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112 FLRR-2 47 112 LRP 4707

American Federation of Government Employees, Local 1812 and Broadcasting Board of Governors

Federal Arbitration 0-AR-4800

November 19, 2011

Related Index Numbers

10.050 Reduction in Force 87.004 Contract Interpretation

Ruling

Arbitrator Suzanne R. Butler sustained all aspects of the union's grievance over a reduction in force affecting 16 employees. She ordered a return to the status quo with back pay for all employees.

Meaning

"This case is all about a RIF that never had to happen," the arbitrator stated. It was affected by the "improper motivations" of the director. It was not for lack of work or lack of funds. The agency willfully overlooked achievable cost savings that would have precluded a RIF and failed to negotiate over its impact.

Case Summary

The agency contended it had no obligation to engage in impact bargaining over the RIF because reductions-in-force were already "covered by" the existing agreement and had been since 1992. It also contended that the union failed to prove a past practice of negotiating RIFs. It agreed that it had negotiated over RIFs subsequent to the 1992 agreement, but ended the practice in 2004 when it began to assert the covered-by doctrine. The agency contended that it conducted the RIF in full compliance with the agreement and regulations. It asserted that every employee affected by the RIF was provided proper treatment.

The union contended that the RIF was not bona fide, but instead a "targeted action" to affect certain employees who opposed the agency's director and who engaged in union activity. The union further contended that the agency refused to engage in impact bargaining, thereby precluding the targeted employees from enjoying any of the benefits that might accrue through bargaining. It asked the arbitrator to impose a status quo ante remedy.

The arbitrator found that the agency was contractually obligated to bargain the impact and implementation of the RIF. The arbitrator further found that the agency failed to prove the RIF's legitimacy. The agency failed to show the RIF was taken for any of the reasons specified in regulation.

In sum, the arbitrator found the agency violated the agreement in multiple ways. Among them: it failed to assist employees in finding other positions outside the competitive area; it refused to engage in impact bargaining thereby preventing the union from assisting in finding ways to lessen the RIF impact as had happened in earlier RIF negotiations; it failed to provide RIF training for union representatives; it conducted no cost study; and it failed to seriously consider alternatives.

The arbitrator found that 16 employees were affected by the improper RIF and ordered reinstatement to their prior positions with back pay. The arbitrator explained that a status quo ante order was warranted

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because the union timely requested bargaining over the RIF and the agency's conduct throughout the entire event was "egregiously willful." The impact on employees ranges from "severe to extremely severe." Finally, the agency failed to present persuasive evidence that a status quo ante order would significantly disrupt its efficient and effective operations.

Judge / Administrative Officer

Butler, Suzanne R.

Full Text

Opinion & Award The Issues Arbitrability The Merits Relevant Contract Language Relevant Agency Policy Provisions Relevant Statutory Provisions The Facts Background 2008 GAO Report 2009 GAO Report The Grievance 2007 Term Agreement Negotiations Relating to Article 3 and Article 30 OCB Employees' Efforts to Draw Attention to OCB Mismanagement Management Witness' Testimony Testimony With Respect to Alleged Violations of Other Sections of Article 30 Testimony of Affected OCB Employees The Positions of the Parties The Agency Arbitrability The Merits The Union Arbitrability The Merits The Remedy Opinion Arbitrability The Merits The Agency Violated Its Contractual Obligation to Engage in Impact and Implementation Bargaining As to the Agency's Contractual Obligation to Engage in Impact Bargaining Over a RIF, the Relevant Language of the NLMA Is Not Clear and Unambiguous For the Following Reasons the Agency's "Covered-by" Defense Is Rejected The Agency Violated a Binding Past Practice of Engaging in Impact Bargaining With Respect to RIFs Upon the Union's Request When It Refused to Do So With Respect to the 2009 OCB RIF The Agency Failed to Prove the Bona Fides of the 2009 OCB RIF "Shortage of Funds" "Lack of Work" The Agency Knew or Should Have Known in 2009 That the Management of the OCR in General, and Any Proposed RIF at the OCB in Particular, Required Closer Oversight by Management in Washington. Instead It Either Looked the Other Way or Actively Continued Then-OCR Director Roig's Improperly-Motivated RIF Plan The Agency Violated the NLMA by Improperly Restricting OCB Affected Employees to Assignments in Their Competitive Area and Failing to Make Reasonable Efforts to Comply With All

of the Requirements of the Article 30 Requirements in the NLMA as Well as the BAM Remedy First, Notice Was Given by the Agency to the Union That a RIF Would Be Conducted at the OCB Second, the Union Timely Requested Bargaining Over the Impact and Implementation of Said OCB RIF Third, the Agency's Conduct in This Matter Was Egregiously Willful Throughout Fourth, the Impact of the RIF on the Affected Employees Ranged From Severe to Extremely Severe Fifth, the Agency Failed to Present Persuasive Evidence That a Status Quo Ante Remedy Would Significantly Disrupt or Impair the Efficiency and Effectiveness of Its Operations Conclusion Award

APPEARANCES:

For the Union: Leisha A. Self, Esq.

For the Agency: Elizabeth A. Parish, Esq.

IN ATTENDANCE

For the Union: Tim Shamble, Union Local President, Multi-media Production Specialist; Oscar Mora, Union Steward, TV Production Specialist; Niurka Fernandez, Union Local Vice President, TV Production Specialist; Richard Pantaleo, Int'l Broadcaster, Past Union Secretary; Roxana Romero, Int'l Broadcaster (Spanish), RIFed Employee; Morris Eader, News Editor, past Union Chief Steward; Hernando Barrera, TV Specialist, RIFed Employee; Ivan Lopez-Muniz, Interpreter; Charles Forcucci, TV Broadcast Technical Director; Jose Lacayo, TV Production Specialist; Luis Guardia, Assignment Editor/Reporter, RIFed Employee; Barbara Markov, former Radio Production Specialist, Union Negotiator; Benjamin Davis, former Union Chief Negotiator; Maria Alonso, Human Resources Specialist Miami OCB1

For the Agency: Pedro Roig, OCB Director (Resigned 10/23/10); Mary Jean Buhler, BBG Chief Financial Officer; Harinder Jaiswal, BBG Chief, Labor and Employee Relations; Michelle A. Stewart, BBG LER Specialist; Stephen Ledford, BBG former Chief, Labor/Employee Relations; Gilberto Rosal, OCB Branch Chief; Jorge Luis Hernandez, OCB Director of Broadcast Operations; Mary Poggioli, BBG former Chief, Labor & Employee Relations; Paul Vali, BBG LER Specialist; Irvin Rubenstein, OCB Director of Administration; Carroll Cobb, BBG Senior Human Resources Specialist

Opinion & Award The Issues

The Parties were unable to reach a stipulated submission and authorized the Arbitrator to frame the Issues in this matter after reviewing the record as a whole.

In its post-hearing brief, the Agency proposed that the Issues be framed as follows:

1. Are the issues raised by the Union in the grievance, other than a violation of Art. 30, Sec. 2, and a violation of a past practice of impact bargaining arbitrable? If no,

2. Whether the Union can prove, by a preponderance of the evidence, that the Agency violated the NLMA and statute by failing to engage in impact and implementation bargaining or appropriate arrangements and procedures concerning the Reduction in Force (RIF) which occurred at the Office of Cuba Broadcasting (OCB) in December 2009?

3. Whether the Union can prove, by a preponderance of the evidence, that the Agency violated a past practice of engaging in impact and implementation bargaining concerning RIFs when conducting the RIF in OCB in 2009? If so, what shall the remedy be?

The Union proposed the following:

Arbitrability

1. (a) Whether the Agency timely and properly claimed that the instant grievance is non-arbitrable or non-grievable as required by Article 21? If not, then 1(b) need not be answered and the grievance should proceed on the merits If so, then proceed to 1(b).

(b) Whether the Union's grievance is arbitrable and grievable?

The Merits

1. Whether the Agency violated Article 30, Section 2 of the NLMA (and/or past practice) and/or any other law, rule, regulation or Agency policy and/or regulation by failing to engage in impact and implementation bargaining prior to implementing the 2009 RIF at OCB? If so, what shall the remedy be?

2. Other than failing to engage in impact and implementation bargaining, whether the Agency violated Article 30 of the NLMA and/or law, rule or regulation by failing to appropriately comply with the various requirements, matters and policies when the Agency RIFs bargaining unit employees? If so, what shall the remedy be?

3. In connection with the RIF and/or thereafter in connection with the grievance and arbitration regarding the RIF, whether the Agency violated (and continues to violate) 5 U.S.C. Sec. 7116(a)(5) and (8) and Article 5 of the NLMA by engaging in and/or continuing to engage in the unfair labor practices of refusing to consult or negotiate in good faith with a labor organization as required by Chapter 71 and/or otherwise failing or refusing to comply with a provision of Chapter 71, including reprising against Union officials and witnesses? If so, what shall the remedy be?

4. The Union further seeks that the Arbitrator retain jurisdiction for purposes of implementing the remedy.

5. The Union further seeks that the Arbitrator hear a subsequent petition for attorney fees, should the Union prevail with respect to any backpay award pursuant to 5 U.S.C. Section 5596.

Duly authorized, and after review of the record as a whole, the Arbitrator finds that the Issues are best framed as follows:

1. Is the grievance arbitrable as a whole or only in part?

2. Did the Agency violate the Statute and/or the Negotiated Labor Management Agreement (NLMA), including past practice, in the matter of the 2009 OCB RIF? If so,

3. What shall be the remedy?

Relevant Contract Language

The Parties' 2005 NLMA provides in pertinent part as follows (JX I, emphasis added):

ARTICLE 3 DEFINITIONS

Consultation/Impact Bargaining: The process whereby the Agency seeks and considers the Union's views before implementing changes in personnel policies or regulations which are not negotiable. Before changing such policies and regulations the Agency will provide the Union adequate notice (normally ten calendar days) and reasonable opportunity to request negotiations with the Agency on matters relating to the impact of the changes on the bargaining unit.

ARTICLE 5 EMPLOYEE AND UNION RIGHTS AND RESPONSIBILITIES

SECTION 2. UNION RIGHTS AND RESPONSIBILITIES

b. Formal Discussions. The Union will be given notice and the opportunity to be represented at formal discussions between one or more representatives of the Agency and one or more employees in the union, concerning any grievance or any personnel policy or practice or other general conditions of employment, except as specified in Section 1(f), "Matters of Personal Concern." Before initiating a formal discussion, the manager will notify the Union representative responsible for the affected element. If the Union representative cannot be reached, the manager will notify the Union.

...

d. Officers, Stewards and Representatives. The Agency agrees to respect the rights of the Union and will recognize the duly elected officers, stewards and other representatives of AFGE Local 1812.

ARTICLE 6 MANAGEMENT RIGHTS AND RESPONSIBILITIES

SECTION 1. LAWS AND REGULATIONS -- In the administration of all matters covered by the Agreement, officials and employees are governed by existing or future laws and the regulations of.appropriate authorities; by published BBG policies and regulations in existence at the time the Agreement was approved; and by subsequently published BBG policies and regulations required by law or by the regulations of appropriate authorities.

...

SECTION 3. REGULATORY AUTHORITY In exercising its right to make reasonable rules and regulations relating to personnel policies, practices and procedures, and matters of general working conditions, the BBG will give due regard to its obligation to meet and confer in good faith with AFGE Local 1812. However, nothing in this Section and/or Section 7106(a) of Title of CSRA shall preclude the Agency and the Union from negotiating (a) at the election of the Agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work; (b) procedures which management officials of the Agency will observe in exercising any authority under those Sections; or (c) appropriate arrangements .for employees adversely affected by the exercise of any authority under those Sections by such management officials.

ARTICLE 21 NEGOTIATED GRIEVANCE PROCEDURE

SECTION 7. UNION-AGENCY INSTITUTIONAL GRIEVANCES

a. Discussion. Prior to filing an institutional Grievance (a grievance over a matter of general concern to the Bargaining Unit or a violation of the institutional rights and responsibilities of the parties), the Agency and the Union will discuss the matter and attempt to resolve it informally. The Local Union President and the Chief of the International Broadcasting Bureau Labor and Employee Relations Division or their designees shall make themselves available for such discussions within five (5) working days after notice by the other party of a complaint and a request for discussions.

b. Final Decision. If the Grievance is not resolved within ten (10) working days after the Discussions described in Section 7(a), the moving party may file a formal written grievance with the Director, International Broadcasting Bureau, or the Local Union President, as appropriate. The Director, International Broadcasting Bureau, or the Local Union President will render a final written decision within thirty (30) working days after receipt.

c. Referral to arbitration. If the moving party is not satisfied with the final decision in Section 7(b), the grievance may be referred to arbitration under the provisions of Article 22, Arbitration.

ARTICLE 22 ARBITRATION

SECTION 4. QUESTIONS OF ARBITRABILITY -- Questions that cannot be resolved by the parties as to whether a Grievance is based on a matter subject to the Negotiated Grievance Procedure, including issues of timeliness, will be referred to an arbitrator for decision prior to any presentation on the merits.2 If the threshold question of arbitrability is answered in the affirmative, normally, the parties will refer the merits of the case to the same arbitrator for decision. By mutual consent, the parties may decide to use a different arbitrator.

SECTION 7. ARBITRATOR'S AUTHORITY -- The Arbitrator's decision will be final and binding, except as provided in 5 U.S.C. 7122.

SECTION 8. ARBITRATOR'S AUTHORITY IN DISPUTES OVER THE AGREEMENT -- The arbitrator shall have the authority to interpret and define the explicit terms of this Agreement as necessary to render a decision as set forth, He or she shall have no authority to add or to modify any terms of this Agreement.

ARTICLE 30 REDUCTION IN FORCE AND TRANSFER OF FUNCTION

SECTION 1. GENERAL

a. This Article applies to Reduction in Force and Transfer of Function procedures pursuant to 5 C.F.R. 351 and other applicable laws and regulations.

b. Reduction in Force (RIF) means the release of an employee from his or her competitive level by separation, demotion, furlough for more than 30 days, or reassignment of an employee requiring the displacement of another employee when such action is taken due to lack of work or shortage of funds, reorganization, reclassification due to change in duties, or the need to make a place for a person exercising reemployment or restoration rights.

SECTION 2. POLICY

It is the Agency's policy to minimize the impact of budget shortfalls on the lives and careers of its employees. The Agency will inform all employees as fully and as soon as possible of plans or requirements for reduction in force or transfer of function; consider the ideas of the Union to avoid and/or mitigate the impact of a RIF; and provide assistance to employees adversely affected by a RIF

SECTION 3. ALTERNATIVES TO REDUCTION IN FORCE

a. Cost Study. Prior to conducting a Reduction in Force, the Agency may conduct a cost study to determine whether instituting a furlough or retraining program for affected employees would be more cost-effective than conducting a RIF. If the Agency decides to conduct a cost study it will so inform the Union. Upon completion, a copy of any such conducted study will be provided to the Union.

b. Consideration of Alternatives. Prior to effecting a RIF or transfer of function, the Agency will, whenever possible, consider accomplishing the goals otherwise achieved by a RIF through attrition and cost reduction efforts before abolishing positions. The Agency may also consider alternative means of effecting budgetary reductions, including: transferring work from purchase order vendors to bargaining unit employees; furloughs; and job sharing.

SECTION 4. ACTIONS TO REDUCE THE IMPACT OF A RIF -- When the need to conduct a RIF is evidence (normally when notice is given to the Union), the Agency will make a reasonable effort to take the following actions:

a. Utilize existing vacancies, consistent with the needs of the service, to place employees adversely affected by the RIF.

1. Within the affected competitive area, freeze the filling of vacant positions in the Bureau or equivalent organizational element where the RIF is planned until a decision is made as to whether an adversely affected employee can be placed in the position under RIF procedures. If no adversely affected employees can be placed, filling of vacancies may proceed.

2. If more than one Bureau is affected, the Agency may freeze the filling of vacancies for the entire competitive area. In no case will a RIF in one competitive area require a freeze on filling vacancies in another competitive area.

