try and give you a little brush-up here on, on some things that you need to remember. Um, the reduction in force process is basically defined, uh, by two, in two ways. Uh, number one is, um, positions. And number two is people. Um, the, the scope of competition, uh, which is what a RIF is, um, involves the categorization, um, of the competitive, of all competitive positions by competitive area and within competitive area, competitive level. Uh, the competitive area is the geographic or sort of spatial kind of concept, uh, itís the competitive areas are defined solely in terms of an agencyís organizational units or geographic locations. Uh, the minimum competitive area is a sub-division of the agency under separate administration within the local commuting area. And whatís the local commuting area? Well, it varies. If, itís basically the area within which an employee could be expected to commute back and forth to work. Um, obviously if you, if you work in New York City that area might be different than if you worked somewhere in Wyoming or Montana. Uh, but thatís what, what it is that determines that. Um, and as far as, and an organizational unit, uh, within the agency that tends to be determined by each agencyís structure and delegations of authority. So thereís no way to tell, to give a single rule for how something is going to work. It simply depends on what the structure of the agency is. Um, the, uh, thereís a lot of discretion in RIF, uh, as I suggest, um, you can generally speaking, go bigger than, uh, what the minimum competitive area might be. But generally not go the other way. Um, anyway within a competitive areas as I say the next thing relating to positions, uh, again divorced from people is competitive levels. Uh, competitive levels are the position centric kind of consideration, uh, that defines the, the competition. They consist, competitive levels consist of all positions in a competitive area in the same grade, occupational level and classification series that are similar enough in duties and responsibilities and qualifications requirements that the agency can assign the incumbent of one of those positions to any other job in that competitive level without, uh, undue interruption. And thereís another term that needs definition. Uh, the way thatís term is defined for purposes of RIF is could somebody who has your basic background in the area do the job with, within 90 days. Anything more than 90 days is considered undue interruption. Um, having, once you setup the competitive areas and the competitive levels whatís missing obviously is the people. And certainly theyíd rather be missing, but unfortunately they, that canít happen. Um, so once you put all of those into effect you have to then integrate employees on a retention register. And a retention register, uh, categorizes people based on their tenure of employment, their veteranís preference, their length of service and their performance rating. Uh, all of those factors when put together determine your tenure group and your sub-group, uh, and within each sub-group people are then put on there by retention standing, that is their years of service, augmented by their, by the credit for their performance. Um, what are those tenure groups? Well, in competitive service, uh, thereís Tenure Group 1 which is all career employees, no non, non-probationer employees. Uh, probationary employees, excuse me. Uh, Tenure Group 2 is all career conditional employees and probationers, And Tenure Group 3 are people with appointments that are in definite tamper status quo, that kind of thing. Uh, the sub-groups are sub-group AD, which is for 30 percent veterans. Uh, A which is for preference, other preference eligibleís and B who are the non-preference eligible group. Uh, there are similar categorizations in the accepted service. Um, for instance, Group 1 is permanent employees without condition. Group 2 is employees in a trial period or the equivalent of, uh, career conditional. Um, and then also the sort of indefinite appointments in Group 3. Uh, but weíre going to be concentrating on, uh, competitive service here. Um, length of service, what does that include? It includes all civilian and military service, but you cannot get dual credit for any of that time for both military and civilian. Uh, the performance rating aspect of it. What, how does that figure in? Well, itís based on your three most recent ratings of record. Uh, you get, uh, for an outstanding rating you get 20 years for an exceeds or the equivalent which is basically level 4 in a 5 level system. You get 16 years for a fully or the equivalent of that, which is basically level 3. You get 12 years, multiply, uh, add those up, divide by three and you end up with extra credit for your performance evaluation. And obviously if you started young in the government and youíve done very well, uh, and they add on 20 years you could have a service computation date for RIF purposes from the year you were in kindergarten or some such thing. Um, but thatís the way the RIF, uh, RIF process works. Once you have all of that together youíve got your competitive areas, competitive levels, retention registers and everybody is all set, what happens then? Well, there are what we call two rounds of competition. Round No. 1 is competition for release from the competitive level. Um, generally speaking itís done in inverse order of retention standing. In other words, the people with the highest number of years and rating within their tenure group, uh, are the ones who are released last. The folks at the bottom are the ones who are released first. Um, there are the big exception I think that you have to keep in mind, well a couple of them, um, if youíve got people out in the military on military leave they cannot be RIFíd at all, well that is they cannot be separated or demoted. Um, but, uh, Part 353 provides that. So I mean I guess you could reassign them, but they have to remain on the roles. Um, the, there are what are called mandatory exceptions permissive, continuing exceptions, and permissive temporary exceptions to the competition. Um, basically the mandatory exceptions, the big one is people whoíve been restored to duty after military service, excuse me, they have either 6 months or 12 months during which they cannot be RIFíd. Uh, depending on whether they served for more than 6 months in the military or less. Um, thereís also, uh, several of the others. I mean I, I donít think I want to take your time to go into all of those. Uh, but you could check those out at 5CFR351606,607 and 608. Um, the, the single probably most important, um, escape hatch I guess is what I would consider it, from a RIF is a permissive continuing exception for those situations in which undue interruption would in fact result from the release of an employee from his competitive level. Uh, Round 2 of the competition, um, is actually kind of very much like Round 2 of a boxing match. You know, when, when the bell rings you come out fighting. Uh, Round 2 is assignment rights. Where people compete against each other for assignment to whatever positions remain. Um, those apply, the assignment rights apply in the competitive service, but not in the accepted service. And they, uh, apply to Group 1 and Group 2 only. Uh, Group 1 being the career and Group 2 being the career conditional. Um, and also limited by whether somebody has to have a minimally successful rating at least. Um, the job has to be one for which the employee is qualified. Uh, it has to be in the same competitive area and it has to last at least three months. Um, and it has to have the same kind of work schedule. Um, the competition occurs again by pairs of concepts, uh, through bumping or retrieve. Uh, bumping is sort of self-explanatory. Uh, it means that somebody in a lower, a tenure group or a lower sub-group within your tenure group, uh, holds a position that you can bump him out of. Uh, and you can do that as long as the job is no more than three grades or a grade equivalent, grade at intervals below the position from which you are being, uh, removed, separated. Uh, and retreating is the process by which, um, you get to basically, um, advance to the rear. You know, itís kind of the dÈj‡ vu of the RIF world. Uh, that is, uh, you can, uh, retreat to a position thatís held by somebody, um, with a lower retention standing in your same tenure and sub-group. So itís a more internecine kind of struggle there. Um, and also again no more than three grades or grade intervals, uh, except for the AD employees, that is those 30 percent disabled veterans. They can have a five level, uh, jump or fall I should say. Um, but the kicker in retreating, the thing that makes it very different is that this means that youíre going back to an essentially identical position, uh, to one that you formerly held. Um, and, uh, that, uh, the, that is basically what, what defines, uh, retreating. Um, as I said they, the three level