                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


IN THE MATTERS OF:                              DOCKET NUMBERS

AUSTIN IRS CONSOLIDATION,                       DA-0752-13-4730-I-1
IRS AGUILAR CONSOLIDATION,                      DA-0752-13-4550-I-1
IRS BODDEN CONSOLIDATION,                       DA-0752-13-4551-I-1
IRS FLEETWOOD CONSOLIDATION                     DA-0752-13-4552-I-1
              Appellants, 1

             v.
                                                DATE: December 22, 2015
DEPARTMENT OF THE TREASURY,
            Agency.



        THIS FINAL ORDER IS NONPRECEDENTIAL 2

      Julia E. Miller, Karen L. Lorch, Ramona Wright and Tonia Gilmore,
        Austin, Texas, for the appellants.

      Brandon Baseman, Washington, DC, for the appellants.

      Aaron J. Bennett, Esquire, and Bridgette M. Gibson, Esquire, Dallas,
        Texas, for the agency.




1
 All of the appellants that are included in this larger consolidation are set forth in
Appendices A-D to this Order.
2
   A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2



                                          BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member


                                      FINAL ORDER

¶1        The appellants have filed petitions for review of the initial decisions, which
     affirmed their furloughs. Generally, we grant petitions such as these only when:
     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decisions were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioners’ due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115).     After fully considering the filings in
     these appeals, we conclude that the petitioners have not established any basis
     under section 1201.115 for granting the petitions for review.        Therefore, we
     DENY the petitions for review and AFFIRM the initial decisions, which are now
     the Board’s final decisions. 5 C.F.R. § 1201.113(b).
¶2        A number of similarly situated employees in the Wage and Investment
     Division of the Internal Revenue Service (IRS), assigned to Austin, Texas,
     appealed the agency’s decisions to furlough them for 3 days, one each in May,
     June, and July, 2013. The individual appeals were consolidated into four groups
     over which the same administrative judge presided.         After holding a single
     hearing for all appellants in all four consolidations, he issued identical initial
                                                                                   3

decisions for each consolidation, affirming the agency’s actions. 3        See, e.g.,
Austin IRS Consolidation v. Department of the Treasury, MSPB Docket No.
DA-0752-13-4730-I-1, Consolidation Appeal File, Tab 17, Initial Decision (ID)
at 2, 13. The administrative judge first addressed the agency’s motion to dismiss
the appeals on the basis that the appellants had elected another forum in which to
pursue their claims. Specifically, the agency argued that the National Treasury
Employees Union (NTEU) filed a national grievance regarding the furloughs on
June 14, 2013, asserting that it was filing on behalf of all bargaining unit
members who, like the appellants, had not filed a Board appeal by that date. The
administrative judge considered evidence submitted by the appellants that they
chose to file a Board appeal rather than a grievance, that they never contacted
NTEU about filing the grievance, that they did not ratify NTEU’s grievance, and
that they did not desire NTEU to file a grievance on their behalf; the lack of any
evidence by the agency to rebut the appellants’ evidence; and the further lack of
explicit evidence that the appellants requested that NTEU file a grievance on their
behalf. The administrative judge concluded that it was more likely than not that
the appellants did not authorize the union to file a grievance on their behalf or
that they had knowledge that it was filed before they filed their appeals.        He
therefore found that the appellants made valid elections to appeal to the Board
and that the Board had jurisdiction to adjudicate the appeals. ID at 4-5. The
administrative judge further found that the agency proved that there was “cause”
for the furlough and that it was a reasonable management solution to the financial
restrictions placed upon the agency, ID at 6; that the furlough was applied
uniformly and consistently, ID at 6-9; that the appellants failed to prove that the
agency denied them due process, ID at 9-12, or committed harmful procedural



3
 The initial decision in Austin IRS Consolidation v. Department of the Treasury, MSPB
Docket No. DA-0752-13-4730-I-1, was issued on July 17, 2015, whereas the other three
consolidated initial decisions were issued on July 20, 2015.
                                                                                          4