3. The Agency will not fill a vacant bargaining unit position within the organizational unit affected by the RIF ... until it has compared the qualifications of the employees to be displaced against the requirements of the position. The Agency will also consider redesigning a vacant position.

b. To the maximum extent consistent with the needs of the service, reassign an employee to a vacant position without regard to OPM's standards and requirements for the position if:

1. the employee meets any minimum education requirement for the position; and

2. the agency determines that the employee has the capacity, adaptability, and special skills needed to perform satisfactorily the duties and responsibilities of the position within 90 calendar days of the date of the specific notice.

All waivers of qualification must be properly documented; this documentation will be available to the Union.

c. If the Agency waives qualifications to place an employee into a vacant position, provide the employee with training, which may include either on-the-job or formal training, consistent with Agency resources.

d. Freeze performance appraisals for employees affected by the RIF upon the issuance of general RIF notices, or if no general notices are issued upon issuance of specific notices.

e. Give employees to whom specific notices have been issued priority consideration in applying for other positions in the bargaining unit at the same grade or with no greater promotion potential in accordance with Article 14, Merit Promotion and Staffing only until the effective date of the RIF.

f. Offer retraining to affected employees within the limits of Agency resources, federal training regulations, and the authority of the Agency to waive qualification requirements, and will do so to the extent that the needs of the service can be met and the employee is capable of acquiring new skills.

g. Consider requesting authority from the Office of Personnel Management to offer early retirement when the minimum eligibility requirements established by regulation are met.

h. Where applicable, provide employees with information concerning early retirement with discontinued service annuity. There will be no coercion to influence an employee's decision to retire.

SECTION 5. NOTIFICATION

a. Preliminary Notification to Union. When it is anticipated that transfer of function out of the competitive area or reduction in force affecting bargaining unit employees will be necessary, AFGE will be given preliminary notification. Normally, this notification will be at least three months in advance of the anticipated implementation date, unless circumstances dictate otherwise and will include the following information:

1. The reason for the reduction in force or transfer of function;

2. The approximate number of employees who may be affected initially;

3. The competitive areas and levels that may initially be involved in a reduction in force; and

4. The anticipated effective date of the action.

b. At least 15 calendar days prior to issuing the specific notice to employees of a RIF or transfer of function, the Agency shall, upon request, furnish the Union any relevant and available documents or information concerning the RIF or transfer of function, including a list of all vacant bargaining unit positions in the affected competitive area(s) which the Agency is actively recruiting to fill, identified by grade, pay status, and title.

c. Prior to the issuance of specific notices, the Agency will grant official time to mutually agreed- upon Union representatives for the purpose of RIF training. Where possible the Agency will brief such representatives on RIF procedures.

...

SECTION 6. OFFER OF POSITION

a. When possible, an offer of a reasonable change of position and the effective date of the change will be included in the notice to the employee. Every effort will be made to reassign an affected employee to the best position for which he or she qualifies. If the position offered is at a lower grade than that of the employee the notice will advise the employee of his or her entitlement to grade and pay retention. If the position offered is outside the competitive area, the notice mill advise the employee of his or her entitlement to a reasonable amount of official time for relocation.

...

b. Employees adversely affected by a RIF or transfer of function may request assignment to another position which they believe constitutes a better offer and to which they are entitled by regulation. Any such request shall be answered in writing within ten calendar days. Such requests will not affect an employee's entitlement to other statutory appeal rights, nor does it extend the deadline for responding to the Agency's offer.

c. Documentation of all written offers of position under this Section will be available to the Union.

SECTION 7. COMPETITIVE AREAS

The competitive area for the Agency employees shall be the local commuting area of each locality in which the Agency has one or more offices, such as Washington, D.C., Greenville, N.C. and New York, N.Y.3 Each competitive area includes all Agency elements in that area.

SECTION 8. COMPETITIVE LEVELS AND RETENTION REGISTERS

a. The Agency shall establish competitive levels and retention registers in accordance with applicable OPM regulations. All lists, records and information pertaining to a RIF shall be maintained by the Human Resources Office for at least one year following the effective date of the RIF.

b. At least two working days before the issuance of initial specific notices. The Union will be provided a copy of the annotated register(s) to be used to issue the specific notices. Amended or revised retention registers will be provided to the Union as soon as possible.

c. Retention registers will include

1. the employee's tenure group, competitive level, and original service date;

2. the ratings of record used to compute credit for performance;

3. the amount of credit for performance; and

4. the adjusted service date (service computation date).

d. Employees and/or their designated representatives will be permitted to review the retention register so that the employee may consider how the competitive level was constructed and how the relative standing of the employee was determined. This includes the right to review the complete retention registers for other positions that could affect the composition of the employee's competitive level and the determination of the employee's assignment rights.

SECTION 9. RELEASE FROM COMPETITIVE LEVEL

a. Exceptions to Order of Release. Exceptions to the order of release may be made in accordance with OPM regulations. Such exceptions will be clearly documented, and documentation will be available to the Union for review.

b. Union Representatives. On the recommendation of the President of AFGE 1812, and consistent with law and Government-wide rules and regulations, the Agency may temporarily except from the RIF order of release for up to 90 days Union representatives under Article 8 of this Agreement who are scheduled for separation due to a RIF.

c. For all actions under this Article, bump and retreat rights shall be provided for employees in each group and subgroup.

SECTION 10. ASSISTANCE FOR DISPLACED EMPLOYEES

a. Reemployment Priority List. The Agency will establish and maintain a reemployment priority list for employees separated under the provisions of this Article. When the Agency decides to fill vacancies, it will hire first from this list before seeking outside candidates for appropriate positions coming open during or after the RIF. An affected employee's declination of an offer of a particular position will in no way

abrogate the employee's right to further consideration, under 5 C.F.R. 330.203, for other positions for which he or she may be qualified, unless the employee requests removal from the RPL.

b. Employment Counseling. The Agency will endeavor to find employment within the commuting area for employees separated as a result of a RIF or transfer of function. The Agency will maintain and make available a list of Government-wide vacancies. Affected employees are entitled to a personal interview with a Human Resources Officer to discuss separation, displacement assistance and related issues.

c. Consistent with the Privacy Act, the Agency will provide information to OPM and to appropriate State employment and benefits agencies. Employees will be afforded the opportunity to waive Privacy Act rights to facilitate transfer of this information.

d. Relocation. Where applicable, the Agency may agree to grant official time and pay relocation, expenses as required by appropriate regulation.

e. Official Time. Affected employees will be provided reasonable official time and access to Agency facilities for the purposes of obtaining employment counseling, preparing resumes or SF 171's and attending job interviews prior to the effective date of the RIF.

Relevant Agency Policy Provisions

The International Broadcasting Bureau, Manual of Operations and Administration ("MOA" or "BAM") provides in pertinent part (UX 44, emphasis added):

PART V-A PERSONNEL (DOMESTIC), 700 SEPARATIONS

REDUCTION IN FORCE

761.3. B. RIF will be administered in a manner which will effect the necessary reductions in personnel strength with a minimum of disruption to functions and of dislocation to employees. The following are some methods that may be used to accomplish substantial savings and avoid the necessity for a RIF or reduce the number of employees affected. The list is not all-inclusive and does not cover cost-savings techniques unrelated to personnel management. The actions may not be appropriate or even possible in all situations.

(1) Freezing vacancies when reductions in force are anticipated, and assigning employees out of a unit for which RIF is planned, into vacant continuing jobs on a Broadcasting-wide basis.4

(2) Detailing employees on a reimbursable basis to other agencies.5

(3) Separating temporary employees and re-employed annuitants.

(4) Requesting special authority from OPM to offer voluntary early retirement when Broadcasting may undergo a major RIF which meets OPM requirements.

(5) Meeting with employees eligible for optional or involuntary retirement to explain the benefits.

(6) Making maximum use of the permissible waiver of qualifications in reassignments in RIF.

(7) Giving each employee affected by RIF a personal interview to discuss individual problems and provide special assistance when practicable.

8) Suspending appointments, promotions, and reassignments to positions at any competitive level in which an employee receives a RIF notice or in which an employee is offered a position based on "bumping" or "retreat" rights, or in anticipation of the issuance of RIF notices.

(9) Making every effort to reassign employees affected by RIF to a reasonable alternative position.

(10) Seeing up special programs to assist employees to find jobs in other government agencies or in private employment on an [sic] Broadcasting-wide basis.

761.5 Responsibilities

a. The [Agency] Office of Personnel is responsible for coordinating and consulting, as needed, given the Broadcast-wide impact of a RIF, in: .... (5) Negotiating with the exclusive labor organization on the impact and implementation of a reduction in force, and for making available to the representative RIF records including retention registers; ...

761.6 RIF Planning

b. The Office of Personnel will determine in concert with Service Heads, or Office Directors whether personnel involved can be reassigned to vacancies in other elements, whether or not to impose a hiring freeze, and how extensive a RIF would be. If it appears that a RIF is inevitable and will affect other organizational elements, the personnel office will immediately inform the other offices and work together in a coordinated team effort through the remainder of the RIF. The personnel office will inform the exclusive representative of the RIF, providing all available information.

Relevant Statutory Provisions

5 U.S.C. Section 7116 of the Federal Labor-Management Relations Statute (hereinafter "the Statute") provides in pertinent part:6

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency --

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;

(8) to otherwise fail or refuse to comply with any provision of this chapter.

The Facts

The Parties to this dispute are the Broadcasting Board of Governors (BBG or Agency) and the American Federation of Government Employees, Local 1812. The Office of Cuba Broadcasting (OCB) is a subcomponent of the BBG located since 1996 in Miami, Florida, operating Radio and TV Marti stations broadcasting to the public in Cuba. The Parties stipulated that the OCB and the Voice of America (VOA) are separate entities under the International Broadcasting Bureau (IBB) with separate Directors, but the bargaining unit represented by the Union consists of employees in both the VOA and the OCB.

This case involves both the bona fides of the December 19, 2009 RIF of 18,7 reduced to 16, OCB employees, as well as the Agency's refusal to engage in impact and implementation bargaining over it. The Union contends that the RIF was not caused by a "lack of funds" or "lack of work" and that it was implemented in violation of the NLMA in several ways.

To understand this complex case, it is necessary first to lay out the relevant bargaining history. In summary form, it is as follows:

Background

The Parties have engaged in collective bargaining since the 1970's. The language of Article 3 and Article 30 Section 2 has remained unchanged since the 1993 NLMA despite protracted efforts by both Parties to change it during negotiations for the 2005 NLMA.

Over the years, the Agency has implemented several reductions-in-force (RIFs). Specifically, from 1994 to 2001, the Parties successfully negotiated the following RIF Implementation and Impact Agreements (UX 7):

11/17/94 RIF in Bethany, Ohio and Washington, DC 4/23/96 RIF Procedures for Non-US Citizens 7/4/96 RIF and Relocation of OCBfn8 8/16/00 RIF involving the USIA 5/22/01 RIF involving the European Language Services

In April of 2003, Mr. Pedro Roig was hired as the Director of the OCR (Mr. Roig resigned in October of 2010 shortly before the instant arbitration hearing began.)

On May 27, 2004, then-Director Roig wrote to Union Vice President Niurka Fernandez Arteaga in relevant part as follows (UX 42, emphasis added):

This responds to your correspondence dated May 11, 2004, where you requested information based on what you 'understand' to be a reorganization of TV Marti. Please be advised that there is neither a plan to reorganize, nor a reorganization of TV Marti. In the event that such a decision is made, however, we will notify the Union and give it an opportunity to provide bargainable proposals on the same if that reorganization impacts bargaining unit employees. As such, your request for information and your proposed ground rules for negotiations on this issue are premature. I note that the Agency has no obligation to bargain on the substance of any management decision to reorganize; the obligation exists only with respect to procedures and appropriate arrangements to implement the same.

In October of 2006, pursuant to CAFC reports recommending that the OCB explore additional transmission methods to further efforts to break the information blockade in Cuba, the OCB launched AeroMarti, which consists of two Gulfstream propeller airplanes that OCB leases to broadcast television signals to Cuba. In December of 2006, the International Broadcasting Bureau (IBB) leased airtime on TV Azteca, a commercial television station in Miami that is carried on the DirecTV satellite. According to the GAO, in FY 2008, of the $8.5 million allocated for transmissions, $6.1 million were allocated to AeroMarti TV. (UX 42)

2008 GAO Report

Several federal entities, including the BBG, IBB, the General Accountability Office (GAO), and the State Department Office of Inspector General (OIG), provide oversight of OCB operations.

In July of 2008, the GAO submitted a Report to the Chairman, Subcommittee on International Organizations, Human Rights, and Oversight, Committee on Foreign Affairs, House of Representatives titled "BROADCASTING TO CUBA: Weakness in Contracting Practices Reduced Visibility into Selected Award Decisions." The GAO found in pertinent part as follows: (UX 41)

IBB's approach for awarding the Radio Mambi and TV Azteca contracts did not reflect sound business practices .... by using other than full and open competition ...

OCB's practices for soliciting, evaluating, and selecting its talent contractors provide limited visibility at key steps. OCB issues quarterly announcements ... OCB does not require, however, that managers document instances in which resumes were received from sources outside these processes, such as when a contractor is recommended by an OCB employee ...

GAO recommends that the Broadcasting Board of Governors reinforce existing policy and guidance to plan for and employ appropriate competitive approaches, adequately document key decisions, ensure the timely involvement of stakeholders, and improve the clarity and usefulness of IBB's guidance. While it did not formally comment on the recommendations, BBG indicated it is taking steps to implement them.

2009 GAO Report

In January 2009, the GAO submitted another such Report titled "BROADCASTING TO CUBA: Actions Are Needed to Improve Strategy and Operations." This Report stated in pertinent part (UX 42, emphasis added):

... While IBB officials report that the quality of OCB programming has improved in recent years, IBB reviews since 2003 have recommended improving adherence to certain journalistic standards, particularly in the areas of balance and objectivity. IBB's process provides useful feedback, but we found weaknesses such as limited training and operational guidance for staff conducting the reviews. ...

Despite some efforts by BBG and OCB, oversight entities have identified problems such as poor communication by OCR management and low employee morale. For example, OCB lacks formal mechanisms for communicating with or obtaining information from employees.

Despite some efforts by BBG and OCB, some oversight and management problems persist. ... For example, the State OIG has performed three inspections and audits related to OCB since 1999, each of which resulted in multiple recommendations. These various oversight efforts have identified three main categories of problems in recent years: poor communication by OCB management, low employee morale, and allegations of fraud and abuse. For example, the State OIG has reported on OCB employees' desire to improve communication, and a recent Office of Personnel Management survey found that a majority of OCB employeeshave specifically expressed frustration with the lack of any formal systems for disseminating information from management to staff or for staff to provide input to management. In responding to recent audit reports, BBG and OCB have taken steps to address nearly all of the auditors' recommendations.

The language of Articles 3 Definitions and 30 Reduction in Force and Transfer of Function has remained the same since the 1993 NLMA.9 (UX 8 ("the Blue Contract," and TX 2 ("the White Contract")) It was then Union Chief Negotiator Benjamin Davis' testimony that the 1988 NLMA's language regarding RIFs10 was unsatisfactory to the Union, and, since there was concern that RIFs might be coming soon, the Union wanted language in the 1993 NLMA that would make it clear that the Agency was contractually obligated to enter into impact and implementation bargaining before it imposed a RIF. He recalled "spend[ing] a lot of time in discussion with [Agency Negotiators] Stephen Ledford and Jim Hagan" and he believed "it was clear what our intent was in putting that language in and they understood what we were doing and agreed to it." (Tr. 11, p. 18)

Mr. Davis attested further (Tr. 11, p. 13):

Q. Did you accomplish that goal [of making it clear the Agency was obligated to engage in impact and implementation bargaining before imposing a RIF]?

A. Yes, I think we did ... What we basically did is in Section 2 of Article 30, we incorporated, we brought over some existing language from the definition section on consultation and impact bargaining and

applied that specifically to the RIF situation, specifically stating that management will consider the ideas of the union to avoid and/or mitigate the impact of a RIF.