or five level grade interval, uh, determination has to be made and that is based on representative rates. Um, another concept that I wouldnít try to spend your time talking about. But you can find those, uh, a discussion of those at 351, Section 351, 701. Um, for any of those ways of getting a job either of them, uh, you have to meet qualifications and those are OPM standards, minimal education, physical qualifications, but with a reasonable accommodation. So you need an accommodation but it can be, itís a reasonable one, then, uh, you meet the, the qualifications, the physical qualifications requirement. Uh, also any special qualifications set by the agency that OPM has approved and you have to have the quotation is, the capacity, adaptability and special skills, uh, needed to satisfactorily perform the job without undue interruption. Uh, and thatís the same concept that I mentioned earlier. Um, there are a lot of, you know, exceptions and smaller, uh, additions to that that I think, uh, Pam is going to talk to you about in a bit. So let me just skip to, um, talking about administrative assignment. Basically those are things that are not required by the RIF regulations, but that the agency has discretion to do during a RIF. Uh, for instance you can allow, uh, displacement of employees with lower standing in the same sub-group if you canít make an offer, an equivalent offer by displacing somebody in a lower sub-group. Um, you can provide assignment rights to the accepted service, um, within the same appointing authority. Uh, there are several things that the regulations list. But what you have to keep in mind is that it all has to be consistent with Part 351 and any exception also has to be uniform and consistently applied. Um, the one thing I didnít mention, uh, which is a big topic these days is furlough. Uh, a furlough is a temporary status without duties and pay. If itís going to last for fewer than 30 days itís an adverse action. Itís not a RIF. And if itís going to be that then you have to give adverse action, uh, procedures under 5USC75, uh, 7511 and 7701. Uh, and, uh, if it lasts for more than 30 days, uh, then it is a RIF furlough. Uh, it can also be discontinuous, in which case it has to be more than 22, with 22 days or more. Um, if, oh 22 work days, excuse me, whereas the 30, uh, days is calendar days. Uh, and it can be used only if you except to call people back within a year. Uh, if you donít that youíll be able to bring them back within that time, then itís a RIF. Itís a RIF separation. Itís not considered a furlough. Um, that is something that, uh, I know we had been asked to speak at one of the agencies in town, uh, about furloughs because of the fact that agencies are beginning to think that budget considerations may very well make those pretty much a requirement. Um, in just a couple of seconds, let me mention to you that the last thing about a RIF that you have to know is that there is a notice requirement. Any of you whoíve been around for a while may know that there used to be a requirement for a general notice, followed by a specific notice. There is now just a requirement for the specific notice. And it has to be issued 60 days before a RIF is going to be effective, before youíre released from your competitive level that is. Um, whatís in the notice, the things that youíd except. Uh, you have to tell them the, the what, the why and the when of whatís happening to them. You have to give people the option of being able to review all of their records. Um, you tell them theyíre, uh, reemployment rights. And most important for those of us who work at the MSPB you have to give them notice of their right to appeal to the board. Um, when that happens then all of the standard board processes kick in. And, um, as youíll see, as you can see at the bottom of that little one page handout, uh, there area a few cases that, uh, give you some very basic information about RIFís. Uh, Logure (ph.) is really the first significant case that the board issued. And it is really very, very, um, important in the RIF process. That the case was illustrative of an agency that in good faith did what it thought it had to in order to keep faith with the Congress. Uh, that is itís congregational relations office had been headed by two people who had totally messed things up. And, um, got themselves fired and they ruined the agencyís reputation with Congress. Ms. Logure was the third person in the office and everybody admitted she had done a fine job, but because she had been associated with those people the agency thought weíd better just make a clean start here, so they RIFíd her and replaced her with people who were basically doing the same thing she used to do. And the board found you were actually taking an adverse action because it was aimed at her personally, it wasnít for a reduction in force reason. Uh, Abakan is the case thatís very significant because it says, except for RIF notice, uh, all of the RIF rights are considered substantive. The difference between whatís a substantive right and whatís a procedural is the agency has the burden of proof as to all substantive issues. So thatís something that you got to keep in mind. Um, and I see Iím taking up more time than I should. So I will, I will let you read the other cases and if you have any questions about them by all means later on, give me an ask. Pam Galemore: Thanks Michael. Um, my name is Pam Galemore. Iím a staffing specialist here at OPM. And Michael gave a very good overview of the reduction in force. Especially the terminology. And most of the terminology used in RIF is only used in RIF. Um, competitive area, you wonít see that in very many other places. Competitive levels, definitely not. Um, as well as bumping and retreating. I know of no other HR, federal HR specialty that includes bumping and retreating. And for certain, um, having those types of names they do mean very, very specific things in the RIF world as Michael explained. Um, and one thing I wanted to expand upon -- Iím considering that itís an ER, LR audience mainly, um, in relation to bumping, um, all they have to do is qualify. They donít have to be highly qualified to bump somebody to have a job. A career preference eligible, non-30 percenter and 1A can bump any, uh, 1B a career non-preference eligible and career conditional. All they have to do is qualify for the job. Okay. As Michael mentioned, um, in one of the pieces I wanted to cover specifically for this audience were the discretionary items that he mentioned. One of which was, um, like there is the same group bumping. Um, I was involved in advising on a reduction in force and we did have a, it was out West and actually the union representative from Washington came out to discuss the issues that were going to be in that RIF and brought up specifically same sub-group bumping. There are pros and cons to it. Um, same sub-group bumping is the normal bump is you bump to a lower sub-group. Meaning, uh, career bumps career conditional. Vet bumps non-vet. 30 percent vet bumps non-30 percent vet. In same sub-group bumping itís, uh, 1A can bump a 1A. Normally that only occurs in retreat, because youíre retreating back to a job that you previously held. So all things being equal you have more time. You can knock that person out of the job. In same sub-group bumping because alls you have to do is qualify, unlike the more restrictive retreat that you had to previously hold the job before. Um, the pro of it, if the agency decides to do it or considers it, the pro obviously itís going to provide more competition. Because I may not have a, a retreat right to Michaelís job, I never held it. But weíre both 1Aís and Iíve got more service than him, so I can same sub-group bump him out of his job and take it. Otherwise I would not have a right to his job. So he is sitting there unaffected. Okay. If the agency chooses, wants to consider that, then it will provide additional competition. By providing additional competition it is now going to be most likely more disruptive to the workforce. Because Michael is sitting there at his little cube, um, just as happy as a little clam, and had not the agency decided to do same sub-group bumping he would sit there the day after the effective date of RIF and I would not be here. So thatís the consideration when the agency is thinking about using some of these administrative and discretionary, um, other things that you can possibly do in RIF. Okay. Um, also in relation to setting the competitive area. Michael mentioned the minimum requirement by the regulation which is organizationally and geographically and the minimum by the reg is an organization, a sub-division of an agency within the local commuting area thatís under separate administration. What the separate administration is, is as Michael mentioned that based upon the delegations of authority. Does the head of that organization have the, um, the authority to establish