     error, ID at 12-13; and that whether the agency committed an unfair labor practice
     was beyond the Board’s scope of review, ID at 13.
¶3         The same attorneys representing the appellants on appeal filed identical
     petitions for review of the initial decisions on behalf of the appellants in each of
     the four consolidations. See, e.g., Austin IRS Consolidation v. Department of the
     Treasury, MSPB Docket No. DA-0752-13-4730-I-1, Petition for Review (PFR)
     File, Tabs 1-2.    We have further consolidated all four consolidations.            See
     5 C.F.R. § 1201.36(b) (consolidation is appropriate if doing so would expedite
     processing and not adversely affect the interests of the parties); see also Prouty v.
     General Services Administration, 122 M.S.P.R. 117, ¶ 1 (2014) (consolidating
     cases on review that were adjudicated separately below).           The agency has
     responded to the petitions for review. PFR File, Tab 4. This final order applies
     to all of the appellants in all four consolidations whose furloughs were upheld
     below.
¶4         On review, the appellants challenge the administrative judge’s finding that
     it is beyond the Board’s scope of review to consider their claim that the agency
     committed an unfair labor practice by implementing the furlough before
     bargaining was complete. PFR File, Tab 1 at 3-4. The appellants assert that, on
     December 4, 2014, before the initial decisions were issued, an arbitrator’s award
     found that the agency committed an unfair labor practice in violation of 5 U.S.C.
     § 7116, “Unfair labor practices,” and a specific provision of the National
     Agreement by unilaterally implementing the 3 furlough days on IRS bargaining
     unit employees prior to the completion of bargaining with NTEU. The appellants
     reason that the agency’s action was therefore not in accordance with law under
     5 U.S.C. § 7701(c)(2)(C) and cannot be sustained. Id. at 3.
¶5         Pursuant to 5 U.S.C. § 7701(c)(2)(C), an “agency’s decision may not be
     sustained . . . if the employee or applicant for employment shows that the
     decision   was    not   in   accordance    with    law.”      To    succeed    in     a
     not-in-accordance-with-law defense, an appellant must establish that there is no
                                                                                          5

     legal authority for the action. See Hamilton v. U.S. Postal Service, 58 M.S.P.R.
     486, 488-89 (1993).        That is, the Board must determine whether the decision
     itself, in its entirety, was not in accordance with law. See Stephen v. Department
     of the Air Force, 47 M.S.P.R. 672, 683 (1991) (citing Handy v. U.S. Postal
     Service, 754 F.2d 335, 337-38 (Fed. Cir. 1985)).                   Here, the appellants
     acknowledge that the basis of the unfair labor practice claim and the arbitrator’s
     decision was the agency’s implementation of the 3 specific furlough days before
     the completion of bargaining with NTEU. 4 PFR File, Tab 1 at 2. The appellants
     have not demonstrated, nor do they even assert, that the agency’s legal authority
     to take the furlough action was an issue presented to the arbitrator or that it was
     the basis for his finding that the agency committed an unfair labor practice.
     Therefore, there is no showing that the arbitrator’s decision established that the
     agency lacked the legal authority to furlough the appellants. Moreover, the Board
     has held that the scheduling of an agency’s furlough action is not a matter within
     the Board’s jurisdiction under 5 U.S.C. chapter 75, Pumphrey v. Department of
     Defense, 122 M.S.P.R. 186, ¶ 13 (2015), and that the implementation of a
     furlough is generally left to the agency’s discretion, see Lopez v. Department of
     the Navy, 121 M.S.P.R. 647, ¶ ¶ 16-17 (2014); Chandler v. Department of the
     Treasury, 120 M.S.P.R. 163, ¶ 9 (2013).
¶6           The appellants also challenge on review the administrative judge’s finding
     that they were not denied due process by the conditions of the oral reply. PFR
     File, Tab 1 at 4-7. Specifically, the appellants argue, as they did below, that the
     7 calendar days they were given denied them a meaningful opportunity to
     respond, that union stewards were overburdened by the number of affected
     bargaining unit members for whom they had to prepare replies and that the result
     was a reply opportunity that was “an empty formality.” Id. at 6. However, the
     Board has found in this context that where the agency proposed furloughing an

     4
         The appellants did not, on review, submit a copy of the arbitrator’s award.
                                                                                  6

appellant, but first provided him with 7 days to respond orally or in writing, the
agency provided him with the required constitutional right to minimum due
process and a meaningful opportunity to respond. 5 U.S.C. § 7513(b); see Ronso
v. Department of the Navy, 122 M.S.P.R. 391, ¶ 13 (2015). To the extent the
appellants argue that, by its action in this regard, the agency committed harmful
procedural error, PFR File, Tab 1 at 7, they have not challenged the
administrative judge’s finding that they offered no evidence that the agency
would have made a different decision in the absence of any such error, ID
at 12-13; see Vena v. Department of Labor, 111 M.S.P.R. 168, ¶ 11 (2009).