...

Q. [Why] didn't you just say the agency has an obligation to bargain the impact and implementation of RIFs?

A. recollection is ... we thought it was helpful to use [definition] language ... that had been in previous agreement and thought that that would probably be a bit more palatable to the agency as well.

Former Agency Chief Negotiator Stephen Ledford's testimony states in pertinent part as follows (Agency's Surrebuttal Proffer, emphasis added)

The negotiations for the 1993 contract occurred between July and September 1992, including Article 30 dealing with Reductions in Force. With respect to RIFs, Mr. Ledford knew that Agency management did not have any control over a funding reduction, it was a decision made by the Administration and Congress and the funds would be gone as of September 30. If the funding reduction required a RIF, as USIA's budget was over 90% personnel salaries and benefits, that process was laid out in OPM regulations. When the RIF process started, it was like dominoes falling, one part of the process led to the next. With that in mind, in the NLMA, he did not want to commit management to any affirmative acts that it had ho control over. Moreover, since the RIF process was governed by regulation, there was little leeway in what could be done once the RIF procedures were invoked, so the Agency wanted to incorporate what could be achieved through I & I bargaining in Article 30. For other issues, management would be happy to listen to any ideas it had to reduce the impact of a RIF, but no more than that.

... Although there were additional proposals between the parties on Article 30, it was the Agency's language in Section 2 -- Policy that was incorporated into the 1993 contract. (AX 60) At no time did Mr. Ledford believe or agree that the language in Section 2 -- Policy created a contractual obligation to bargain the impact and implementation of a RIF.

On March 3, 2009, with respect to negotiations over the Master Agreement (hereinafter "term agreement bargaining"), the Union filed an Institutional Grievance alleging in pertinent part (UX 5, emphasis added):

The Agency (BBG) and AFGE Local 1812 have been engaged in negotiating portions of the parties' Master Agreement since September 3, 2006. Management abruptly cancelled negotiations in May 2007. In response, the Union filed an Unfair Labor Practice charge ... The Agency agreed to resume negotiations in January, 2008 ... [Since then] Management has consistently refused to meet at the days and times agreed to.

... In January 2009, the Union contacted Harinder Jaiswal, Chief of Labor Relations, about negotiations. He indicated that the Agency would not meet with the Union for the purpose of contract negotiations until they had hired a replacement for Jurmell James ... This argument by management cannot stand. Even if the Agency had no Labor Relations Specialists it would still have an obligation to bargain. In February 2009 the Union contacted Mr. Jaiswal but again it became apparent that the Agency was not willing to meet with the Union in accordance with parties' ground rules. ...

REMEDY/RELIEF SOUGHT

AFGE Local 1812 seeks a posting with an order that the Agency meet and negotiate with the Union on the original schedule agreed to in the ground rules. The Union also seeks that the Agency agree to the Union's offer of completing Article 23 and then rolling over Articles 3 and 30 into another 3 year agreement along with the Articles that were finished between January 2008 and the present. ...

On August 14, 2009, Acting IBB Deputy Director Danforth Austin's "Decision Regarding March 2009 Institutional Grievance -- Negotiations During NLMA Term" stated in pertinent part (AX 5, emphasis added)

... The Union asks that I require that the Agency, among other things, complete negotiations as to Article 23 of the NLMA. The Union's request is moot in that, one week prior to the Union's July 31, 2009, notice to again pursue the grievance; the Agency had already notified the Union as to its intent to renegotiate certain articles of the NLMA. Article 23 is one of the articles to be renegotiated.

On September 8, 2009, the Union informed the Agency of its intent to raise the above-referenced grievance to arbitration,11 stating that it believed the Agency's response "and other documents indicate that this was a deliberate tactic in an attempt to 'run out the clock' on a perceived deadline for the negotiations in order to renege on agreements that had been reached between the parties." (AX 5)

The Grievance

On November 4, 2009, the Union filed the following Institutional Grievance and attachments (JX 2)12

Date: November 4, 2009

Employee: All affected bargaining unit employees

Union Representative: Timothy Shamble

This is an Institutional Grievance filed in accordance with Article 21, Section 7 of the Negotiated Labor-Management Agreement (NLMA) between the Broadcasting Board of Governors (BBG) and the American Federation of Government Employees Local 1812 (AFGE Local 1812).

BACKGROUND

A provision has been included in the parties' NLMA since 1994 which requires the Agency to engage in consultation/impact bargaining over RIFs. The NLMA defines "Consultation/Impact Bargaining in Article 3 as:

The process whereby the Agency seeks and considers the Union's views before implementing changes ... which are not negotiable ... [T]he Agency will provide the Union adequate notice (normally ten calendar days) and reasonable opportunity to request negotiations with the Agency on matters relating to the impact of the changes on the bargaining unit.

Section 2 of Article 30, the Article addressing RIFs, the NLMA states in relevant part:

The Agency will ... consider the ideas of the Union to avoid and/or mitigate the impact of a RIF.

This language was contained in the 1994 NLMA and was included -- unchanged in the parties' 2005 NLMA. The language has consistently been interpreted by the Agency to require negotiations regarding the impact of a RIF. Until the situation giving rise to the instant grievance, the Agency has never refused to negotiate the impact of RIFs with the Union.

On August 4, 2009, the Broadcasting Board of Governors (the Agency) sent preliminary notification to AFGE Local 1812 (the Union) that it anticipated that a reduction-in-force (RIF) would be necessary in the Office of Cuba Broadcasting (OCB). The letter was signed by Harinder Jaiswal the Chief of the Agency's Labor Relations Office. (See attachment A).

In response the Union sent an email to Mr. Jaiswal giving the Agency preliminary notice that the Union would seek to mitigate the impact of a RIF on any bargaining unit employees at the OCB in accordance with Article 30 Section 2 and Article 3 of the NLMA. (See attachment B)

On November 4, 2009, Mr. Jaiswal responded to this email claiming that the Agency had Congressional approval to "take the administrative steps necessary to begin implementing the RIF" (See attachment C). Later that day, the Agency also sent a letter to the Union correcting the letter of August 4, 2009 and informing the Union that the RIF will be conducted in accordance with Article 30 of the NLMA. (See attachment D)

The Union immediately responded to the Agency with an email that included an information request and informed the Agency that the Union would provide ground rules for impact negotiations regarding the RIF and a demand that the Agency refrain from implementing the RIF until the Agency had met its bargaining obligation. (See attachment E) The Union provided those ground rules to the Agency on September 11, 2009. The Union again included a demand that the Agency refrain from implementing the RIF until the parties conducted impact negotiations. (See attachment F)

On September 14, 2009, the Agency sent a letter to the Union giving the Union the annotated retention registers and informing the Union that the specific RIP notices would be delivered on September 16, 2009. (See attachment G)

On September 15, 2009, the Agency responded by letter and claimed that the Agency did not have an obligation to bargain the impact of the proposed RIF. (See attachment H)

On September 16, 2009, the Union responded to the Agency's letter of September 16, 2009, and noted for the Agency that impact bargaining was required under the NLMA and that the Agency has a long-standing past practice of engaging in impact bargaining over proposed RIFs (See attachment I) The Union sent another more detailed letter on the same subject on September 22, 2009. (See attachment I)

On October 2, 2009, the Agency once again denied that it had any obligation to engage in impact bargaining over the proposed RIF. (See attachment K)

VIOLATIONS OF LAW/CONTRACT

By its actions the Agency is on a continuing basis violating 5 U.S.C. Sec. 7116(a)(5) and (8); NLMA Article 5 Section 2(b) and (d); NLMA Article 6 Section 1 and 3; NLMA Section 30; and its past practice of engaging in impact negotiation prior to implementing RIFs.

REMEDY/RELIEF SOUGHT

The Union seeks a decision that requires the Agency to engage in impact bargaining over the proposed RIF. The Union also seeks a posting by the Agency acknowledging its failure to abide by the NLMA and its own past practices as well as a statement that it will not fail to do so in the future. The Union seeks reinstatement and Back Pay for all employees that were separated before the Union could fully negotiate and reach agreement on impact and implementation bargaining over the RIF. In addition, the Union seeks all other remedies allowed by law and/or under the collective bargaining agreement.

Chief of Labor and Employee Relations Harinder Jaiswal testified in support of the Agency's position that only Article 30 Section 2 is arbitrable that, due to "lack of specificity" in the grievance, the Agency was unable to discuss, never mind remedy, any other alleged violations on its part during the implementation of the 2009 OCB RIF. Asked what his experience had been in "dealing with these grievances and the entire discussion process that might culminate in the filing of a grievance as to how the issues are stated," he responded (Tr. 1, pp 27-21):

It has to be with specificity. This grievance was filed in November. Employees were separated in December. I'm not sure how the union could raise concerns with things that haven't even happened yet. If there was a concern, it wouldn't have manifested itself in November because the agency was following the contract and implementing the RIF. So to say that you violated the entire article is nonsensical because we are not even at that stage yet. It's not just background. If there are violations or things that were not done with this contract, the union has an obligation to let us know with specificity so that we can correct it, but its almost as if it's like a prospective grievance into the future when that hasn't happened yet. So with this November 4th grievance, we can only address what is put before us and correct that. Any other concerns or violations will be outside the scope of that. It would be a matter of guessing as to what the union feels was not followed. It just wouldn't make any sense. That's not how it's done. So if the union has a concern with an article, they let us know this is what you are not doing and we do it, we try to, we follow the contract. Then to bring in something else in the contract, where they haven't told us it has been violated, how can we address it? In following this RIF article, there are things that need to be done prospectively as the RIF is going on and to say the entire contract is violated, it just doesn't make any sense because we haven't reached that stage yet.

Q. Do you recall whether the agency raised the issue of the scope of .. the article 30 challenge prior to today with the union?

A. No. The only -- I feel as if I'm hearing things for new for the first time when we did the information request. The information request asked for so many things that were encompassed in this article and, in gathering that information to give to the union, I felt as if that stuff was not grieved.

It was Union President Timothy Shamble's testimony that the instant grievance was as "specific" as other similar institutional grievances (UX 4, 5) and that by using the word "continuing" the grievance made clear that it was intended to cover all past/present/future violations of Article 30 as a whole. Furthermore, he attested, he had had extensive discussions with Labor Relations Chief Jaiswal before the instant grievance was filed wherein he had expressly objected to OCB management efforts "to shield certain people from the RIF." (Tr. 1, p. 83)

Q. You said that you were concerned about the agency moving employees and were those employees who would otherwise have been part of the RIF?

A. As we understood it, yeah. It looked like they were moving people out of where they were going to target the RIF into different areas of OCB.

Q. Why is that a negative thing for bargaining unit employees? It benefits those guys, right?

A. Yeah. It benefits those that they move out and it takes away the seniority of some employees in that particular area.

Q. What else did you talk about preliminary to the grievance?

A. We talked about the lack of funds, that we didn't think there was an actual lack of funds because there was no budget, And during different parts of this discussion we were on a continuing resolution. There was no actual budget at that point. [In addition] we discussed the possibility of placing people from OCB that were going to be RIFed into positions in the [VOA] Latin American Service [pursuant to NLMA Article 30, Section 4(e).]

2007 Term Agreement Negotiations Relating to Article 3 and Article 30

Union President Timothy Shamble testified that he was the Union chief negotiator and Mary Poggioli was the Agency chief negotiator during the 2005 Term Agreement negotiations over outstanding articles

including, but not limited to, Articles 3 and 30.0n February 8, 2007, the Agency presented the Union with a Management Counterproposal that changed the language of the Definitions article to read in pertinent part as follows (UX 9, emphasis added):

Impact and Implementation Bargaining: Negotiations regarding procedure management will follow in implementing decisions when such decisions ... concern a change in conditions of employment not covered by the Agreement. ...

The Union's Counterproposal of the same date left the definition of Consultation/Impact Bargaining the same as it had been in every NLMA since 1993, the Union rejected the Agency's "covered-by" proposal, and the original language remains unchanged in the 2005 NLMA. (UX 10, JX 2)

According to Mr. Shamble, negotiations over Articles 3 and 30 came to a head as follows: (Tr. 2 p. 58ff):

... Mary Poggioli called us out of the blue and said she wanted to meet with us immediately. This was in the morning. I don't remember the date, sometime in May [2007] When we got there, she said, Okay, I want to finalize article 30. I want to get this done. She said what she wanted was a closed RIF article. She said, "What would I need to give you to give me a closed RIF article?" What she meant by that was one that she could, she wouldn't have to bargain RIFs, that she could just be covered-by and follow Article 30 whenever they wanted to RIF. So we said, Okay, we would want the same provision that you gave to the other union. That's the radio broadcast technicians, that is AFSCME Local 1418.13 She got very angry at that.

On May 31, 2007, Agency Negotiator Poggioli informed the Union that "in view of the union's latest demand for a no-rif clause" she regarded it as "futile to continue negotiations," and she would be contacting the FMCS to request a mediator. Ms. Poggioli then left the Agency. Articles 3 and 30 continued to be rolled over unchanged from the 1993 NLMA. (UX 15)

It was former Agency Negotiator Mary Poggioli's testimony that term agreement negotiations over the 2005 NLMA started off "badly" in October of 2003, were generally "dysfunctional" (due to some "difficult" members of the Union's bargaining team), were not helped by a mediator's efforts to get the Parties to use package bargaining, instead of word-by-word bargaining. Finally, in December of 2004, it was decided to take a one-year hiatus rolling over the unresolved articles, e.g. Article 30. When the Parties returned to the table in March of 2007, the Union's proposals for Articles 3 and 30 were the same as the existing language. "Because the Union was focusing on 'considers' and they thought 'considers the ideas of the union' meant bargaining, and we wanted it clear, as we have been stating now for three years into the bargaining that we wanted a closed article with no bargaining. Therefore, if there was any confusion ... then we took away that language and put in new language to clear up that confusion." (Tr. 9, p. 55) After exchanging over fifty (50) proposals and counterproposals involving Articles 3 and 30, to no avail, impasse was declared and no efforts to change the rolled-over language was made thereafter.

Ms. Poggioli acknowledged that the Parties successfully impact bargained over RIF's in 94, 95, 97, 2000, and 2001. That was done only because the Agency "believed we had to. The status of [FLRA] case law at that time ... was that the union had the right to rebargain provisions of its collective bargaining agreement basically any time it wished to, that the covered-by defense had been collapsed into [ ] that the union gets to bargain unless it has waived its right to bargain. Cases came out starting in '92 changing that interpretation ..." (Tr. 9, p. 84-87)

Then we came to the year 2000 and, at that time, based on the Authority's guidance and case law at the time, we could have refused to bargain, saying it is a matter covered by the collective bargaining agreement. But there is a provision that the parties can mutually agree to bargain this. We agreed that we would bargain the 2000 RIF. Based on our history of [impact] bargaining, all this bargaining happened quickly and they were short ... and had not delayed implementation [of the RIF] by any significant amount. We again agreed that we would bargain the 2000 RIF.

In 2000, bargaining became a lot more complex. We had to negotiate ground rules, the union had a period of time to name its team, had a period of time to adjust their schedules, they had a period of official time to work on proposals and then there was the actual bargaining. So although the union contract envisioned a period of 90 days before implementation for all that to happen it actually took 35 weeks so we were up to 245 days delay in implementation.

In 2001, we had an almost back-to-back RIF. We no sooner completed bargaining in 2000 and we were back at the table again,. [and] the union wanted to bargain [the terms reached with respect to the 2000 RIF] all over again. ...

The resulting agreement was now, I think, 56 sections and it resulted in a 32 Week delay. ...

At this point, we said we will never negotiate with the union again. So it came to 2004 and we asserted our covered-by defense, we did not negotiate with the union, we implemented the RIF in accordance with the contract. In 2007 we did the same thing.

In January of 2008, term agreement negotiations recommenced with Jurmell James followed by Harinder Jaiswal succeeding Mary Poggioli as Agency chief negotiators.