positions, abolish positions, etc. Thatís what it means by separate administration. That is the minimum requirement. There is no maximum, technically a competitive area where the RIF is going to take place can be a region. It could also, it could be nationwide, it could be worldwide. If you have a worldwide organization. But if considering when setting competitive areas with that wider, with that wider competitive area obviously wider competition comes additional cost. If an employee is assigned from say for instance in, um, North Atlantic region, um, from Maryland to Maine. And I have assignment right to a job in Maine and you setup your competitive area that way, you will pay for my move under the Federal Travel Regulations under GSA. So it is a very seriously consideration, especially if your RIF is being caused by lack of funds. If you do have competitive areas established that wide, you might want to go and look at them, because it is going to be a significant cost increase, if your competitive areas is established wider than your local commuting area. Um, also within, as Michael mentioned one of the other discretionary decisions for the agency to make is providing assignment rights to accepted service. This is the same argument that, or the same pros and cons that are made for same sub-group bumping. Obviously, yes, it will provide additional competition. Um, the con remains there will be more disruption to, potentially to the workforce. Whereas, if you abolish five positions you might result in only ten RIF actions with downgrading and the ultimate separations. If you have same sub-group bumping or provide assignments rights to your accepted service you could easily, easily double that. Um, and remember if, if you have no vacancies to use for placement assistance, whether you do same sub-group bumping or provide assignment rights to your accepted service the same number of people are going to be separated. So the consideration is how much disruption, uh, do you want to cause the remaining workforce to get the same number of reduction in your FTEís. So itís just considerations when potentially negotiation issues come up on these discretionary items. Um, also providing vacancies for assignment. That is another decision that the agency has to make when preparing for its reduction in force. Vacancies are not required to be used in RIF. Um, it is an agency decision to throw them out there for competition. Uh, but once itís out there, you cannot withdraw it from the RIF. Okay. Meaning, like say I offered, um, we had a vacant position offered by, uh, um, Barbara and all of a sudden she got another job somewhere and declined it. Okay. You canít withdraw that vacancy and go, oh well, I just wanted to keep her. So, uh, now that, now that she doesnít want it, then Iím just going to pull that back. No, itís, itís in play and it has to remain in play. Because if you donít, if you try to take it back then obviously it would appear and someone could argue that you did it personally for her. And again, RIF is position at bottom, it is position based. Okay. The competition obviously takes place among the employees, but the process is all position based. Okay. Um, some other considerations that you might want to take into account in RIF. As anybody whose been involved in a RIF, uh, from HR to management, um, as well as the employees who are left behind, RIF exposes every decision made or not made. If you have, especially in relation to performance and conduct. When the RIF is done the people with the highest retention standing and the assignment rights to your jobs are the ones who are remaining. Employees with the minimally successful performance rating have full bumping rights and as Michael mentioned, um, minimum retreat rights. They can only retreat to a position held by another minimally successful employee. If you have potentially employees that who could be considered, um, not your best, um, some that you may have considered taking action against, but decided not to. You never know in a RIF whose going to be remaining behind once the RIF is done. Is it going to be that employee or is it going to be the employee you just hired and spent, you know, hundreds of thousands or thousands of dollars to try to recruit and get on board. Itís something to seriously consider when planning for a reduction in force. Is to look at your workforce and take the actions that you need to take. Uh, because when the RIF is done thatís all youíve got left. And you need to have people that can perform your mission successfully and satisfactorily for the American taxpayer to get their best *** for their buck. Okay. Um, there is some RIF avoidance things I wanted to cover quickly. Um, the voluntary ones, the big rah-rah ones, uh, are voluntary early retirement authority as well as voluntary separation payments or VSIPís. Okay, otherwise known as buyouts. Itís still $25,000, the maximum amount of a buyout is $25,000. And please the Department Of Defense has its own statutory authority for their own VERA and VSIPís. OPM is not involved with, uh, DOD VERA and VSIP programs. If youíre DOD employee, um, or in an DOD office than those types of questions should be sent to the Care Office. Okay. Um, another voluntary method, oh by the way the request comes from the agency for both VERA and VSIP to OPM. OPM approves VERAís and with OPM concurrent so approved VSIPís. Okay. Itís the purpose of these programs is itís incentive to get people to voluntarily go to either avoid a RIF entirely or to lessen its impact. And VERA and VSIP are also position based. An employee has no entitlement to either one. The agency determines the positions that they will offer it to. Um, when the people have to separate in order to get a VSIP or to be eligible to separate through early retirement. Uh, other programs that an agency may consider if theyíre in a RIF situation or trying to avoid a RIF, um, is internal placement programs for vacancies. If you have an organization, um, that you know for automation or whatever, you know, youíve got to drop positions in that organization, whether you have employees and an agency can set itself, can establish its own program prior to the regulatory transition programs kicking in. That the employees in this organization could have first dibs. And thatís totally within agency discretion to setup your own program that way. Also, if itís really bad, um, and the communication between employee and agency or management and the employee has been good, and let them know if youíre in trouble, let ëem know. I mean thatís the one thing about, uh, reduction in force is the lack of communication creates more fear and trepidation among employees than anything else. Um, theyíre more worried about, um, how, whatís going to happen to me or are we going to have one? Um, so if youíre up front and let the employees know that itís not looking good. You know, weíre trying VERA and VSIP but weíre not getting to take rates we need to meet our goals. Uh, we might have to RIF. And so that employees can get prepared as well. Okay. And some of the reduction, some of the avoidance that might come into play there is if it can be handled through some voluntary actions by the employee. Say for instance a call for voluntary take a day, uh, take a day of leave without pay for a few weeks. This would be voluntary. This would not be a furlough. This would be try to RIF avoidance if itís a budgetary issue. Um, some people might be wanting to take part-time if thatís possible within the office and the workload to offer part-time to employees. Um, those are the voluntary types of examples. Involuntary programs that agencies can also initiate to try to avoid RIF obviously reassignments. If you have, um, you can have employees either volunteer, volunteer for a reassignments or the agency can reassign. Unless itís covered by a collective bargaining agreement where that restricts an agencyís right to reassign, you can reassign to anywhere, anytime, anyplace. Um, they could reassign me to Denver tomorrow, I would go. But other people might not want to. So but it doesnít matter, obviously if within the ER, LR crowd if you donít go, then you could be separated by adverse action procedures. Okay. But thatís another way to maybe lessen an impact. Um, freeze hiring and promotions. Not something anybody wants to do, but if it can avoid a RIF people will still have a job when all is said and done. Okay. Um, Michael mentioned furlough. Sometimes if you already have a lean and mean organization and RIF is just going to -- I mean you just, you donít have, youíre not deep. You have no bench strength at all for your organization than furlough instead of RIF being the last resort, furlough might have to be, hopefully a last resort and not have to take RIF. If itís purely budgetary maybe you can use furlough. Because again, furlough is painful. However, at the end of the furlough, people still have their