Education, SSA, HHS, VA, EPA, IRS, Labor and DoD—have announced planned deep staff reductions that are expected to involve layoffs. Image: Tada Images/Shutterstock.com
By: FEDweek StaffIn a memo that lays the groundwork for wide-scale reductions-in-force projected to come across the government, agencies have been told to review their contracts with employee unions for provisions that they can deem as “unenforceable” limits on management’s discretion over RIFs.
A memo on chcoc.gov mirrors an earlier Trump administration directive telling agencies to review contracts for provisions regarding telework that they could deem unenforceable in carrying out the return-to-onsite work order. Like the telework provisions, unions have viewed RIF-related provisions as a providing, at least for employees they represent, some protections in advance—or grounds for later legal challenges.
It comes as major agencies–for example, Education, SSA, HHS, VA, EPA, IRS, Labor and DoD—have announced planned deep staff reductions that are expected to involve layoffs even after offers of early retirement and buyouts designed to boost attrition. Those layoffs are going beyond those already carried out or still in progress mainly involving probationary employees (whether those layoffs amounted to RIFs and whether agencies violated RIF policies is at issue in several legal challenges).
The memo notes that by law, “each agency has the right to determine whether to conduct a RIF and exercise its discretion in determining which positions will be abolished or retained” and says that “the scope of collective bargaining should be limited to procedures and appropriate arrangement that do not run afoul” of the procedures laid out in laws and rules.
Agencies “should review all CBAs [collective bargaining agreements] to determine whether and to what extent RIFs are covered by their CBAs . . . Any CBA provisions that are inconsistent with OPM regulations or that excessively interfere with management’s rights to “determine the organization” and the “number of employees” of the agency, as well as “layoff, and retain employees in the agency” are unenforceable,” it says.
Agencies also should determine “how to fulfill their labor obligations and incorporate those activities into their planning processes” for RIFs, it says, and to whether any further union proposals may be non-negotiable because the topics already are covered by a contract.
It adds that agencies may have a duty to bargain over proposals such as requiring an agency to provide impacted bargaining unit employees advance notice before implementing a RIF, giving hiring preferences to qualified employees, providing training to help impacted employees meet requirements of a new position, and granting preference for a return to specific locations or positions.
Further, agencies may be obligated to provide information for which the union has a “particularized need,” but says that unions must show “more than conclusory or bare assertions” such as that the information be relevant or useful to them. Agencies that do provide information on request should “ensure that they do not disclose information that constitutes guidance, advice, and counsel for management officials relating to collective bargaining.”
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