With respect to the matter of the Agency's obligation to engage in impact and implementation bargaining over the 2009 OCB RIF, Union President Shamble testified (Tr. 2, pp. 24-26):

Q. Can you explain how that [Article 3] is connected with Article 30 Section 2 in that sentence?

A. Yes. The way the Agency will consider [the Union's] idea[s] is through consultation impact bargaining.

Q. Can you tell the arbitrator, Mr. Shamble, how it is that you came to understand that this term, that Article 3 and the definition of consultation impact bargaining, together with Article 30, Section 2, meant that the agency had an obligation, pursuant to this contract, to bargain the impact of a RIF?

A. I had been aware of various RIFs that the agency had bargaining in the past in my position as an executive board member, and then in the first OCB RIF when they moved to Miami [in 1996]. I was actually on the bargaining team. For the RIF. So we had bargained that. And then in the European RIF, the first European RIF, I was negotiating that RIF14 ... That was the first time I was the lead negotiator for that. I was negotiating with Mary Poggioli. ... Those were really tough negotiations and she got frustrated at one point and told us, the [union] bargaining team, we are just doing this because we [the Agency] are nice. We don't have to do this if we don't want to. She claimed that it was because of the covered-by doctrine. I had never heard of it before so I had to go look it up. Jim Hagan15 was [Agency] chief of labor relations at that point. I talked to Jim. We were talking about ... how frustrating these negotiations were and why they were taking so long. They wanted to RIF and they weren't able to effectuate the RIF until we had an agreement.16 I told him, Well,

part of the problem is, as far as we can tell, Mary is ready to get up and leave because she is telling me this is covered-by. Jim told me ... No [and] showed me this provision [Article 30 Section 2] ... and then showed me the definition, Article 3 ... He told me [the Agency] was obligated to bargain according to the contract.

Mr. Shamble testified further that the Union did not always request impact and implementation bargaining with respect to every planned RIF, but, whenever it did request it, until the 2009 OCB RIF in question, the Agency invariably entered into good faith bargaining, and agreements were reached before the Agency implemented the RIF.

OCB Employees' Efforts to Draw Attention to OCB Mismanagement

It was Union Steward Oscar Mora's testimony that a core group of five (5) OCB employees, Niurka Fernandez, Marta Yedra, William Valdez, Luis Guardia, Chuck Forcucci and himself "basically spearheaded this whole going to Congress and talking to the media, writing newspapers [and cooperating with the I.G. and GAO investigators] ... and we knew we were going to be RIFed." (Tr. 11, p. 269) Ms. Fernandez survived the RIF by bumping; he survived, he believed (even though he had been told his name was on a closely-held RIF list), because "out of necessity, they put me back as director because the person that replaced me had to go to the hospital ... I was the only director in the building. Because of that I started directing again." (Tr. 11, p. 271)

Briefly summarized, Mr. Mora's testimony was that early in 2009 Director Roig and Christina Sanson (a close personal friend) carefully reorganized/reassigned the professional staff at the OCB in such a way that: 1) no Producers (Sanson's department) were RIFed, 2) favored employee(s) were advised to apply and were reassigned to the Internet; 3) disfavored TV International Broadcasters and Technicians, including those who had been outspoken critics of Mr. Roig and/or who were active Union members17 were targeted for the RIF, and 4) all of this was done with the intention of bringing back favored (but less senior) employees as POVs (or hiring in a new, full-time GS 14 position18 tailor-made for him) soon after they had been RIFed.

Management Witness' Testimony

Former OCB Director Pedro Roig19 testified that he was hired as OCB Director in 2003. In February of 2009, he received an e-mail message from Danforth Austin saying that Janet Stormes "says she's looking for about $5 million in savings from OCB in [FY] 2010. I told her I thought your all-news program format and other good ideas should yield that. Was I wrong?" (AX 6) According to Mr. Roig (Tr. 4, p. 106)

Our answer to Dan Austin was no. This is because here he is referring to conversations that we have on radio but I would answer to this was I was right, I was wrong. Yes, he was wrong. We couldn't, we just reformat on radio, near that huge amount so our answer was no. ... So I instructed Jorge Luis Hernandez, as [OCB] Director of Operations, to start thinking on how we could meet something close to this amount of money ... He came with ideas and a plan ... basically a reduction on ... going on radio on an all-news format, reducing the TV news from half hour to five minute updates every half hour, reducing the plane flying time on half an hour and reducing the amount of contractors available ... that was the basic plan.

On cross examination, Mr. Roig conceded that he never met with the Union to try to find ways to save jobs, that he did nothing to help the affected RIFed employees to find jobs, that he did not recall requesting a Cost Study before deciding which positions to eliminate, that the AeroMarti plane itself cost approximately $5 million to operate and the GAO had said there were other more cost-effective ways of transmitting the TV signal and that the GAO had also found that there were significant problems with OCR's contracting practices. On the latter point, he attested (Tr. 5, pp. 83-84):

Q. And Alberto Mueller is a friend of yours, is he not?

A. Yes

Q. The Agency contracted with Mr. Mueller to provide his services approximately three weeks after he was RIFed; isn't that true?

A. I don't recall the exact day but he was rehired ... He was RIFed and he was among those in Radio Marti that returned as POVs.

Q. He was a pretty new employee, wasn't he?

A. I don't recall how long he was there.

Q. Mr. Zayon was one of the RIFed employees, was he not?

A. Yes, he was.

Q. Mr. Zayon was a newer employee before he was RIFed, is that not true?

A. I don't know. He was fairly less time than other people, yes.

Q. And Mr. Zayon is politically well-connected, is he not?

A. That I don't know ...

Q. You are aware, aren't you, that Angel Zayon is close friends with the mayor's son, are you not?

A. I am. I know they know each other and I have seen them here.

Q. And Mr. Zayon was brought back as a contractor ... within.about three weeks of the RIF, isn't that true?

A. Yes.

OCB Director of Operations Jorge Luis Hernandez testified that, upon Director Roig's request, he discussed with his staff what could be. done to meet a $5 million budget reduction (proposed at one time by Senator Dorgan to be as much as a $50 million dollar reduction for TV Marti20) and the "possibilities pointed to a reduction in our needs in TV news; make some programming changes in that area and also we discussed possibility of changing the Radio Marti format." (Tr. 10, p. 76)

Q. Do you recall what was the programming changes in TV news that you discussed?

A. Basically, the changes consisted in reducing the load of TV production and TV content in the news department, in the news area and changing, basically eliminating our large format newscasts and substituting them with smaller news briefs during the day ... we talked about doing six smaller versions of five-minute newscasts, instead of the long and intensively-produced newscasts which we were broadcasting two of them at that time.

Q. How did you believe that these changes would help with the budget reduction?

A. Because they were labor intensive and we put extend the contents of our programming, and I am referring now to our programs, non-news programs, you can always repeat programs with no hassles. News, you have to, it's a never-ending process.

...

Q. What, if any, impact would this plan have on employees?

A. Evidently, the plan would impact towards the reduction of personnel in the news in the TV news department. How many or what type of impact I didn't even know at the time exactly what the budget reduction was going to be or how many people it would even affect or how drastic it would be.

...

Q. Based on the plan that you proposed, how did you believe that that would meet the budget reduction?

A. Because I'm in the different areas of operations in TV or news. These are worded in more official places in which we could change programming in TV and possibly meet at least some of the budget requirements that we were being asked to consider, I mean we had reporters, we had writers producing our regular long newscasts which require a lot of time and effort and by changing the TV news programming, it was just repetition of small things that they were asking for without drastic and allow us to continue running regular programs on TV Marti.

Asked who determined the positions within TV news would be eliminated, Mr. Hernandez said that he did not know," That was out of my scope." (Tr. 10, p. 85)

Testimony With Respect to Alleged Violations of Other Sections of Article 30

It was Mr. Shamble's further testimony that the Agency was contractually obligated to continue the status quo and spending levels of the previous fiscal year while it was still operating under a continuing resolution. Instead, the Agency began early in 2009 making changes aimed at the TV Broadcasters that were on the RIF list given to the Union on August 4, 2009, e.g. by reducing hour-long TV news broadcasts to five-minute short broadcasts ostensibly resulting in less work but in reality creating more work. Another violation engaged in, according to Mr. Shamble, was to RIF and then promptly re-hire as POVs doing the same job certain low-seniority employees such as Angel Zayon, Ada Balda, Giaconda Reynolds, and Alberto Mueller. (UX 19, 20, 21, 22) The justification for these re-hires21 as POVs was in the case of Ms. Balda, for example, stated as follows (UX 20):

... Given the fact that the person who did this job was separated we have been obligated to shift work schedules and assign another contractor to perform this assignment. Since Radio Marti News is the only department in the Broadcasting Division that works 24 hours a day, seven days a week, including holidays, shifting personnel around due [to] the elimination of important positions in the news room has a negative effect on the workflow ... Ms. Balda has been doing this work in an outstanding fashion for the last three years as a federal employee ... It would not be feasible nor cost effective to hire another contractor for these assignments and it would be costly to the Agency since a new person would need to be trained ...

The justification for re-hiring Alberto Mueller stated in part (UX 22):

... We do not have enough personnel in staff to perform all the work required to air [ ] life hard news 24 hours on weekdays and weekends. The contract will include hosting a radio program on the Internet and bloggers.

We recommend Mr. Alberto Mueller for this contract, Mr. Mueller is one of the OCB employees that was separated in December of 2009. Mr. Mueller is the creator and host of the daily program Periodismo.com, a 30 minute magazine on digital journalism, the web and news related to bloggers and social networks. The importance of this program goes to the very core of the mission of Radio Marti. Internet access to Cuba is limited and censored and the blogging community in the island has been one of the most successful civil society movements of the past five years attaining worldwide recognition. Following news from this important sector of Cuban society is paramount for our broadcasts. Mr. Mueller has become one of the staffers that has followed these events on a daily basis and engaged in broadcasting information on digital journalism to our audience. Furthermore he does supporting work for the Radio Marti newsroom, which has been severely affected after his departure, specifically on weekends.

Since Radio Marti News carries approximately 80 percent of the responsibilities for the station five days a week and is directly charged with production of live programming for weekends, the reduction in force has severely affected news operations. As an all news operation losing valuable employees it has not been possible to substitute Mr. Mueller for the program Periodismo.com at this time. Since he is the creator of the program and has been working on the show since its inception we find that he is the best suited candidate to continue with this important broadcast. His selection as vendor would be cost effective for

the agency as there are no other alternatives as far as substitutes that possess his expertise in Cuban issues and digital journalism. Furthermore, selecting another OCB employee and assigning another employee for this program would entail that the other employee would not be able to do present assignments. Therefore it is necessary to have Mr. Mueller continue with a program that has proven to be very successful and in tune with our mission.

In addition, according to Mr. Shamble, yet another violation of Article 30, specifically of Article 30, Section 4(a), was the Agency's failure to "utilize existing vacancies consistent with the needs of the service." (JX 1) Although, in response to the Union's pre-arbitration Information Request, the Agency claimed that there were no vacant positions that RIFed employees were qualified for, when in fact, there were many such vacancies Agency-wide.22 (UX 23)

According to Mr. Shamble, the Agency also violated Article 30, Section 4(e) when it failed to "give to employees to whom specific notices have been issued priority consideration in applying for other positions in the bargaining unit." (JX 1) Whereas the Agency claimed in answering an Information Request that "Vacancy announcements for BBG positions are not relevant because BBG positions are outside of the competitive areas applicable to this RIF ... [and] [w]ith respect to competitive service employees, there were no vacant positions during the relevant time period" (AX 1), in fact the Union was able to identify several Vacancy Announcements for bargaining unit positions at the GS 11, 12, 13 levels -- positions "these [RIFed] employees would have been eligible for ... if we were still negotiating" or positions "where employees would get the training to go into that unit and get a position there" -- something that could have been negotiated during impact and implementation bargaining had it been allowed to take place before the RIF was implemented. (UX 23, Tr. 2, pp. 130, 131)

When the Union sought, during a regular Wednesday, October 7, 2009 labor management meeting, for example, whether there was any possibility of placing Miami employees who were on the RIF list in positions in the Voice of America's Latin American (Lat Am) Division, Donna Grace, the Director of Human Resources responded that she would look into it. Then, on October 21, 2009, the Agency said it was "still too tentative." Tr. V.13, p. 124. In retrospect, Mr. Shamble came to the conclusion that the Agency was knowingly engaging in bad faith delaying tactics because, at about the same time the Agency was moving at least part of the Latin American Division of the VOA to the OCB building in Miami and had hired Pedro Roig's nephew, Alberto Moscaro,23 who began working as the Director of the Lat Am Division in both Miami and Washington.

Similarly, Mr. Shamble attested, the Agency violated Article 30, Section 4(f) by failing to "offer retraining to affected employees" offering only the unsupported assertion in the Agency response to an Information Request that "there was no retraining because there was no funding available to provide for the training." (JX 1, AX 1)

In addition, the Agency violated Article 30, Section 5(c) by failing to "grant official time to mutually agreed-upon Union representatives for purposes of RIF training." To Shamble's knowledge nothing that could reasonably be considered "RIF training" was provided to him or any Union official.

In sum, asked why he believed the Agency's refusal to engage in impact and implementation bargaining over the OCB RIF had an adverse effect on the affected employees, he responded (Tr. 2, pp. 135-136):

Well, several employees were separated and they might not necessarily have been separated. Some of the employees might have been able to get positions in the Voice of America. They would be working. They were thrown out of work.

Q. What about employees being able to get positions in [the bargaining unit represented by] AFSCME? Could you have bargained that?

A. Yes.

Q. What else? Did you even get an opportunity to talk to these people to find out what they needed?

A. We didn't get an opportunity to talk to them to see what else we could have done maybe that was specific to them in Miami to soften the blow of this RIF.

In addition, Mr. Shamble continued, the Agency violated Article 5 Section 2(b) and (d) by discussing the elimination of their positions with employees before notifying the Union and by failing to recognize Miami-based Union officers and stewards such as Niurka Fernandez and Oscar Mora during the course of implementing the OCB RIF. Article 5 Section 1 and 3 were similarly violated when the Agency disregarded applicable Rules and Regulations, including its own, by unilaterally and prematurely implementing the OCB RIF without "giv[ing] due regard to its obligation to meet and confer in good faith with [the Union]" thus preventing the Union from negotiating "appropriate arrangements for employees adversely affected by" the RIF. (JX 1)

Finally, Mr. Shamble attested, the Agency continued to interfere in a variety of ways with the Union's ability to represent its bargaining unit members in violation of 5 U.S.C. 7116(A)(5) and (8) -- most recently by issuing Union Vice President Niurka Fernandez a Letter of Proposed Removal the day after the Union informed the Agency that she would be testifying at the arbitration hearing, escorting her publicly out of the building, and thus intimidating other Union witnesses such as Steward Oscar Mora who was afraid he would be next.

Testimony of Affected OCB Employees

Union Vice President Niurka Fernandez24 testified that she had been employed by the Agency for eighteen (18) years and had been a Union Steward for about nine (9) years and then Vice President for the past eight (8) She first learned of the planned OCB RIF in May of 2009. Her own position was eliminated, but she successfully bumped from a GS 13 to a GS 12 Production Specialist due to her seniority and was not among the employees who were ultimately separated in December of 2009. Early in 2009, she learned that certain employees were being transferred into the Internet section out of the newsroom. Only in May when news of an impending RIF was announced, did she realize that management had deliberately transferred certain low-seniority employees to work on the Internet in order to shield them from the RIF which was targeted specifically at the TV News unit.

Ms. Fernandez testified that she had been the host of a radio show aimed at younger audiences in Cuba -- a show that Programs Reviews rated "number one" after the newscast for Radio Marti -- when, "without explanation, on December 24, 2008, they told me the show was no longer going to air." (Tr. 2, 184) Shortly thereafter, her radio show responsibilities were taken away, leaving her "solely responsible for writing news and doing my reporter job in television." A recently-hired personal friend of the Director was given the slot to host a show about bloggers. (Tr. 2, p. 187) Similarly, at least four (4) other employees known to be in good odor with Director Roig were moved to the Internet unit while a fifth, Marta Yedra, known to have been outspokenly critical of Mr. Roig in her interviews with GAO investigators, was moved into the TV newsroom even though she had never worked in television before, let alone television news.