job. Okay. Um, to quickly cover OPMís role. We write the regís. Um, and we provide guidance. But the agency is responsible for conducting the RIF in accordance with the law and accordance with the regulation, and accordance with President decisions from, uh, both the board and the authority. Um, and we provide a lot of guidance out there on our website. And to help you interpret the regís. Basically we just did an overview of the RIF process, very basic, but it kind of goes, we have, itís like an hour and an-half so it goes into a lot more detail. Um, and that is on our, um, video archive on our website at opm.gov. And Christina said, sheís going to mail the link out to, um, all the attendees who registered. So youíll have that link if you want to take a look at it. Itís just me, so you know, make sure you had a lot of coffee. Um, and just, ëcause if you havenít youíre just going to nap right through it. Anyway, hopefully again, as Michael is saying, you donít need it. But itís there if you want to leisurely take a look at how the RIF process works. Um, also we have the Workforce Reshaping Operations Handbook. Uh, for those of you whoíve been around a while. Um, that would be Mr. Tom Glennon. Uh, itís a morphing of all of his RIF modules that he did. For those who donít know, Tom Glennon, um, was RIF man here at OPM. He was involved with the RIF program for over 30 years and he retired last year. And, uh, but he, heís forgotten more than anyone will ever know about the reduction in force process. And a lot of that knowledge he left behind with us with the Workforce Restructuring Operations Handbook. That is on the website as well, as well as VERA and VSIP request guides for agency. How to prepare your request and some, the information thatís required by statute by our regís, that OPM needs to see for approval. Um, for employees we also have a separate little tab for employees. And that contains general overviews of RIF. But it explains the terminology that Michael did this morning. Um, as well as benefits if youíre RIFíd. Okay. The grade and pay retention, severance pay. Um, lumps of manual leave. We have a separate page, a separate guide on career transition. The Career Transition Assistance Program, CTAP. The Inter-Agency Career Transition Assistance Program ICTAP and the Reemployment Priority list. We have general information that -- and some agencies have actually used these guides because, uh, transition assistance, um, information is required in a RIF notice. So some agencies have, has used our guide and say, and itís sufficient to say, see the attached guide and provide it to the employees and that will meet the requirement for the, uh, notice that you have the information. Itís not going to meet all your requirements, you still have to give orientation. So anyway, um, also there are general information guides for employees on VERA and VSIP too. Um, itís not as in-depth as the ones for the agencies. But it explains, um, who, who may be eligible for a VERA at 50 years of age, with 20 years of service or 25 years of service at any age. Um, also the, uh, VSIP requirement, certain people are not eligible for a buyout. Um, for instance those who have not been employed in the federal government for at least three years. Um, also somebody whose under a decision notice to, um, for conduct or performance. Those, it explains the eligibility and ineligibility requirements for both of those programs. Um, our RIF, or the RIF information these guidance, this guidance is our web, excuse me, is on the website at opm.gov. And if you go to the little subject tab up top and click on R go to reduction in force and then general, all of these guides and information and guidance are listed on that website. So now Iíd like to turn it over. And letís what I have. Barbara Kraft: Thank you Pam and Michael. This is all really daunting. Okay. So, uh, good morning and good afternoon everybody. Uh, and this is an honor to be here with you, uh, to talk about this painful subject. Um, and to talk about the FLRAís role. Uh, I really appreciate the depth of professional, of technical guidance thatís, thatís available, uh, on this panel. Um, in my two co-panelists this morning. What Iím going to -- I think Iím going to step back a little bit and talk about in Timís words the role of the Federal Labor Relations Authority in all of this. Um, and to, to do that first of all I want to tell you about my role. Iím the Regional Director of one regional office. There are seven total. Uh, the Regional Directorís role is to decide the merits of unfair labor practice charges. And occasionally, not always, occasionally those unfair labor practice charges, uh, raised the subject of whether a union proposal is actually negotiable. Uh, in addition to my role in, and our role in my office of investigating and deciding on fair labor practice charges. We consider the other, we, we entertain petitions concerning representation questions like Tim mentioned. I guess what I want -- the point I want to make to you is that the, thereís a wide range of matters that come before a regional office of the authority. And RIFís or matters pertaining to reductions in force are going to come to my office, uh, probably in one of two ways. In an unfair labor practice charge that alleges an agency has made a unilateral change. Or has done something, um, inconsistent with, uh, the collective bargaining agreement as it pertains to reduction, and reductions in force. Um, or that the agency has, is failing to bargain about a union proposal that would address the effects on employees of a decision to do a RIF. That would be the context in which a regional office like mine would, uh, be called upon to render an opinion, investigate or render an option about a, a dispute involving a reduction in force or how itís being done. I want to step back for just a moment and, and, and remind this audience, which is probably fairly well informed on this issue. But just to remind all of us that there are other ways that questions about reduction in force are going to come before the authority. And by the authority now Iím referring to the three presidential, uh, as well as the regional offices across the country. A very common way in which a matter pertaining to reduction in positions, uh, reductions in force, the elimination of jobs that may happen as a result of a reorganization or, uh, budget issues or for whatever reason, a common way thatís going to come before the authority is through the results. An award thatís made in an arbitration case. Keep in mind that for many years prior to 2009 the authority did not have a, uh, uh, a proactive if you will, a general counsel or Washington regional office. And that parties, bargaining parties were submitting their disputes to arbitrators by and large, including disputes having to do with some of the issues weíre talking about today. So arbitrators and hereís how arbitrators get involved. The definition of a grievance under our statute and under most collective bargaining agreements is very broad. It can be as broad as a violation of any law, rule, or regulation. So if an agency is doing something that a union believes for example is inconsistent with an OPM regulation about how a RIF is to be done, a union might well, at least prior to 2009, might well have brought that issue before an arbitrator and had an arbitrator render a decision about that. An arbitratorís award canít, uh, a party who, who loses before an arbitrator can file exceptions to that award. And those exceptions go to the three precedentials. Exceptions to arbitration awards do not come to a regional office of the authority. So, uh, if an arbitrator said something or ruled in such a way that an agency or a union didnít like, the losing party may have filed exceptions. Those exceptions went to the full authority and the authority decided that case using the standard of review -- and this is a general proposition now Iím, Iím making. As its standard of review, uh, generally speaking whether the arbitrator correctly applied the law as, as written within the four corners of the contract. The arbitrator, the authority may also go outside the four corners, if the arbitrator was asked to interpret something outside the contract. For example, an OPM regulation, or a, for that matter a, uh, a principle arising under Title 7 of the Civil Rights Act, the Rehabilitation Act of 1973, the other laws that were called upon to administer. The authority is also going to look at the way the arbitrator interpreted that law. Uh, and opine as to whether itís correct and render a decision. So the point Iím making is that, um, matters such as the ones were discussing today or matters related to reductions in force may come to the authority for the decision through the arbitration process. Another way, the second way that these issues will come to the authority and again Iím referring to the three precedentials plus my