               NOTICE TO THE APPELLANTS REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                             U.S. Court of Appeals
                             for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information is
                                                                                  7

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
                                                                 8

                           APPENDIX A
                      Austin IRS Consolidation
                       DA-0752-13-4730-I-1


Alice C. Mandujano                         DA-0752-13-0489-I-1
Benjamin S. Eureste                        DA-0752-13-0493-I-1
Caren M. Kennedy                           DA-0752-13-0497-I-1
Carl T. Davenport                          DA-0752-13-0537-I-1
Carlos E. Cordero                          DA-0752-13-0511-I-1
Carol D. Brinkley                          DA-0752-13-0484-I-1
Deanna M. Solimine                         DA-0752-13-0487-I-1
Edward F. Walker                           DA-0752-13-0505-I-1
Elizabeth A. Lopez                         DA-0752-13-0494-I-1
Gayle A. Griffin                           DA-0752-13-0496-I-1
Howard J. Pearlman                         DA-0752-13-0491-I-1
Irene P. Moore                             DA-0752-13-0482-I-1
Ivania Cabrera                             DA-0752-13-0499-I-1
Janet L. Cook                              DA-0752-13-0514-I-1
JoAnna DeLaCerda                           DA-0752-13-0510-I-1
Juanita Daily                              DA-0752-13-0513-I-1
Judith S. Gonzalez                         DA-0752-13-0495-I-1
Kenton W. Murray                           DA-0752-13-0485-I-1
Lisa E. Bergthold                          DA-0752-13-0515-I-1
Maria L. Murillo                           DA-0752-13-0498-I-1
Mei V. Waugh                               DA-0752-13-0508-I-1
Melvin D. Tealer                           DA-0752-13-0507-I-1
Patrick J. Gallaty                         DA-0752-13-0486-I-1
Ramona Wright                              DA-0752-13-0503-I-1
Rebecca D. Gerstenlauer                    DA-0752-13-0538-I-1
                                         9


Rebecca Y. Bird    DA-0752-13-0483-I-1
Robin D. Green     DA-0752-13-0500-I-1
Rosemary Stone     DA-0752-13-0653-I-1
Tonia R. Gilmore   DA-0752-13-0488-I-1
Tracy L. Bauers    DA-0752-13-0502-I-1
                                                               10

                            APPENDIX B

                       IRS Aguilar Consolidation

                         DA-0752-13-4550-I-1


Charmayne E. Sanford                     DA-0752-13-0534-I-1
Duane W. Schwettman                      DA-0752-13-0535-I-1
Gloria E. Aguilar                        DA-0752-13-0536-I-1
Nora T. Perez                            DA-0752-13-0531-I-1
Rebecca Mendoza                          DA-0752-13-0532-I-1
Scott A. Flatness                        DA-0752-13-0530-I-1
                                                             11

                           APPENDIX C
                      IRS Bodden Consolidation

                        DA-0752-13-4551-I-1


Claudia R. Bodden                      DA-0752-13-0577-I-1
Diane S. Karstetter                    DA-0752-13-0583-I-1
Doris L. Wilson                        DA-0752-13-0581-I-1
Marla J. Dunmire                       DA-0752-13-0578-I-1
Philip T. Reese                        DA-0752-13-0549-I-1
Phyllis L. Johnson                     DA-0752-13-0558-I-1
Rachel Ybarra                          DA-0752-13-0554-I-1
Robin C. Del'Homme                     DA-0752-13-0579-I-1
Rodney J. Bohls                        DA-0752-13-0580-I-1
S. M. Mastenbrook                      DA-0752-13-0552-I-1
Sara A. Esquinca                       DA-0752-13-0574-I-1
Sarah L. Daniels                       DA-0752-13-0582-I-1
                                                                 12

                              APPENDIX D

                        IRS Fleetwood Consolidation

                           DA-0752-13-4552-I-1


Amanda M. Hauboldt                         DA-0752-13-0570-I-1
Brenda Ramirez                             DA-0752-13-0548-I-1
Bridgette L. Payne                         DA-0752-13-0546-I-1
Danielle F. Fleetwood                      DA-0752-13-0571-I-1
Dennis Sims                                DA-0752-13-0572-I-1
Janine Y. Velvin                           DA-0752-13-0569-I-1
Julian G. Riano                            DA-0752-13-0567-I-1
Leslie A. Guna                             DA-0752-13-0568-I-1
Rosa G. Paredes                            DA-0752-13-0547-I-1
Sandra Martin                              DA-0752-13-0566-I-1
Shermanie M. White                         DA-0752-13-0573-I-1