Asked whether Director Roig's decision to change hour-long newscasts to eight (8) five-minute "briefs," resulted in more or less work, Ms. Fernandez testified (Tr. 2, p. 193):

This resulted in more work. It's more difficult to work okay the reporters were asked, instead of working one news story or two, they were asked to work in eight different stories about eight different subject matters. We were requested to put all that information in 50 seconds. So it takes more work to concentrate in eight different stories and to try to condense all information in 50 seconds and then go and edit individually each story. You have to not only write but you have to get video for each story. So if I was doing Darfur and then the Middle East and then I was doing Guatemala and Cuba, I had to get video for all of these stories ... and sit down and edit these different stories with the editor and also get the chyron (the words where it gives you the locator) ... So each place had to have a different locator. All the

character, if I were selecting bites, identify all these people that were appearing in the eight25 different stories.

So at the end of the day, it was more work for the reporters, it was more work for the editors and it was more work for the technical people in the studio because they had to at any given point, go and fix the lights and prepare for these mini-newscasts as opposed to preparing and then doing half an hour and then working on other programming and coming back in the evening and preparing for the second newscast.

Finally, Ms. Fernandez attested, the more senior employees who were RIFed were employees who had been employed before Director Roig arrived, whereas the more junior employees who were brought back as POVs were all known to be friends of Roig's or other senior managers. (UX 25)

Former TV Specialist Hernando Barrera testified that Christina Sanson originally assured him that he would be able to continue working as a contractor, but that never happened. Asked what impact the RIF had on him he responded (Tr. 4, pp. 98-97):

It has been very terrible in the first place. All the time as a worker for 35 years I have never been fired. When someone has a stable job and you lose a job one moment later, it's very difficult. Emotionally, it affected me a lot, created insecurities. I had to lower my housing situation. Its been a year I have gotten no work. It has affected me.

Asked if he believed the Agency did whatever it could to make the RIF process as easy as possible for him, Mr. Barrera responded, no, he did not think so. Asked if he understood the reason he was RIFed, he responded (Tr. 4, p. 99):

When they fired me, the reason was for lack of budget. I do not understand if that was the reason because the job I was doing someone else, the contractor, took over.

It was Luis Guardia's testimony that OCB Operations Director Jorge Luis Hernandez told him privately after he (Guardia) was RIFed that he (Hernandez) had been forced by Pedro Roig to testify falsely at an MSPB hearing that he (not Roig) was the one who decided whom to RIF and that Roig had always seen Guardia "as an enemy." Asked what he understood by that, Guardia responded (Tr. 6, p, 94):

Mr. Roig, many people have said so and many people agree. All people who went against him or who contradicted him professionally ... was considered in that way [as an "enemy"] and his revenge was always to put those people in a position of little relevance. In other words, to punish them professionally.

When you love what you do, which is my case and that of others, it is even more sad that you can't do something professionally. It's worse than getting punished by a lower salary or by physical violence, and he did that.

I had nothing against him. I didn't know him when he started working here. I never had verbal conflicts with him. I never knew why I was on his black list.

... In 2008, after the elections, Mr. Roig created in the programs department a small group. That group duplicated the functions of the newsroom department. In that department, he started making a newscast that was parallel to the newscast in the news department. He took people from the news department and put them in other Departments, in Internet, et cetera, Afterwards, Mr. Roig eliminated the news department completely so he created two groups, one with enemies, which he placed in the RIF and a parallel department that he had created before.

Mr. Roig was making the news with the department that he had created, which, in many cases, were not journalists. In other cases, they did not have TV news experience. Therefore, he continued operating news with these people that he favored and he threw out, got rid of and included in the RIF the experienced journalists who always had the function of producing news.

It was Mr. Guardia's further testimony that Director Roig transferred a favored employee, Karen Caballero, to the newly-created Internet Department in order to shield her from the RIF (Tr. 5, p. 98):

Transferring a reporter who is working as anchor in front of the camera and who is interviewing on the streets to write news on a computer is professionally a downgrading. Mr. Roig did this to save that person from not being included in the RIF. It's a tactic and everyone wonders how someone would want to do that, but two months later, when the RIF arrives, we all realized that it was a ploy to save that person. That's how he did with many things. The history shows that the groups do exist and proof is that the people who stayed in the news department were all RIFed.

Asked by Agency Counsel if he knew that Ms. Caballero had applied for that position, he responded (Tr. 5, p. 99):

Yes. And if I had known, even being grade 13, if I had known that there was going to be an elimination of the news department, I, as a grade 13, would have also applied for a position of a lower grade. I have family and I would rather win less than be on the street. We never knew that the RIF was coming. If we had known, Luis Guardia and many other journalists would have applied for that job ... She [Caballero] was already an anchor. All of us transferring would have been in the position of lower qualifications because the Internet has a lot of capacity in its reach but the journalist, the function was simply to copy news. Professionally, its going backwards. Its what a journalist starts to do when he starts out. Almost no one thought about requesting that position because no one knew that the final objective was to eliminate the news department.

The Positions of the Parties The Agency Arbitrability

Briefly summarized, the Agency's arguments with respect to the arbitrability of parts of the Grievance are the following:

First, the issues raised in the Grievance, other than a violation of Article 30, Section 2 and a violation of past practice of impact bargaining are not arbitrable. In order for the Agency to have a "fair" (5 U.S.C. 7121(a)(1), Article 21, Section 1 NLMA) opportunity to resolve grievances, the Agency needs sufficient notice of the specific perceived violation(s).

Second, the Union's belated effort to "bootstrap" into this arbitration an interference claim regarding the Agency's issuance of a Notice of Proposed Removal to Union Vice President Niurka Fernandez should have been filed as a separate grievance. As such, this claim is not properly before the Arbitrator.

Third, the Grievance was filed as an institutional grievance, defined as "... a grievance over a matter of general concern to the Bargaining Unit or a violation of the institutional rights and responsibilities of the parties ... (Article 21, 7(a))." In that the Union's claims that, in addition to Article 30.2, other provisions of Article 30 were also violated pertain solely to the concerns of the small group of RIFed employees, these claims should be declared inarbitrable.

Fourth, the Agency notified the Union on October 13, 2010, before the hearing commenced, during a conference call with the Arbitrator, that (now that it saw pursuant to the Union's pre-arbitration Information Request that the Union apparently intended to pursue issues beyond the failure to engage in impact bargaining) it would raise an arbitrability challenge on those issues. Any claim that the Union was taken

by surprise at the arbitration hearing is directly contradicted by the testimony of Paul Vali and the Union's provision of a draft of a MOU that sought the Agency's waiver of any claims of arbitrability of the OCB RIF grievance.

The Merits

The Union failed to prove that the Agency violated the Statute and the NLMA by failing to engage in impact bargaining. To the contrary, the Agency proved that it was not obligated to bargain because "the Agency's implementation of the RIF was 'covered-by' Article 30 of the NLMA and the Agency [proved that it] followed the provisions in that article." (Agency Brief, p. 9)

The Parties duly negotiated extensive procedures for RIFs in 1992, and they became part of, i.e. "covered-by," the 1993 NLMA. Article 30 encompasses 11 sections that establish the procedures the Agency must follow, in addition to the regulations established by the Office of Personnel Management (OPM), when a RIF is necessary. Since it is clear that the parties reached a negotiated agreement on the subject of RIFs, the subject is covered by the agreement and the Agency is "absolved of any further duty to bargaining about that matter during the term of the agreement." (Citing Federal Bureau of Prisons v. FLRA, 2011 WL 2652437 (C.A.D.C.)).

To conclude otherwise would be to reach a construction of the NLMA "that treats it as but 'a starting point for constant negotiation over every agency action,'" -- something the Court of Appeals of the District of Columbia Circuit proscribed in Federal Bureau of Prisons, supra.

The Union's effort to obviate the "covered-by" doctrine by claiming there was a "separate and independent" contractual obligation to bargain RIFs should be rejected. Article 3 of the NLMA is a definition section for consultation impact bargaining and Article 30, Section 2 is a policy section pertaining to RIFs. "Since the purported contractual obligation arises from a provision in the RIF article policy statement, and the duty to bargain is covered by Article 30, any duty to bargain under this policy statement, if one exists at all, would also be absolved since Article 30 is a product of negotiations between the parties." (Agency Brief, p. 12)

The Union also failed to prove that the Agency violated a past practice of negotiating RIFs. "The Agency does not dispute that the parties bargained the impact of RIFs that occurred in 1994, 1995, 1997, 2000 and 2001. ... However, the past practice ended when the Agency began asserting the 'covered-by' doctrine with respect to RIFs in 2004 and 2007." (Agency Brief, p. 14)

The Agency has shown that the RIF was implemented in full accord with the RIF Regulations and the NLMA. The RIF was for proper reason(s) as authorized by 5 C.F.R. Section 351.201(a)(2) and properly applied to bargaining unit members under the RIF regulations at 5 C.F.R. Part 351. The Agency has borne its burden of proving by preponderant evidence that all RIF Regulations were properly applied to each affected employee. Here, (Agency Brief, pp. 16-17):

The Agency has shown, by a preponderance of the evidence, that the reduction in force which resulted in the elimination of 35 positions was invoked based on a budget reduction and a reduction in the workload within the ... OCB. The programmatic changes were made to effectively continue OCB's mission of broadcasting to Cuba within the new budget constraints. As finally approved by Congress, the evidence reflects that OCB's budget was reduced by $4.2 million -- necessitating the change in TV Marti news to a five minute update every 1/2 hour and changing Radio Marti to an all-news format. November 17, 2010 Testimony of Pedro Roig ... AX 6, 8, 10.

The evidence shows that the programmatic changes, the reduction of the flying time of the plane which transmits the TV Marti signal into Cuba by a half-hour a day, and an over-all reduction in the number of POVs used by the OCB were made solely to enable the OCB to continue carrying out its mission -- not for the purpose of "targeting" specific employees. (Agency Brief, p. 18):

Mr. Hernandez stressed that throughout these discussions, the focus was to try to keep as many positions as possible and to save as many jobs as possible. [ ] Mr. Hernandez and Mr. Rosal also testified that Mr. Roig did not direct them to target any positions when making the determination about how to meet the potential budget reduction. [ ]

Furthermore, the above-referenced plan was approved by the Board of Governors and then by both the House and Senate Committees -- all aware that the plan would require staff reductions to function within the lower budget. (Agency Brief, p. 18)

With respect to the budget amount for OCB approved by each committee, the Union acknowledged that the House Committee approved the $4.2 million reduction which the President's plan called for and the Senate Committee approved a much larger reduction of $15 million. [ ] The Senate version was specifically aimed at a reduction for TV Marti. [ ]

The evidence shows that the RIF was properly implemented by Human Resources staff according to all applicable RIF regulations as extensively explained by Human Resources Specialist Carroll Cobb. The evidence shows that the bargaining unit employees received their specific RIF notices on September 16, 2009, more than 60 days prior to their separation, which occurred on December 19, 2009. The evidence clearly shows that Ms. Cobb properly evaluated the bargaining unit employees' assignment rights under the regulations and the NLMA. In addition, it is clear from all these [Human Resources] witnesses that Mr. Roig did not give any orders or instructions, nor did anyone else at OCB, regarding targeting any bargaining unit members for separation under the RIF." (Agency Brief, p. 21)

The Agency was not required to wait for the FY 2010 budget to pass before beginning the steps required before implementing a RIF. "Since the case law is clear that even an anticipated budget deficit is sufficient to invoke a RIF, the Union's claim that the RIF was not legitimate because the FY 2010 budget was not passed is without Merit and should be dismissed." (Agency Brief, p. 25)

The Union failed to prove that the positions of certain bargaining unit employees were targeted for elimination. In contrast to the testimony of Agency witnesses Roig, Hernandez, and Cobb, Union testimony was based on mere speculation and should be dismissed.

The Union also failed to prove that the Agency failed to follow Article 30 procedures during the course of its implementing the OCB RIF. On the contrary, the evidence shows that the Agency followed them all. For example, the Agency did take steps to mitigate the impact of the RIF on bargaining unit employees. "Specifically, OCB reduced the amount expended for talent POVs from $2,478,717.58 in FY 2009 to $1,744,729 in FY 2010. [ ] In addition, ... OCB reduced the broadcasts through Aero Marti by half an hour daily, for savings of approximately $500,000.00.26 [ ] These alternatives fulfill Section 3 of Article 30. Since the budget of OCB consists primarily of salaries for employees, Mr. Rubenstein stated that OCB could not reach a budget reduction of that magnitude [$4.2 million] without impacting personnel. [ ] Mr. Rubenstein also testified that a cost study as contemplated by Section 3(a) was not conducted." (Agency Brief, pp. 26-27) Moreover, as explained in detail by Senior Human Resources Specialist Carroll Cobb, all of the complicated administrative steps were taken to assure that the RIF was carried out in accordance with all relevant rules, regulations, and the NLMA. As explained by Labor and Employee Relations Specialist Michelle Stewart, Union representatives Fernandez and Mora were given answers to all their questions during meetings held in Miami as well as by telephone, and meetings were held with affected bargaining unit employees as well.

Finally, the status quo ante remedy requested by the Union is not appropriate because it would disrupt the Agency's mission and operations. The most that the Arbitrator should order in this case, were a violation to be found, is a prospective bargaining order, and that, too, would be inappropriate because the proposals submitted by the Union have already been addressed and, where possible, implemented.

The Federal Labor Relations Authority (FLRA) has ruled that a "status quo ante remedy must be determined on a case-by-case basis, carefully balancing the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy." Federal Correctional Institution (FCI), 8 FLRA 604, 606 (1982). When determining whether such a remedy is warranted, the FLRA applies the following tests: 1) whether and when notice [of the RIF] was given to the union; 2) whether and when the union requested bargaining; 3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; 4) the nature and extent of the impact experienced by the adversely affected employees; and 5) whether and to what degree a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations.

A status quo ante remedy would be inappropriate in this case for the following reasons. First, reinstating sixteen (16) affected employees was estimated by the BBG CFO, Maryjean Buhler to come at an approximate cost of $1.6 million dollars (using a rough estimate of $100,000 per employee). At the time of her testimony, Ms. Buhler anticipated a reduction of the Agency's operating budget of between $10 million and $53 million (out of a total of $733 million) -- and, probably, a similar reduction for FY 2012. Although Ms. Buhler noted "that unlike some agencies, the BBG does have a 'reserve' fund from which to draw on for unexpected expenses ... Ms. Buhler also explained that although the FY 2011 operating budget reflects the $733 million figure, it does not capture all the requirements the BBG must pay." (Id., p. 37)

As to the other FCI factors, "[t]here were only 16 employees separated in the OCB RIF compared to approximately 800 bargaining unit members throughout the Agency. In addition the Agency's failure to bargain was based on a good-faith belief that negotiations were 'covered-by' Article 30 of the NLMA ... the Agency provided the Union with the appropriate notices and opportunities to provide ideas to mitigate the impact of the RIF. Accordingly, the Union's request for a status quo remedy should be denied." (Id., pp. 38-39)

In sum, for all of the aforestated reasons, the Agency asks that the Grievance be denied in its entirety.

The Union

It is the Union's position that the Grievance is arbitrable in its entirety, the Agency violated the NLMA, the Statute, and past practice with respect to the 2009 OCB RIF. Briefly summarized, the Union's arguments are the following:

The OCB RIF was not a bona fide, justified, RIF caused either by a "lack of funds" or by a "lack of work." Instead, it was an improperly-motivated, targeted action. "The Agency, through then OCB Director Pedro Roig, used a budget reduction to OCB to target employees who opposed Mr. Roig or whom Mr. Roig disliked for other reasons, such as their union involvement. ... While targeting certain employees, Mr. Roig also reassigned other Agency personnel so as to protect his friends." (Union Brief, p. 1)

In addition to approving an improperly-motivated RIF, the Agency made matters even worse for the affected employees by refusing to engage in impact and implementation bargaining, as the Union requested, thus preventing the affected employees from enjoying any of the benefits that might have accrued to them through said bargaining. This refusal occurred "even in the face of stark evidence of the Agency's obligation pursuant to the contract, the parties' past practice covering a decade and approximately six RIFs, and the Agency's own internal regulation requiring that bargaining." (Ibid.)