whole agency. Is through a negotiability appeal. And some of you may have been through that process. That is, parties are bargaining, either bargaining a term contract or theyíre bargaining a mid term about something that is not addressed in their contract. Or theyíre bargaining because management has, uh, needs or wants to make a change during the term of a contract. And it has an obligation as you probably know under our statute to tell the union about the change it needs or wants to make and to notify about, and notify the union and bargain to the extent required by the law to bargain about that unilateral change before implementing it. So what will, uh, sometimes happen is in either term bargaining about a term agreement. Or bargaining about a mid-term issue that arises. Or bargaining about what the union may, more frequently the union may allege as a unilateral change. Weíre not always going to agree with that, but the union may agree is a unilateral change. Um, the subject, the issue may arise as to whether a union proposal is negotiable. And, um, in bargaining when the union makes a proposal that management says is non-negotiable, um, generally speaking the most efficient and quickest way to get that resolved is for the union to file a negotiability appeal. That too does not come to the regional office. It goes to three precedentials and often is, is delegated to our, um, collaborative alternative dispute resolution office, CADRO. Or the person who staffs that office and the people that he calls upon to work with him from authority, uh, members of the authority have staffs. The, our CADRO official calls on the staff members to help him, uh, work on and make recommendations to the authority about negotiability appeals. So if you go then into our, um, and I should backtrack for a moment. If you go to our web page, flra.gov and click on decisions, you can search negotiability appeals. Um, that, that body of case law for decisions about RIFís. You can search arbitration exception cases for decisions about RIFís. And then the third group that Iím going to talk about in a minute is unfair labor practice charges. You can search that body of case law for decisions about RIFís. And see what the authority has done in each of those contexts. So going back again, so Iíve talked about the RIF issues or matters relating to RIF or the way a RIF is done coming up through an arbitrator award. Um, RIF issues are the way, disputes about the ways the RIF is done coming up through a negotiability appeal, going directly to the authority. The third way that we might, we and the authority might see something pertaining to a RIF would be a matter that would come to my office. And that would be -- it might actually be two, two large groups of, two groups of situations where it would come, come to my office. Mainly in the context of an unfair labor practice charge where the union has made a proposal, agency says itís not negotiable -- for whatever reason. It could be a failure of communication. It could be good or bad faith. It could be, there could be a dispute about whether thereís, thereís good faith in that particular relationship, in that particular dynamic. The union is not getting or has not asked for a declaration of non-negotiability from the agency. And if you go to -- and which would precipitate a negotiability appeal. If you go to our regulations also on our web page, thereís specific procedures timeframes, procedures that apply to a negotiability appeal. A union is supposed to ask for a declaration of a non-negotiability from an agency. Agency is supposed to respond, union upon getting the agencyís response, an explanation, itís supposed to file an appeal. That, that process is fairly, has fairly short timeframes. It should happen fairly expeditiously. When a negotiability appeal gets to the authority the parties here from the authority right away. Okay. Contrast that with ULP case processing in my office and in the other regional offices across the country. Weíll get a, um, a refusal to bargain type ULP. In other words, when it comes into our office itís docketed as agency is refusing to bargain. And when we get into the weeds of it, we may see that the agency is refusing to bargain about a union proposal that has to do with reductions in force. So thatís the third way that that type of issue, uh, or a matter, a dispute related to reductions in force is going come to, come to the authority for, for, potentially for decision making. I mentioned possibly another way I might see, we might see something having to do with RIFís. And that might be through a statutory information request. One of the things in the points that I listed on the handout and Pam mentioned it to, um, and we all know this, that these things, these incredibly painful decisions and incredibly painful actions are best done in an environment where people are sharing information with each other. Um, a union has under our statute a right to request information from an agency. An agency has a duty under our statute to provide information requested by a union. Thereís a fairly strict and frequently we will see unions and I expect we will see in the coming months or years, unions asking for information that has to do with -- probably has to do with the agencyís thinking about how it is going to conduct a RIF. Thereís a fairly and, and, and just to remind you of the umbrella that Iím standing under right now, the FLRAís role when it comes to reduction in force. Thereís a fairly specific test for union information requests that has developed under our case law. Um, our, our statute says, under Section 7114 and 7116, um, which defines unfair labor practices, our statute says that a union, uh, is entitled, uh, information that is, um, available, normally maintained and that is necessary for the union to perform its representational responsibilities. I suspect we will hear where we wouldnít get much argument on the fact that in order for a union to maintain its representational, to perform its representational duties as the exclusive rep in the bargaining unit, whether or not people pay, pay dues, the union the duty of fair representation with respect to everyone. Um, for the union to do what it needs to do, it needs information. And itís entitled to certain information under our statute. There is a test that necessary pronged unions entitled to information that is necessary for it to do its job. Of course that necessary has been interpreted in a lot of case law. And it finally boils down to the authority has held that in order for the union to show that information is necessary, the union must establish particularized need for that information. Many unions, and I can tell you, because we see a lot of unfair labor, unfair labor practice requests, uh, charges based on info requests where the union does not, is not informed about the particularized need standard and is not meeting it. In order to meet that standard the union has to show, has to say, has to tell the agency what it needs, why it needs it and how itís going to use it. When you think about the fact that many union leaders are lay people, volunteers, not lawyers, uh, thatís hard. Itís hard for a lot of unions to meet that standard. But certainly theyíre going to be under a lot of pressure to meet it and a lot of pressure to make information requests when our various agencies start talking about doing reductions in force. Um, let me go back to some, uh, so, so just to recap for a moment. When, when I see and as a Regional Director, when I see unfair labor practice charges, um, alleging matters related to reductions in force theyíre either going to be in the bargaining context or theyíre going to be in the information request context. The union is going to be saying, in order for us to respond or even participate in discussions with the agency management about a reduction in force, we need certain information. The point Pam meant, made about your decisions, the decisions that youíve made being made or not made. And also to the extent youíve not, decided not to do something or decided to do something and have justification for it. Uh, justification that is consistent with your performance management system, consistent with your collective bargaining agreement, consistent with your other recordkeeping responsibilities, that not only is helpful, that only not provides a great defense in the event that something you decide to do is later appealed. But it also helps you justify and explain to the union exactly what management feels it has to do, what management intends to do, or is thinking about doing. And it makes the discussions with the union, uh, much more constructive and hopefully much briefer and less time consuming and less, less acrimonious. Um, so those are the various ways that matters related to RIFís will come to my agency. And those are the various parts of my agency to which these matters will come. And my e-mail