The Agency's conduct from the beginning in 2009 through the end of the arbitration hearing in 2011 was egregiously obstructive. The Agency refused to respond to information requests and even to the Arbitrator's order until four months into the hearing -- and then it turned out that there were actually 250 vacancy announcements during the relevant period! In addition to obstruction, the Agency also attempted to interfere with Union Vice President Niurka Fernandez's ability to testify and represent the affected employees (of whom she herself was one) by proposing to remove her the day after learning that she would be a witness, escorting her publicly from the premises, freezing her e-mail, allowing her access

only to the Union office (which has no working computer), only on Fridays, before which she must provide Agency security with 24 hours notice. If she needs to get water or leave the room, the Agency requires that she obtain an escort. The Agency tried to intimidate other union witnesses by following them around, accusing them of improper behavior, issuing memos warning of the consequences of breaching Agency confidentiality -- all timed to hearing days for maximum effect.

Arbitrability

The Agency improperly tried to challenge the arbitrability of the Grievance by raising the question for the first time at the first hearing, claiming for the first time since the Grievance was filed that "it did not know the particularities of the violations alleged." (Id., p. 3) This claim is phony. Agency claims of self-imposed ignorance should not be permitted to allow a finding of inarbitrability. The entire Grievance should be held arbitrable.

The Merits

The Union has proved, through testimonial and documentary evidence, that:

1) the Agency violated Article 30.2 of the NLMA by refusing to engage in impact bargaining with respect to the OCB RIF. For this violation the Union asks that the Arbitrator order a status quo ante remedy, including reinstatement and full back pay (with all entitlements thereto) for all employees who were separated before the Union could fully negotiate and reach agreement on impact and implementation of the RIF and an order that the Agency bargain in good faith with the Union over the impact and implementation of the RIF to the fullest extent of the law. The Union also seeks a posting acknowledging the Agency's illegal failure to bargain over the impact and implementation of the RIF and stating that it will bargain with the Union over the impact and implementation of any RIF in the future.

2) The Agency violated Article 30 and/or law, rule or regulation by failing to appropriately comply with the various requirements when it improperly implemented the RIF. For these additional violations, the Union also seeks reinstatement and back pay for employees separated in connection with the RIF, and that the Agency then comply with the appropriate provisions. With respect to other Article 30 violations, for example Article 30, Sections 4(a) and 6(a), the Agency must reinstate the employees and provide back pay, and then, if RIF remains necessary, the Agency must "utilize existing vacancies, consistent with the needs of the service, to place employees adversely affected by the RIF," including utilization of vacancies throughout the Agency, not simply within the competitive area, and "offer reasonable changes of position" including outside of the competitive area. For these violations, the Union also requests a posting.

3) The Agency committed unfair labor practices and violated Article 5 by refusing to negotiate in good faith with the Union as well as by interfering with and taking reprisals against Union officials and witnesses. For these violations the Union requests a posting.

4) The Union requests that the Arbitrator retain jurisdiction with respect to any dispute that may arise concerning the implementation of the remedy.

5) The Union further seeks that the Arbitrator hear a subsequent petition for attorney fees, should the Union prevail with respect to any back pay award pursuant to 5 U.S.C. Section 5596

The testimonial and documentary evidence shows that, given notice of the OCR RIF, the Union promptly requested impact bargaining and challenged the "shortage of funds" basis, pointing out that Congress had not yet even approved the Agency's budget. (JX 2.6) The Agency's obligation to engage in impact bargaining stems, in this case, directly from Article 3 and 30 in the NLMA language that was first agreed upon in the Parties' 1993 predecessor contract where it still remains because the language was "rolled over" when the Parties were unsuccessful in negotiating any other language in successor term agreements. Agency witness Poggioli's testimony with respect to her interpretation of Articles 3 and 30

was credibly rebutted by Union witness Benjamin Davis, the Union's Chief Negotiator of the 1993 contract. Mr. Davis testified that one of the Union's biggest concerns during the negotiations of the 1993 contract was "job security" because "there had been announcements of a possible reduction in force" at the time. (Tr. V, pp. 12-13, Union Brief p. 16) Consequently, the Union was intent on making it clear that the Agency would be contractually obligated to bargain the impact of any RIF, and Mr. Davis believed that the Union accomplished this goal -- as shown in the bargaining history proposals and counter-proposals submitted to show the bargaining history behind Articles 3 and 30.

In addition to evidence showing the NLMA is clear and unambiguous with respect to the Agency's impact bargaining obligations, the evidence also shows a binding past practice of impact bargaining with respect to RIFs. "Since the 1993 contract through the date of this arbitration, the Agency has bargained over the impact and implementation of each and every one of the RIFs for which this Union sought to bargain except for the RIF that is subject of this arbitration." (Union Brief, p. 19) That this was a binding past practice was confirmed by then-Agency Chief of Labor Relations, Jim Hagan (who was not called to testify although he is still employed by the Agency) when Union President Shamble asked him about then Labor Relations Specialist Poggioli's claim during negotiations over the 2005 contract to the effect that "the Agency was only bargaining over impact and implementation because 'we are nice. We don't have to do this if we don't want to ... because of the covered-by doctrine." (Tr. V.2, p. 25, Ibid. p. 21) Rejecting Ms. Poggioli's "covered-by" theory, Mr. Hagan specifically pointed Shamble to Articles 3 and 30.2 of the NLMA saying they were the contractual provisions that required the Agency to engage in impact bargaining.

Union witness Barbara Markov, who served on the Union's impact bargaining team for the 2004-05 LatAm, Uzbek, Turkish RIF as well as the negotiating team for the 2005 contract, confirmed that Mr. Hagan told the Union impact bargaining team the same thing on the first day of negotiating. Ms. Markov recalled that "Mr. Hagan ... said that it was always unfortunate to have to meet over a RIF and that the agency was there under obligation by the contract." (Tr. V.7, p. 12, Id.)

Ms. Poggioli's tortured reasoning with respect to the application of the "covered-by" doctrine by the FLRA during the 1990's as compared to later is full of inaccuracies and should not be credited. (Id., p. 24, emphasis added)

[A]bsolutely essential to this entire analysis is the recognition that the "covered-by" defense applies to the statutory duty to bargain, but is irrelevant to a contractually created obligation to bargain. The FLRA has made this absolutely clear. Since "the only issue before the Arbitrator in this case was a contractual [duty to bargain], not a statutory one, the statutory 'covered by' doctrine does not apply." See U.S. Department of Defense, National Guard Bureau, Adjunct General Kansas National Guard and ACT, Wichita Air Capitol Chapter, Local 74, 67 FLRA 934, 57 FLRA No. 199, 102 FLRR-1 2, 102 LRP 15615 (2002); ... (The "covered by" doctrine applies as a defense to an alleged failure to satisfy a statutory bargaining obligation. [citations omitted.] In resolving a grievance alleging such a failure, an arbitrator must apply the same standards and burdens applied by an administrative law judge in a proceeding under Section 7118 of the Statute. By contrast, where a grievance involves only a dispute whether a contractual -- as opposed to statutory -- bargaining obligation has been violated, the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the arbitrator.") ...

Yet another confirmation of the Agency's bargaining obligation is found in the Agency's own Manual of Operations now called "the BAM." (UX 44) Chief of Labor and Employee Relations Jaiswal himself agreed that the Agency is required to abide by its own rules and the BAM clearly requires impact bargaining with respect to RIFs.

The testimony of former Agency Chief Negotiator Poggioli is not credible. Poggioli admitted saying at the bargaining table during term agreement negotiations for the 2005 contract that after "many hours at the bargaining table" bargaining over Article 30 "we wanted a closed [RIF] article with no additional bargaining." Tr. V.10, p. 26 (emphasis added) This statement was an admission by Ms. Poggioli that the Union clearly indicated it believed it already had the contractual right to bargain RIFs and that Ms.

Poggioli and the Agency recognized that the Agency was seeking to change that status quo." (Id., pp. 29-30) Union Negotiators Shamble and Pantaleo testified that, when the Union responded to Poggioli's question, "What would it take to get a closed RIF article?" with counterproposals that she found unacceptable, Poggioli abruptly ended the negotiations thereby evidencing her frustration at not being able to get the status quo with respect to RIF-related impact bargaining changed. Since the relevant language in Articles 3 and 30 were "rolled over" and remain unchanged in the governing NLMA, the Agency remains obligated to engage in requested impact bargaining over RIFs.

The Agency continuously engaged in bad faith delay tactics as Union President Shamble made it repeatedly clear that the Union sought impact bargaining with respect to the OCB RIF, sought information relating to it, and sought time to present ground rules as well as to form its negotiating team. President Shamble notified the Agency of the Union's request to bargain on August 24, 2009 shortly after the Agency provided "preliminary notification" of the RIF. (JX 2 (2.4, 2.6)) This notice alone triggered the Agency's obligation to bargain. The Agency's subsequent responses, however, while soliciting the Union's "ideas," led Mr. Shamble to conclude by September 4, 2009, based on the Agency's statement that it would "issue specific RIF notices to OCB bargaining unit employees on September 14, 2009," that "it looked like they were going to go ahead and start implementing" without first engaging in impact bargaining.

President Shamble promptly filed an Information Request, while also challenging the bona fides of the RIF itself (JX 2.18):

Once the Agency provides the requested information and establishes that the Agency has a basis for claiming that there is a lack of work or lack of funds the Union will provide ground rules for negotiations and some preliminary proposals.

Instead of responding to the Union's repeated requests to bargain, the Agency instead provided the Union with the annotated retention registers in supposed compliance with Article 30, Section 8 -- only a mere two (2) days before the RIF notices were issued on September 16, 2009.

It was only on September 15, 2009 that the Agency finally revealed its intent to implement the RIF without impact bargaining by asserting, for the first time ever, that the Agency had no obligation to bargain because RIFs were "covered-by" the NLMA. (JX 2, 2.33) Union President Shamble thought that, perhaps since Harinder Jaiswal was relatively new to his job, he might not have understood either the bargaining history or that the "covered-by" doctrine did not apply to contractual bargaining obligations but Jaiswal insisted otherwise while continuing to implement the RIF.

The Remedy

A status quo ante (SQA) remedy for failing to bargain the impact of the RIF, including back pay, is the appropriate remedy for the violations proved in this matter. (Id., p. 38)

... Where an agency has an obligation to bargain over only the impact and implementation of a matter and fails to do so, Arbitrators and the FLRA will apply several factors to determine whether a status quo ante remedy is appropriate. Specifically "1) whether, and when notice was given to the union by the agency concerning the action or change decided upon; 2) whether, and when, the union requested bargaining on the procedure to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adversely affected by such action or change; 3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the statute; 4) the nature and extent of the impact experienced by adversely affected employees; and 5) whether, and to what degree a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. U.S. Department of Defense, Defense Commissary Agency, Peterson Air Force Base, Colorado Springs, Colo. and American Federation of Government Employees, Local 1867, 61 FLRA 688, 107 LRP 50876, 107 FLRR-1 29 (August 23, 2006) ...

The evidence shows that all five (5) of the above tests have been met in favor of a status quo ante remedy in this case. Clearly, the Agency gave notice of an impending RIF, clearly the Union requested impact bargaining over it, the Agency's conduct in refusing to bargain before implementing the RIF was egregiously willful throughout, the impact of the RIF on the affected employees was extremely harsh, and the Agency failed to show that a status quo ante remedy would seriously disrupt or impair its efficiency and/or effectiveness in any meaningful way. In fact, the opposite is true as the evidence shows returning the affected employees -- all experienced TV Broadcasters or Technicians -- would actually benefit the Agency because the OCB is still hiring contractors to do TV news reporting or technical work -- work previously performed by the RIFed employees.

The OCB RIF was not based on the reasons stated by the Agency, "lack of funds" and "lack of work." The record shows that neither was the case. Instead, the RIF was an adverse action targeted at certain employees then-Director Roig disliked. As a matter of civil service law, a RIF taken for reasons personal to an employee is an adverse action. Gabriel v. Department of Labor, 108 LRP 13346, 108 MSPR 186 (MSPB March 4, 2008) When that is the case, the Agency is required to follow all civil service laws and regulations as well as the collective bargaining agreement's provisions pertinent to adverse actions, including proving by a preponderance of the evidence that there was just cause for the removal. (Id. p. 49, citing JX 1, Article 20) The Agency's claims of a "lack of work" and "lack of funds" are mostly bare allegations unsupported by the evidence.

On the contrary, the record shows that "the Agency's alleged evidence to support its claim that it had to reduce reporter employee staff due to the lack of funds, because there were no other areas it could cut -- (because other areas were 'fixed costs' and 'critical to the mission of the Agency') is simply not credible." (Id. p. 49)

Instead, what is credible is that Mr. Roig used the lack of funds to target employees he sought to rid the Agency of, because they had in some way opposed him ... Mr. Roig accomplished this by hand-selecting an alleged audience survey that he had paid for which allegedly established that the Cuban audience preferred less TV news, and instead wanted their news via radio. He provided a summary of this alleged survey to one of his high level managers, Mr. Rosal, and simply expressing his own opinion of audience preference to Mr. Hernandez, so that they could 'decide' where cuts should be made. On the basis of Mr. Roig's handpicked survey summary or Mr. Roig's opinion of preference, they either accepted that cuts would be made to TV news (Mr. Rosal) or advised that cuts should be made to TV news (Mr. Hernandez). In the meantime, Mr. Roig ensured that employees in the TV news whom he needed to protect would be moved out, so that they wouldn't fall into the RIF trap, such as Karen Caballero (the violinist) [a TV news reporter moved to the Internet department]. As well, when some of his favorites got caught in the RIF, such as Alberto Mueller, Sylvia Font, Angel Zayon, and Giaconda Reynolds, Mr. Roig notified them that he would remedy the problem by rehiring them as contractors. Mr. Roig was good to his word as they were all rehired as contractors immediately after the RIF. Mr. Roig's and the Agency's actions immediately after the RIF also illustrate that this was a targeted action and not truly about budget. These actions include the rehire as a permanent employee within approximately a month of the RIF an employee with whom Mr. Roig was close, Mr. Luis Zuniga, to a better position than he had had prior to the RIF and raises granted to approximately 16 other employees at the Agency.

Yet another indication that "lack of work" and "lack of funds" were not actually extant conditions at the time of the 2009 RIF can be seen in Director of Administration Rubenstein's admissions that neither Congress nor then-CFO for the Agency, Janet Storms, directed him (or Mr. Roig) to cut positions. Additionally, he testified that, for 2010, Congress authorized OCB to fill 136 full-time positions. As the Agency's actual staffing for 2010 was 128, it can only be reasoned that, at a minimum, there was no need to RIF at least 8 of the 16 employees who were separated. In other words, there actually were funds for at least some of the positions that were abolished.

Another post-RIF move that shows the ostensible reasons for the RIF were not bona fide is the fact that three (3) employees, Caballero, Alfonso, De Armas, initially "shielded" by moving into the Internet Department, were returned not long after the RIF to their previous positions doing TV newscasting.

Agency witness Rosal testified that the Agency's budget for the Internet was small. This would seem to severely discredit the Agency's claim that it is trying to increase the internet focus at OCB and that was the reason for reassigning these (favored) employees to the Internet Department.

In sum, for this and many other reasons, the Agency failed to carry its burden of proving the bona fides of the RIF. If it believed there were real reasons for removing the employees that were RIFed, it should have proceeded under adverse action law and regulation and the NLMA. For this reason alone, the RIF in toto should be reversed.