address and contact information is in the materials, in case you want to ask me, e-mail me a specific question, Iíll ask it without, you know, as I only half-jokingly saying, at the, before we came up here to the, to our chairs. Iím not going to make any rulings from the bench, but if you want to call me or e-mail me with a hypothetical situation Iím happy to talk with you about that. And we do that, I do that quite a bit, uh, on a daily basis. We also do a lot of training, um, of parties. And in our training we recite the principles of law that govern our investigations into, uh, what, what matters, what proposals, what matters a union can make proposals about that are actually negotiable. Um, a lot of negotiability laws I said, is made by the authority. And their staffs, the members of the authority and their staffs go around the country teaching, doing, uh, uh, training and teaching on negotiability appeals all the time. But of course we in the regions, are called upon to, to talk about it too in our training. And the principles that we convey in our training, and I did one yesterday. Um, an advanced statutory training that dealt with collective bargaining. And we do them on a, at least a quarterly basis. Weíre planning another, uh, training on advanced statutory training on bargaining for -- I believe itís late January. Are fairly straight forward. And they havenít changed much. And let me tell you why that is. Because as a Regional Director I do not have the discretion or the authority to change existing law. I need to, I, I am required by my position description to apply the authorityís law and court law, uh, as it, as it, as it is now. And if people would like to change the law, they can certainly do that. Thereís a couple of different ways. And we have parties in our office, in the Office Of The General Counsel, the General Counsel oversees the seven regional directors, seven regions. We have parties, uh, before the OGC right now and before our ALJís trying to change the law. And that may well happen in the area of reductions in force. I donít know. But hereís how changes in the law happen for those of you who havenít been involved. I will, the region will dismiss a bargaining charge where the agency has decided, has determined that it will not bargain over a proposal that it believes unduly interferes with a management right. For example, the right to layoff, the right to reassign, the right to retain workers, uh, employees. Uh, the region will, uh, issue a dismissal letter if the charge is not withdrawn in a case where the proposal unduly interferes with that right. And the charging party who has lost then before the region can appeal that decision that, uh, that dismissal letter to the General Counsel. And theyíll have another shot at convincing the General Counsel, her deputy and our Appeals Counsel, um, who collectively have many, many, many years of experience, especially our Appeals Counsel with the authority. But, but the other two as well as labor lawyers. Um, theyíll have a second shot at, at, at, uh, the question that they pose, that they lost on, before the RD, before the Regional Director. Thatís one way to change the law. Matter of fact, since Iíve been in this job and since May of 2010 Iíve had the GC send back to me, uh, remand back to me with the directions to issue complaint, at least three cases in which I have dismissed based on my reading of, um, authority case law. So weíve had, weíve had some collegial of, uh, professional lawyer lead disputes in my office about what the law is. Itís the General Counselís prerogative to consider what, perhaps what the law should be. Um, that is something that is not yet something ordinarily done or a deliberation ordinarily undertaken by the Regional Director. The other way parties, parties can change the law is if I do issue a, issue a complaint filing at the, finding that the agency did fail to bargain on a proposal that we believe negotiable, and if we litigate it before an administrative law judge, and we win -- the agency can appeal to the full authority. If we lose before the administrative law judge, we the representative now the lawyer for the, for the General Counsel can appeal to the authority. And get that, get the authority to look over, to review again, look at again, uh, a decision, our decision as to whether the agency should have bargained about a particular union, union proposal. And I say all that, uh, just to give you the context of what we say in our training and what we do in the day-to-day operation of our office. Weíre quite clear as to the management right thatís set forth in Section 7106 of the statute. Management has the right to layoff people. Management also has the concomitant duty to notify the union and to bargain with the union concerning the impact and implementation of a management rights decision to the extent not inconsistent with case, with, uh, existing law, other federal law, including OPM law. And to the extent the proposal does not unduly interfere with, with management rights. We consider that in the region a fairly straight forward statement of the law. And this is the basis for the training we do. And itís the way we approach the cases that Iíve described to you, that come into the regional office. So, looking at reduction in force for example, which is almost a term of art, as Pam was saying. Itís just kind of a unique creature in the federal personnel system. A reduction in force is, is a term of art. Itís all the things that OPM says it is, the way itís, OPM has defined what it is. And OPM has, has regulates the way itís to be conducted. So within the interstices if you will of all the regulations and rules that Pam was discussing, and that appear in Part 351, um, there may be and Iím not able to say to you today that there never will be, there may be room for a union to make a proposal, uh, as to how this particular step or how this particular part of the RIF process will happen. Um, there are very specific tests under authority case law as to what the proposal has to be. Youíre probably familiar with it. It has to be an appropriate arrangement. It has to effect, it has to be something designed, targeted to the people who are actually going to be effected by the exercise of the management right. And, um, one of our, one of our participants pointed out a DC circuit decision that was litigated some years ago. Where the court said and we in our training do not disagree with this, that proposals that effect supervisors are as a general rule not negotiable. And the way the RIF rules work there are certain aspects of the implementation of the RIF rules that are going to effect supervisors. So questions, weíre certainly going to ask questions if unions make proposals to us, um, that, uh, would if, if implemented, if, if put into effect, effect supervisors. I mean I think itís pretty clear from the court decision what, what the outcome of that would be. Um, but there may be, I mean creative, creative minds can look at these regulations and come up with ways. And in fact there are alternatives to reductions in force that parties have negotiated or that parties have negotiated that they will sit down and talk about before the agency makes a decision to implement a reduction in force. There are alternatives to reductions in force that may well be subject to the duty to bargain. Um, in looking at our bargaining, the bargaining disputes that come into our office. We look at whether thereís a duty to bargain about a particular proposal. And then we look at if there is a, or a particular matter, and if there is a duty to bargain we look at what exactly is the scope of must be, of what must be bargained. Those are kind of two separate parts of the analysis that our agents use. I also wanted to, um, just mention before it seems to be so appropriate in the context that all of us are -- the budgetary context that all of us are facing in the coming months. That there is an Executive Order 13522 out there where the President required agencies to create with their unions and employees forums, uh, to discuss important issues. And among the most important tools those forums were to utilize -- most important forms of communication was pre-decisional involvement. Of course, that, that Executive Order as we know is not enforceable under my statute or under any other law. But pre-decisional involvement does work. Weíve seen it working or at least we working at the FLRA have seen it work with various parties over the last, um, almost two years since itís been in effect. Uh, it works to minimize hopefully or mitigate, minimize the number of issues in dispute. Uh, minimize the amount of time that the parties spend, have to spend in statutory bargaining, if they do have to go to a forum. It minimizes the issues that that forum is going to have to be resolved, going to have to resolve hopefully. It doesnít totally destroy or it helps to mitigate