Opinion Arbitrability

The Union's argument that it was contractually entitled to notice before arbitration of the Agency's intention to challenge the arbitrability of the grievance is rejected. Article 21, Negotiated Grievance Procedure, provides for such notice in Employee Grievances (Section 5(d)) and Grievances Concerning Discrimination (Section 6(i)). (JX 1) There is, however, no similar provision for Union-Agency Institutional Grievances (Section 7). (JX 1) The Union's assumption and belief that the notice required for the prior two types of grievances applies to the latter as well is erroneous.

The Agency's arbitrability arguments are rejected for the following reasons:

First, the Agency grounds its arbitrability arguments in a willfully-selective misreading of the grievance. On its face, the grievance clearly cites more contract articles than just Article 30, Section 2. In the "Background" statement, the grievance cites Article 3 and Article 30, Section 2. In "Violations of Law/Contract" section, it lists 5 U.S.C. Sec. 7116(a)(5) and (8); NLMA Article 5 Section 2(b) and (d); Article 6 Section 1 and 3; Section [sic] 30; and ... past practice." (JX 2)

Second, in its "covered-by" argument, the Agency willfully conflates and misinterprets the Union's intentions with respect to the grievance of contract provisions other than Article 30, Section 2. It was clearly never the Union's intent in the grievance to seek to bargain over the terms of Article 30;27 it was, instead, the Union's intent to grieve what it believed were violations of Article 30 Section 2 and other provisions of Article 30 during the Agency's handling of the 2009 OCB RIF.

Third, the Agency's arguments with respect to lack of "specificity" in the grievance are unpersuasive. It sits ill in the mouth of the Agency to complain at arbitration almost a year later about its inability to resolve the Grievance because it didn't know exactly what subsections of Article 30 the Union was grieving. If the Agency was uncertain what other Article 30 provisions were involved in the grievance, besides Section 2, it could easily have clarified this during bi-monthly discussions with the Union before and after the grievance was filed throughout. The record shows that during the months leading up to the November 4, 2009 Grievance, Miami-based Union Representatives Fernandez and Mora had been pleading for the RIF training to which they were contractually entitled in Article 30, Section 5(c). Instead, they were largely brushed off28 by Specialists in Washington -- the same Specialists whose testimony at arbitration took many hours explaining the complex intricacies involved in implementing a Federal RIF. Had even half that number of hours been spent training Miami-based Union representatives and involving them constructively in the RIF process through impact bargaining, this entire Grievance might never have been filed in the first place.

Fourth, the Agency misapplies the "covered-by" doctrine. As Union President Shamble correctly and succinctly put it: "'Covered-by' deals with [the] statutory obligation. What we argued regarding the OCB RIF is a contractual obligation. The Agency bargained to [impact] bargain, and that's in the contract." (Tr. 11, p. 41) Granted, the grievance cited certain sections of the Statute that govern Unfair Labor Practices (effectively giving notice that the Union believed the Agency also committed a ULP by refusing to bargain), but, more importantly for present purposes, the grievance also clearly stated that the Union believed several cited NLMA provisions were being violated including, but not limited to, Article 30,

Section 2. (JX 2) Putting it another way, the Union was not proposing to negotiate over the terms of Article 30 (earlier term agreement negotiations had temporarily ended with an agreement to, once again, "roll over Article 30" into the current NLMA); it was proposing to negotiate over the impact and implementation of the RIF.

Fifth, the Agency should not be permitted to achieve through arbitration what it tried and failed to achieve at the bargaining table in the (concededly-protracted) contract/term agreement negotiations. The record shows that the language of Articles 3 and 30 has remained the same since the 1993 NLMA. Between 1993 and 2009, whenever the Union requested implementation and impact bargaining29 with respect to an upcoming RIF, specifically in 1994, 1995, 1997, 2000 and 2001, the Agency complied with the request, and the Parties, to their credit, succeeded in reaching detailed RIF Agreements that were, no doubt, extremely meaningful to the affected employees. There is no evidence that the Agency ever refused such a Union request until the OCB RIF occurred in 2009.

In sum., for all of the aforestated reasons, the Grievance is found to be arbitrable in its entirety.

The Merits The Agency Violated Its Contractual Obligation to Engage in Impact and Implementation

Bargaining

For the following reasons, the Arbitrator finds that the Agency was contractually obligated to engage in impact and implementation bargaining over the OCB RIF:

First, the "covered-by" testimony of then Chief of Labor Relations Mary Poggioli is not credible.30 The Arbitrator draws an adverse inference from the Agency's failure to call Jim Hagan, the Chief of Labor Relations (and superior to Ms. Poggioli at the time as well as present at earlier negotiations where Ms. Poggioli was not). The fact that the Agency would call a retired Chief of Labor Relations now living in Savannah, Georgia and not call her then-superior still employed and working in Washington, where the hearing was held, can only mean one thing: the Agency wanted to put forward Ms. Poggioli's contract interpretation with respect to impact bargaining (subsequently adopted by then-Chief of Labor and Employee Relations Harinder Jaiswal) -- and not Mr. Hagan's, which two Union witnesses, Shamble and Markov, testified was known to be in accord with the Union's interpretation.

Union President Shamble's testimony, on the other hand, was corroborated by other witnesses, and supported both by the bargaining history record, the Agency's own RIF regulations as set forth in the BAM, and the past practice of engaging in impact bargaining over RIFs every time the Union requested it until the 2009 OCB RIF at issue.

As to the Agency's Contractual Obligation to Engage in Impact Bargaining Over a RIF, the Relevant Language of the NLMA Is Not Clear and Unambiguous

For reasons set forth below, the Union's interpretation is adopted.

It is axiomatic in labor arbitration that, where relevant contract language is unclear and subject to interpretation, the relevant language should be read together, not in separate parts. (See, generally, How Arbitration Works, Elkouri and Elkouri, Ruben, Ed., 6th Edition, 2003, BNA, "Interpreting Contract Language" p. 427ff, hereinafter "Elkouri") In this case Article 3 Definitions and Article 30 Reduction in Force/Transfer of Function were negotiated together during the 1992 term agreement negotiations and have remained the same ever since in spite of strenuous efforts by the Agency, especially, to abolish, or at least limit, the Agency's obligation to enter into impact and implementation bargaining before implementing a RIF.

For the following reasons, the Arbitrator adopts the Union's interpretation of Articles 3 and 30:

First, a close examination of the extensive bargaining history record, including the testimony of negotiators Davis (for the Union) and Ledford (for the Agency), shows that the still-existing language of Articles 3 and 30 was originally negotiated in 1992 at a time when RIFs were known to be under discussion, and the Union made it clear to Agency negotiators that it considered the right to engage in impact and implementation bargaining over RIFs to be of paramount concern to its members. Furthermore, the 1992 negotiations expressly tied Articles 3 and 30 together, adopting previously-existing language of Article 3 to facilitate mutual agreement.

Second, arbitrators agree that an interpretation in tune with the purpose of a contractual provision or provisions is to be favored over one that conflicts with it. (Elkouri, Op. Cit. p. 461) Here it is clear that it was the Parties' mutual intent and purpose in 1992 that impact and implementation bargaining would be contractually required before RIFs could be implemented in the future.

Third, the language in Article 30, Section 2 Policy was proposed by the Agency. (See, Agency Surrebuttal Proffer). It is a standard rule of contract interpretation that language should be interpreted against the party that proposed it. (Id., pp. 477-78) The Arbitrator rejects the Agency's argument that the words "personnel policies" in Article 3 and the word "Policy" in Article 30, Section 2 should be read together to preclude the requirement of impact and implementation bargaining over RIFs. Article 3 expressly states that it applies to "personnel policies and regulations which are not negotiable." (JX 2, emphasis added) Article 30 covers negotiated procedures whereby RIFs will be implemented; therefore it cannot be said that nothing regarding a RIF is negotiable. Finally, the next sentence of Article 3 expressly provides that "[b]efore changing such policies and regulations the Agency will provide the Union adequate notice ... and reasonable opportunity to request negotiations with the Agency on matters relating to the impact of the changes on the bargaining unit." (JX 2, emphasis added)

As to later bargaining history, the record shows that the Parties engaged in on-again-off-again bargaining over Articles 3 and 30 from October of 2003 (AX 41, Management's initial proposal) to May of 2007. (AX 52, Union's last counter proposal) Both Parties proposed changes to both articles, the Union counter-proposed the exchange of certain concessions for a five-year moratorium on RIFs (AX 44, 11/01/04), the Agency counter-proposed the exchange of certain other concessions for a one-year moratorium. (AX 46, 12/9/04) The Union's counter proposal dated March 6, 2007 for Article 30, Section 2 stated (AX 47):

NOTE: Retaining current NLMA language. The phrase "considers the ideas of the Union" is impact bargaining as defined in Article 3 of the contract.

On March 16, 2007, the Agency counter-proposal dropped the "considers the ideas of the Union to avoid and/or mitigate the impact of a RIF ..." sentence and substituted the following (AX 48)

The Agency shall provide the Union an opportunity to suggest ways to avoid and/or mitigate the impact of a RIF.

On March 21, 2007, the Union counter-proposed (AX 49):

It is the Agency's policy to minimize the impact of budget shortfalls and broadcasting priorities on the lives and careers of its employees. The Agency shall inform all employees as fully and as soon as possible of plans or requirements for reduction in force or transfer of function. To avoid and/or mitigate the impact of a RIF and provide assistance to employees adversely affected by a RIF the Agency will negotiate for each RIF its negative impact; career transition services; establishment of training programs, and assistance to adversely affected employees. Any agreement reached in these negotiations will be considered an Amendment or Supplement to the Master Agreement.

On May 30, 2007, in response to the Agency Negotiator Poggioli's admitted demand for a "closed [RIF] article with no bargaining" (Tr. 9, p 59), the Union counter-proposed with a variation of language the Agency had agreed to with another union, AFSCME (AX 50):

If the Agency accepts the Union proposal for Article 30, Section 2:

Article 30 Section 2 Policy

No bargaining unit employees who have been employed by the Agency for more than 10 years will be separated from the Agency except by resignation, retirement, or death. This provision does not apply to removals for just cause

It is the Agency's policy to minimize the impact of budget shortfalls on the lives and careers of its employees. The Agency will inform all employees as fully as possible of plans or requirements for reduction in force or transfer of function. The Agency shall provide the Union an opportunity to suggest ways to mitigate the impact of a RIF.

Then the Union will accept the following:

Article 3

Impact and Implementation Bargaining: Negotiations regarding procedures management will follow in implementing decisions resulting from the exercise of its reserved rights under Section 7106 of the Federal Labor-Management Relations Statute and appropriate arrangements for employees adversely affected by those decisions, when such decisions concern a change in conditions of employment not covered by the Agreement.

The next day, May 31, 2007, the Union modified the above counter-proposal to read (AX 52):

To the maximum extent possible, the Agency shall not separate career bargaining unit employees with more than ten (10) years of service except by resignation, retirement, or death.

At this point Agency Negotiator Poggioli concluded that "now [the Union] position is we just won't have any RIFs at all. So we had nothing to work with. We declared an impasse [and] this is the last proposal that was exchanged on Article 30." (Tr. 9, p. 65) (Ms. Poggioli retired in September of 2007. The language of Articles 3 and 30 remain the same as they were in the 1993 NLMA.)

In sum, a close reading of the above-referenced proposals and counter-proposals shows that, by refusing to agree to the Agency's proposed changes in Articles 3 and 30 Section 2 of the 2005 NLMA, the Union succeeded in maintaining the status quo with regard to its right to request and require the Agency to engage in impact and implementation bargaining with respect to RIFs.

Agency Negotiator Poggioli's testimony that she believed Article 30 already meant no obligation to bargain is not credible, The record shows that management's term agreement negotiations' proposal dated January 8, 2004 contained changes in the existing language of Articles 3 and 30 that the Union immediately found unacceptable, As Mr. Shamble attested (Tr. 11, p. 65, UX 56):

Q. What did this (management proposal regarding Article 3) do to the contractual obligation to bargain RIFs?

A. Everybody knew, each side knew the provision in the 93 [NLMA] had to be tied together. The policy section in Article 30 and the definition section in 3. You lose one of those legs, you lose the requirement to bargain, contractual requirement to bargain. So I knew right away to look to see if anything was changed in that relationship [and found] the impact and implementation bargaining definition was changed. The wording is no longer the same as in '93 so you don't have the tie-in between [the] Article 3 Definition and the Policy Section [of Article 30, Section 2.]

For the Following Reasons the Agency's "Covered-by" Defense Is Rejected

First, the matters that the Union wanted to negotiate regarding the impact and implementation of the OCB RIF are not "covered-by" the NLMA. For example, and for obvious reasons, the NLMA does not cover every "appropriate arrangement" that might be negotiated for every employee whose position might be scheduled for elimination pursuant to a RIF. Moreover, the Parties have negotiated productive RIF Agreements before. Perhaps the most directly-applicable example of this is the "Relocation/RIF Agreement" negotiated regarding the move of the OCB's operations to Miami from Washington, D.C. in 1996. This Agreement covered such things as "reassignments to Miami," "job swap," "the effective date of the job swap," "a temporary period [ ] that the employee can work independently," "reasonable exceptions to the official reporting data based on the employee's individual circumstances," "relocation expenses" and "appropriate arrangements for the minimum level of safety if the FLRA determines that the union's proposal on the appropriate arrangements is negotiable"].31 (UX 7)

Second, to the extent the Agency's "covered-by" defense was motivated by Agency negotiators' belief that the Union would have come to the impact bargaining table in bad faith, using the negotiations primarily to delay the implementation of the OCB RIF as long as possible, and/or to use it as but "a starting point for constant negotiation over every agency action," the defense is rejected as self-serving and contradicted by evidence showing that the Parties successfully negotiated several RIF agreements over the years. (Federal Bureau of Prisons v. FLRA, 2011, WL 2652437 (D.C. Cir. July 8, 2011) citing National Treasury Employees Union v. FLRA, 452 F.3d 793, 797 (D.C. Cir. 2006) Had such bargaining taken place, there is good reason to believe the Parties could have reached agreement again. The Agency admits that impact bargaining over RIFs that occurred in the 1990's took a "reasonable" amount of time and did not unduly delay the RIFs themselves. The fact that later term agreement negotiations and impact negotiations took what the Agency believed to be an "unreasonable" amount of time does nothing to prove how long it would have taken in 2009 had the Parties engaged in good faith impact bargaining. Had the Agency been willing to train (pursuant to Article 30, Section 5(c)) and listen to Miami-based Union representatives Fernandez and Mora's knowledge of their co-workers' abilities; interests -- and controctual32 rights -- it is entirely possible that "appropriate arrangements" for most, possibly all, of the 16 affected employees in this case could have been agreed-to in a matter of weeks, not months obviating the need for this entire Grievance and Arbitration.

Three examples of what could -- and should -- have come out of impact negotiations in this case are the following: As Union representative Mora observed, had Union Vice President Niurka Fernandez been given an opportunity to take one of the vacancies elsewhere in the Agency, she might have opted to do so instead of "bumping" a Broadcaster junior to her, thereby being the proximate cause of his separation. A second example is that of Roxana Romero. Ms. Romero testified that, when she called in excited about a vacancy announcement for a public affairs position at the OCB asking if she qualified for "priority consideration", Senior HR Specialist Carroll Cobb informed her that she "did not qualify for 'priority consideration' because she was excepted service33" and that "her resume did not reflect the job description or [her] responsibilities when [she] was working in New York." (Tr, 3, p. 23-39) This demonstrates a fundamental misunderstanding on the Agency's part of the meaning of "priority consideration." Here, the Union correctly argues as follows (Un. Brief, pp. 79-80, emphasis added):

Priority consideration is a 'term of art' in federal employment law which means that 'an employee will receive bona fide consideration by the selecting official before any other candidate is referred for consideration and that the employee will not be considered in competition with other candidates and will not be compared with them. Pope v. Federal Communications Commission, 103 FMSR, 102 LRP 35686 (U.S. Ct. App. Fed. Cir. Nov, 27, 2002); [citations omitted] Priority consideration is provided in a number of different scenarios. For example, in Pope, an individual alleged that he was not accorded appropriate veteran's preference for an attorney position to which he applied at the FCC. In settlement, the Agency agreed to provide him priority consideration for future positions, which the Agency then failed to do. Reversing the MSPB, the Federal Circuit Court of Appeals held that the Agency had breached the settlement agreement because the selecting official essentially required the individual to compete for

positions for which he sought priority consideration. It then ordered the FCC to give true priority consideration, as defined above, for the individual for positions he sought.