at least the possibility that the relationship will be forever destroyed by some of the bad situations that weíre going to be facing. But I just put that out there as a useful tool, um, the pre-decisional involvement. Now agencies weíre, weíre at the point today, at least with the agencies Iím familiar with, where we havenít yet made decisions about whether weíre going to do reductions in force. Weíre looking at it. Weíre doing pre-planning. Um, and now would be a good time to, for the parties to talk about what might happen. Possible scenarios of what might happen. Um, when all is said and done though, the Executive Order doesnít waive any claim, any rights, defenses, does not waive any management rights under Section 7106. Itís quite clear under 7106 what management rights are in this, in this, uh, with respect to this issue. And, um, the parties have, have at their disposal the statutory processes if they come to that point where management makes the decision and the union feels for whatever reason it needs to respond to it. There are statutory processes in place, uh, for the union to make, to make its claims. So I hope that that, what Iíve just sort of set out gives you kind of a good idea of a, a good overview of what the FLRAís role is with respect to this issue, with respect to implementation of it, with respect to disputes that might arise in the course of this happening. And, um, I look forward to, um, your questions and comments about it. And as I said, feel free to, uh, e-mail me or call me after the presentation if you want to talk some more. Male: You lead to the fact that you seem to take a pretty strict view -- this is the law. This is how I must act. And the General Counsel seems to be finding movement room on how to interpret things. Barbara Kraft: Iím sorry, the General Counsel? Male: It seems to be finding movement room to where they may see a little bit gray area. In your view, which takes precedent? FLRA decision or a decision in the circuit, a deplorable circuit. Barbara Kraft: Well, um, in response to your initial sort of predicate there. Um, I have not seen the General Counsel take any movement, if you will, on this, on the issue that weíre talking about today. I guess what I was suggesting was that by virtue of the General Counselís role under our statute her role, his role, it happens to be a woman right now, Julia Akins Clark, her role is a very different role in the agency from my role. My role as a Regional Director is to apply the law. Her role, she has discretion under, uh, our statute and on the regulations written, um, that apply to her job. She has discretion to review my decision and decide whether itís, it should be, um, whether itís right or wrong, first of all. Whether itís a right or wrong reading of authority precedent and to decide whether itís right or wrong reading of court precedent. I mean with respect to the DC circuit decision, the one youíre referring to I think at the 1997 about competitive areas was it? Your competitive levels. I mean I think that the authority of, is, is not going to take a position thatís different from the, the, uh, DC circuit on the facts of that case. But you know, Iím not prepared to say what the three precedentials would do on the facts, on different facts. Um, thatís probably, probably the best I can say. I mean my job is to apply authority precedent. Now if I were to get -- I can tell you what I might do in a hypothetical situation, if I were to get a charge that makes the same allegation, the identical allegation to, uh, the one the union or the same proposal and a refusal to bargain allegation, as was involved in that case, what I would probably do is seek the, thereís a formal process under our, uh, rules and regulations for, uh, requesting advice from the Deputy General Counsel or from the General Counsel. I might, I might consider a Regional Director may request advice on whether or not to dismiss and whether or not to issue a complaint. That, thereís an opportunity for the, uh, GC to weigh in, uh, on what, what she thinks I ought to do. Ultimately the decision is, is my decision. And then it would be either dismissed and then the losing party would appeal to, to the GC. Or it would be we would prosecute it and in which place the losing party could appeal to the full authority. Female: We also have a question from the web. Uh, does part-time versus full-time factor into the RIF procedures? Pam Galemore: Yes. Um, thatís one of the factors that come into establishing competitive levels. Um, this is, Michael gave a very broad overview and the, um, webinars also a broad overview that I would strongly suggest going to our guidance thatís on the website. Um, that gets into in more detail, especially the Workforce Reshaping Operations Handbook. But a competitive level as Michael said, is by series grade level and also by work schedule. So for instance a full-time employee would never be in the same competitive level with a part-time employee. Also, for assignment rights for both bump and retreat, um, full-timers can only hit full-timers, part-timers can only hit part-timers, never the two shall cross. So yes, it is very important, um, in determining assignment rights for positions. Moderator: Do we have any other questions from the audience? Male: I just have a question about how pass fail systems would factor into the number scoring? Particularly in agencies which may have people who came over from a five tier system and have now folded into pass fail, or visa versa. Pam Galemore: Okay. In a pass, if itís a totally pass fail system and people have been there for the three out of the previous four years, performance becomes a wash. Uh, because everyone whose passed is going to have the exact same average added to their service computation date. So itís basic, performance becomes a non-issue. Um, in the regulations if they are individuals who within the previous three years, um, before issuing RIF notices, if they have various, if they were appraised under various methods then the agency determines, um, whatís, um, can determine, uh, how much credit they will give. They can establish, if they have multiple rating systems within the competitive area exactly what is, how much service they will provide for a particular rating like say, when somebody came a four tier system, others came from a five tier system, um, then the agency would follow those. That the regulations require that it can be no less than 12 and no more than 20 to be within that range. But the agency can pretty much set anything it wants to, um, when it has multiple performance, uh, systems within one competitive area. Moderator: Anyone else? Female: I have another question from the web. Uh, absent a contractual provision, under what circumstances can an arbitrator decide that a RIF was not warranted and that the agency could not do it? Barbara Kraft: That question is for me I gather. Itís interesting, itís an interesting question. Because CBAís Iíve seen the parties have decided to actually incorporate and thereís many CBAís Iíve seen. The parties have decided to incorporate in their contract the language of OPM regulations. And they do that I think mostly as an educational, uh, as a, as a vehicle to let everybody know, both everybody in the bargaining unit who may not even be familiar with the union, uh, but also front line supervisors just to let them know this is what the law is. This is the way RIFís are done. Um, so I, I donít think Iíve ever seen a, a federal CBA without, without something in it that had to do with reductions in force. An arbitrator only has the authority to interpret a contract. So if thereís nothing in the contract, um, Iím not sure why the matter would be before the arbitrator in the first place. One of the points that I alluded to in the, uh, in the points sheet thatís in your materials was this covered by, uh, doctrine. We, itís a rather harsh doctrine, at least from the unionís standpoint. On the other hand it has, it has quite a bit of utility. Um, parties are not, an agency is not required to bargain about something that itís already bargained about, that itís already put in the contract. So when we see a, most often itís raised in a unilateral change case, union complaints thatís a unilateral change that it didnít, that the agency implemented, implemented it without bargaining or without notice in bargaining. The union is asking for a status quo, you know, to go to, go back to the way things were as a remedy. Weíll take a look at the contract and low and behold thatís subject will there in the contract and we ask ourselves why the union didnít file a grievance about it. Um, and we may have to ask, solicit withdrawal or dismiss the case based on that covered by a doctrine. Um, the parties have already bargained about it. Um, thatís not exactly related to the, to the, to the, uh, participantís question. I just wanted to mention that, and throw out there. If itís not in the contract thereís no reason that I can think of why an arbitrator would ever have that matter brought to him. Let, let me backtrack for a moment. If there is -- because the definition of a grievance is so broad in the federal sector, itís possible I suppose that a, an arbitrator could be asked to, to interpret, asked to rule on whether the agency complied with an OPM rule. I have never seen that happen, but I guess technically thereís no reason why that couldnít happen given our broad definition of grievance. But that would be, that would be a very unusual dispute. A way to bring that dispute forward. Female: And also, who determines the commuting area of a specific geographic area? And are those published anywhere? Pam Galemore: By regulation the agency establishes, um, the competitive area and also the commuting area. Um, generally itís again the regulatory requirement is, uh, an area where people can be expected to commute back and forth to work. The agency has to set the standard when itís preparing for a reduction in force. Um, also if, and it has to be a reasonable standard. Agency, or excuse me, employees have appealed, um, definitions of commuting areas to the Merit Systems Protection Board and I believe, I turn it over to you about what the board looks for in relation to, um, the establishing of a commuting area. But the agency establishes it prior, all these decisions are made prior to actually conducting the RIF, because they have to be made. You have to know where the competition is taking place, all the competitive levels, all of that information is made. Are we going to use vacancies? Are we not? Are we going to provide, um, accepted service, assignment rights? Are we not? Weíre going to use all decisions are already done. So when the HR people get into the room then they just go forward and conduct the RIF. Um, and also what, the one thing I wanted to point out, uh, I forgot earlier. Is that the agency does have the total complete responsibility to conduct that RIF prep for it and conduct it in accordance with the regís. Again, OPMís role is advisory in relation to that and we have all the guidance out there. And obviously if folks want to contact me directly, thatís fine as well. Um, but the, the determination of whether the agency did conduct that RIF properly from the employeeís perspective and ensuring that the employeeís rights were followed that the RIF, uh, regulations give them would go to the board. Uh, the board is the arbitrator of RIF appeals. So, unless itís covered by a CBA and then itís covered, well however itís covered in the CBA. So. Female: A reemployed annuitant required to be automatically released before the RIF process? Pam Galemore: Okay. We have the FLRA people in the MS to greet you. Um, the reemployed annuitants again, itís like most HR responses, it depends. An agency is not required to terminate their reemployed annuitants prior to, uh, the effective date of RIF. The agency may allow them to compete based upon their position of record and retention standing, um, or the cause and reemployed annuitants are at will by law, they can separate them and not have them compete at all in the RIF. Male: In your discussion of pre-decisional involvement. How would you view it when there was more than one union involved in the RIF? Because in (WORD?) includes, so itís a multiple bargaining niche. And you got more people in the unions. Having you sit down at a table a pre-decisional and have to deal with four or five unions and they may not be the best of friends. Barbara Kraft: I assume again that that question is for me. Uh, what youíre talking about, are you asking as Regional Director? Or are you asking me as a labor lawyer? Male: A lawyer. Barbara Kraft: As a Regional Director I have no, um, enforcement authority or no say in those kinds of relationship issues. And we donít enforce the Executive Order. Uh, as a practical matter, Iíll go ahead and opine that, that, um, to give the traditional HR answer. It depends. We, we see coming, coming, parties coming into our office, not infrequently, where an agency, I can think of one just now, it just happened the other day in a big BRAC reorganization. Where an agency is sitting down with more than one union and having a very collegial discussion about how this reorganization is going to happen. Um, what happens when the unions donít speak to each other? I mean Iím not sure thereís anything in the Executive Order that requires the agency to be in the same room with two, you know, hostile parties that arenít speaking to each other. Maybe, maybe I would suggest that the agency meets separately with them. I donít know. Uh, if thereís a specific situation that you have in mind, or a specific type of issue that, on which the unions are loggerheads and maybe it doesnít make sense to deal with together, you could give me a call. Female: I have another question from the web. Are agencies required to negotiate over competitive levels and areas? Barbara Kraft: No. Female: What about bumping within a competitive level? Barbara Kraft: Agencies are not required to, uh, bargain over proposals that are, uh, the subject of other laws that are already established in other laws. Thatís the general rule. Now there may be, as a result of an agencyís compliance with a law or rule, there may be an effect, a particular effect that might be properly the subject of a proposal to bargain. Moderator: Did someone else have a question? Male: One last question. I think this one might be for Michael. But, um, Iím curious as weíre looking at these budgetary constraints coming. Furloughs less than 30 days are typically an adverse action I assume could not be taken for any reason other than cause. Are they completely off the table when looking at budgetary issues? Michael Bogdanow: Uh, no. Um, they are supposed to be taken for cause. But, um, I have not seen, uh, the, the board had a case, um, a good 30 years ago now, uh, in which it dealt with the question of whether a furlough, an adverse action furlough could be taken on an emergency basis. And in that context it said no. That it, there was no authority to effectuate it immediately without 30 days notice and what have you. Um, but it did not take adverse action furloughs off the table at all. So, uh, I would assume that if the agency, uh, if the cause is that the appellantís position cannot be funded that thatís the way that the regulations require it to be done. I mean I have not seen a case recently thatís talked about that. So obviously I canít promise you. But, uh, that is what the regulations require. Female: Okay. This is our last web question. This is probably for Pam. Can a three year requirement of service to be eligible for a VSIP include military time that a deposit was paid for? Or does the three years have to be only, uh, civilian service? Pam Galemore: Uh, in accordance with the law it has to be in the civilian side of the federal government. Moderator: You have another question? Male: This is not for the authority. This is for Pam. Um, a while back I was overhead a President of the meaning -- looking at severance pay. Years ago severance pay regulations were changed to say that if you were eligible for discontinued requirement, youíre not eligible for severance pay. And that leads to the possible path of age discrimination. And that you could say if youíre and how it plays out or youíve, if youíre 45 youíre probably not going to be eligible for severance, uh, discontinuing service or youíre eligible for severance pay. If youíre 50 maybe you will get it. Have you heard anything about changing the regulation? Pam Galemore: Iím not pay policy. Male: Oh, okay. Pam Galemore: Um, but if it is, itís either a law or a regulation that if youíre eligible for an immediate annuity including a annuity from the military youíre not entitled to severance pay. Itís an either or proposition and not being a pay person, itís, I know itís in regulation. Iím not sure if itís actually in the law. Um, but I would not know if thereís any talk about changing that. Tim Curry: Anymore? Good. Okay. Uh, thank you to Michael, Pam and Barbara. Uh, we hope that all of you have enjoyed todayís roundtable. And will take away valuable information that will help you understand the complexities of the RIF process. So if any of you think of any questions, uh, after the session is over today, uh, please send your questions to PLR@opm.gov . And weíll do our best to answer them as quickly as possible. Uh, we strongly, uh, ask that all of you to, uh, complete the evaluation form. For those of you here in the auditorium, please leave them with a member of the OPM staff before you leave. For those of you watching over the Internet, please e-mail them in to PLR@opm.gov . Uh, we do review these to see how we can improve future roundtables and also look to, uh, your suggestions for future topics. So thank you for joining us today. And, uh, see you later.