This case is noteworthy and perhaps should be instructive to the Agency here. The individual to whom priority consideration was ordered by the Federal Circuit (because the Agency had agreed to it) was not apparently a previous Federal employee. Therefore, he did not stand in a position of having some type of previous competitive status. Nevertheless, the Federal Circuit found that he was entitled to a true priority consideration. It simply does not stand the test of common sense that somewhere here, by comparison, the Agency could not legally agree -- as they have via Article 30, Section 4.e -- to provide priority consideration (for competitive service positions) to employees who are in excepted service positions. It simply makes no sense that these employees would somehow be placed in a less advantageous position than someone who had not previously been a federal employee.

It is clear from her testimony at arbitration, that Senior HR Specialist Cobb applied her understanding of the applicable OPM rules to the employees affected by the 2009 OCB RIF, and she did so without any apparent reference to the NLMA's rules in this regard. Had the Agency informed her that it must put its contractual obligations "first," Ms. Cobb presumably would have informed herself about what "priority consideration" meant to bargaining unit employees involved in a RIF -- and she might have facilitated Ms. Romero's inquiry about the vacancy announcement that she saw instead of thwarting it.

Finally, a third example can be seen in the case of one of the RIFed employees, Salvador Blanco, known to be "fluent in French." (UX 66.1) Union Representative Mora identified a vacancy announcement for a French-speaking TV Production Specialist, a position he believed Mr. Blanco could have qualified for. On this point, it is worth noting here the language-related terms that the Parties negotiated into their May, 22, 2001 RIF Agreement covering the VOA's European Language Services. Amongst those terms were the following (UX 7):

Before issuing any RIF notices, the IBB Office of Personnel will contact Personnel Directors of other agencies which utilize employees with language skills, including but not limited to the U.S. State Department, Department of Defense, the Defense Language Institute, Commerce Department, USAID, NSA, CIA, FBI, RFE/RL, and RFA to inform them of the upcoming availability of language proficient employees and to request assistance in placing employees. Also the IBB will request that information on current and potential vacancies in relevant fields be provided, preferably electronically, to the IBB. When such information is received, IBB will make it available to employees so they may apply directly for positions.

Television: The Agency will provide an on-the-job learning opportunity for up to three affected employees to work in Worldnet Television to learn or improve skills related to television programming.

The Agency will provide an on-the-job learning opportunity for up to two affected employees to work as IRBs in the Russian branch. This opportunity is intended to assist employees in improving their Russian language skills in preparation to take the Russian language test.

All of the affected employees who were Broadcasters in this case were fluent Spanish-speakers, presumably all were fluent in English as well, and at least one was multilingual. It is fair to assume that all were at least trainable in another language if given the opportunities negotiated for the affected employees in the VOA's European Languages Division.

The Agency Violated a Binding Past Practice of Engaging in Impact Bargaining With Respect to RIFs Upon the Union's Request When It Refused to Do So With Respect to the 2009 OCB RIF

The record shows that a binding past practice of negotiating RIF Agreements (when the Union requested it) had evolved by 2009 when the OCB RIF occurred, (For extensive discussion of this standard of contract interpretation, See Elkouri, Id., Chapter 12, Section 7, "Role of Custom and Practice in

Interpretation of Ambiguous Language.") The Arbitrator rejects the Agency's argument that no such binding practice existed because not all RIFs were impact bargained. There is no evidence that the Union ever requested and was denied such bargaining before the 2009 OCB RIF occurred. In contrast, there are five (5) RIF Agreements in the record, some short, some consisting of several pages covering many issues of great personal significance to the individual affected employees, e.g. reassignments, career transition services, procedures for non-U.S. citizens, job opportunities and assistance, technician training program and placement opportunity, opportunity to prepare for specific language training, specific RPL lists and re-promotion priority, special benefits, negotiated RIF notice and effective dates, and the like all covering appropriate arrangements that go beyond those already negotiated in Article 30 of the NLMA. (UX 7)

As to Agency Negotiator Poggioli's complaints about how long it took to negotiate the 2000 and 2001 RIF agreements, she herself admitted that the earlier agreements were reached in much shorter time. It could have happened again. Only 16-18 Grade 12-13 positions were to be eliminated. Miami-based Union representatives Fernandez and Mora were vocally eager to help find other positions in the Agency that the incumbents might have been placed in rather than be separated, and now it is known that there were many, many vacancies in the Agency at the time. The Arbitrator concludes that, if the Agency had been willing to engage in good faith impact bargaining over the 2009 OCB RIF when the Union first requested it on August 24, 2009, agreement might have been reached before December 19, 2007, possibly preventing the RIF of all of the affected employees.

The Agency Failed to Prove the Bona Fides of the 2009 OCB RIF

Citing Merit Systems Protection Board (MSPB) ease law, the Agency acknowledges that it has the burden of proving the bona fides of the OCB RIF and, to do that, it must prove by a preponderance of the evidence that the RIF was necessitated by at least one (1) of the two (2) cited reasons specified in 5 C.F.R. Section 351.201(a)(2) -- in this case a "shortage of funds" and "lack of work."

The Agency also correctly argues that "[i]t is well settled that the Agency, not the [MSPB] is responsible for deciding whether to abolish or retain particular positions." (Agency Brief, p. 24) However, the Agency then (also correctly) concedes that "[a]n allegation that the decision to abolish a particular position was improperly motivated, however, goes directly to the question of the bona fides of the implementation of the RIF, and to that extent, it is within the Board's authority to review the agency action." (Ibid., emphasis added) As this is just such a case, it is also within the Arbitrator's authority to review (very carefully and in specific detail) the Agency's actions leading up to the RIF action at issue.

It should be said at the outset that the Arbitrator is not without sympathy for the OCB managers who were charged in 2009 to find ways of saving $4.2 million in costs to meet the demands of Congress in the Agency's approved Budget if/when it was finally passed.34 An unenviable task if ever there was one -- and ordinarily a management decision that is given due deference by the MSPB, the FLRA, arbitrators and the courts. Certainly this Arbitrator would give it such deference if the record showed management's decisions were primarily grounded in sound thinking about what would actually work in practice and not improperly motivated by the manager who decided which positions to eliminate. In this case that manager was then OCB Director Pedro Roig. For all the reasons set forth below, the Arbitrator finds that Mr. Roig's primary motivation for saving money through a RIF of bargaining unit employees (as opposed to other means of cost savings that were known to exist) was to get rid of certain employees who had been outspoken critics and/or who were Union activists.

The Agency acknowledges that it carries the burden of proof as to the bona fides of a RIF. It also acknowledges, however, that, "[a]n allegation that the decision to abolish a particular position was improperly motivated, however, goes directly to the question of the bona fides of the implementation of the RIF, and to that extent it is within the [MSPB's] authority to review the agency action." (Agency Brief, p. 24, citing Gandola v. Federal Trade Commission, 773 F.2d 308, 312 (Fed. Cir. 1985), emphasis added).

Following the MSPB's analyses of cases where allegations of "improper motivations" and "clear abuse of discretion" have been raised, the first question before the Arbitrator at this point is whether or not the Agency proved the OCB RIF was actually taken for any one of the reasons listed as permissible bases for a RIF. Concerning the agency burden of proof on the issue of motivation, the Board ruled in Losure v. ICC, 2 MSPR 195, 2 MSPB 361 (1980), 2 MSPR at 201-02, 2 MSPB 366:

The agency may establish a prima facie case on this element of its decision by coming forward with evidence showing a RIF [was actually] undertaken for any of the reasons specified in 5 C.F.R. Sec. 351.201(a).

The permissible bases for a RIF are set forth at 5 C.F.R. Section 351.201(a)(2) as follows:

Lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights, or reclassification of an employee's position due to erosion of duties when such action will take effect after an agency has formally announced a reduction in force in the employee's competitive area and when the reduction in force will take effect within 180 days.

The Agency cited "lack of work" and "shortage of funds" as the bases for the 2009 OCB RIF, and it argues that the RIF must be found bona fide if only one (1) of these bases is found valid. The Union counters that neither was the actual motivating reason for the OCB RIF, the RIF was simply used as a pretext for getting rid of certain employees (while simultaneously intimidating others) for reasons personal to them, i.e. Director Roig's anti-union animus as well as his desire to rid himself of employees who had voiced criticism of his management practices to Congress, the GAO, the State OIG, IBB nominees,35 higher-level managers in Washington, the outside media -- indeed practically anyone willing to listen.

Does either of the Agency's stated reasons for the OCB RIF withstand scrutiny? Or is there clear and convincing evidence that the Agency used them both as a subterfuge for accomplishing an impermissible agenda? We will take them one at a time:

"Shortage of Funds"

The Agency seems to regard a $4.2 million budget reduction as an ipso facto "lack of funds." For purposes of determining the bona fides of a RIF, however, they are not the same thing and should not be conflated. Granted, the budget reduction required OCB management to look for cost savings that could be achieved while still carrying out OCB's mission of broadcasting news to the Cuban public, but and this is critical Congress clearly directed the Agency to find as much cost savings as possible before it authorized a RIF. (See, for example AX 10, June 26, 2009 House Report) By his own testimony, then OCB Director Roig understood the critical importance of "sequence" in federal budgeting and personnel matters. (Tr. 5, p. 134) Putting this testimony into the context of the record as a whole, the Arbitrator finds that Director Roig knew from the July, 2008 and January, 2009 GAO Reports that he was charged with unsound contracting practices36 as well as causing low employee morale, ignoring union representatives' concerns, and intimidating some employees thereby creating fear of retaliation.37 More importantly, for present purposes, Director Roig knew that, by sequencing certain reassignments of certain employees (See "Lack of Work," below), he could shield employees whom he regarded as supporters and punish, maybe even get rid of, other employees who had spoken critically to GAO investigators -- all under cover of a probably-upcoming budget reduction that could be used to justify a RIF -- and no one would ever be the wiser. (He was wrong.)

What leads the Arbitrator to conclude that the RIF was engineered and targeted at certain employees for reasons personal to them? First, a close examination of the entire record. Second, the credible testimony of several Union witnesses, all of whom agreed that Director Roig was known for finding ways to hire/reward/shield some employees while penalizing/intimidating/retaliating against others. Third, the evidence is that Director Roig was affirmatively disinterested in finding as much cost savings as possible before implementing a RIF. For example, Mr. Roig did not request a Cost Study, and, on cross-

examination he admitted that, he "went to Congress several times to lobby against the cut on OCB, and I met with several senators, their staffers regarding these cuts." (Tr. 5, p. 26) Significantly, while he met with Senator Robert Menendez, he did not meet with Senator Byron Dorgan even though he knew Dorgan had reportedly proposed a $15 million cut partly because he (Dorgan) believed the Aero Marti signal was being "jammed" by the Cuban government -- and, by implication, was not worth its high cost where there were other, less-costly, means of transmitting news to Cuba.

The Arbitrator finds that then-Director Roig was improperly motivated when he intentionally disregarded possible cost savings that were clearly achievable with greater reduction in the Aero Marti plane's flying hours (where the Aero Marti plane was already under Congressional criticism, especially in the Senate) and/or greater reduction in the number of POVs (where OCB contracting practices were already under GAO criticism). (See AX 11, UX 40, 41) In sum, the record as a whole persuades the Arbitrator that this was no accident. Director Roig's instructions may not have "targeted" certain employees by name for a RIF, but they did lead his subordinates to assume that cost savings would also be found in a RIF -- and, therefore, less cost savings needed to be found in cuts in the Aero Marti and POV accounts.

"Lack of Work"

Although given ample opportunity38 to do so, the Agency failed to present a preponderance of persuasive evidence that the pre-RIF reassignment of certain employees to the Internet unit and reduction of TV Marti news broadcasts constituted either a reorganization that was properly motivated or that the programmatic changes made actually resulted in a lack of work for the affected employees. First, Director Roig's testimony in support of the "lack of work" justification is not credible, and Union testimony to the contrary is. The record shows that Director Roig's post-RIF reassignments of certain employees and re-hiring others as POVs were accomplished to correct for operational problems due to the RIF itself. Union representative Mora testified credibly to the effect that shortening TV news broadcasts created more work, especially for the TV Technicians, not less, Union Vice President Fernandez testified credibly that working eight (or six or four) different news stories, no matter how short, was more work for a Broadcaster, not less. In contrast to management witnesses' glossy testimony, Ms. Fernandez's explanation is concrete, clear, and convincing (Tr. V.2, pp. 193-95):

It's more difficult to work [eight different stories, no matter how short, than a few.] The reporters were asked, instead of working one news story or tow, they were asked to work in eight different stories about eight different subject matters. We were requested to put all that information in 50 seconds. So it takes more work to concentrate in eight different stories and to try to condense all information in 50 seconds and then go and edit individually each story. You have to not only write but you have to get video for each story. So if I was doing Darfur and then the Middle East and then I was doing Guatemala and Cuba, I had to get video for all of these stories, all of these different stories and sit down and edit these different stories with the editor and also get the chyron, the chyron are the words where it gives you the locator, where the action is taking place ... so each place had to have a different locator. All the characters, if I were selecting bites, identify all these people that were appearing in the eight different stories. So at the end of the day, it was more work for the reporters, it was more work for the editors and it was more work for the technical people in the studio because they had to at any given point and fix the lights and prepare for these mini newscasts as opposed to preparing and then doing half an hour and then working on other programming and coming back in the evening and preparing for the second newscast.

Another reason for finding that the RIF, as well as the programmatic changes, were both subterfuges for another agenda is this: While it is clear that there was ultimately a $4.2 million cut in the OCB's budget, the Senate Committee's greater proposed reduction was aimed at the Aero Marti signal that was believed to be "jammed" by the Cuban government. This fact alone should have led OCB managers to save money by cutting more than a half-hour a day the hours flown by the Aero Marti plane (a savings of $500,000) that was costing, according to the GAO, more than $6 million to operate. (UX 40) in other words, the budget reduction gave OCB management reason to look for ways of reducing OCB's costs, in particular ways that might reduce the disproportionately-expensive39 costs of transmitting the TV Marti signal to Cuba. However (and this was by express direction of Congress40 as well as the NLMA)

management was first to find ways that would result in the least reduction of encumbered positions. The evidence is that Director Roig had no interest in knowing what a Cost Study might show about the comparative cost savings of a RIF as opposed to savings that might be found elsewhere. Why such a lack of interest? Because he planned from the beginning to orchestrate a RIF that was aimed at employees for reasons that were personal to them, not for reasons having to do with the duties of the positions they held as TV Broadcasters and TV Technicians.

It is worth repeating a section of the NLMA at this point, Article 30 Section 3 is titled "ALTERNATIVES TO REDUCTION IN FORCE." It provides as follows (JX 2):

a. Cost Study. Prior to conducting a Reduction in Force, the Agency may conduct a cost study to determine whether instituting a furlough or retraining program for affected employees would be more cost-effective than conducting a RIF. ...

b. Consideration of Alternatives. Prior to effecting a RIF ... the Agency will whenever possible, consider accomplishing the goals otherwise achieved by a RIF through attrition and cost reduction efforts before abolishing positions. The Agency may also consider alternative means of effecting budgetary reductions, including transferring work from purchase order vendors to bargaining unit employees; furloughs; and job sharing.

There is no evidence anywhere in the record that Director Roig or any higher-level BBG manager consulted the above-referenced provision in the NLMA. Director Roig admitted that he never met with the Union regarding the RIF, and, at higher levels, the Agency was refusing to engage in impact bargaining with the Union. To say that relations between Union representatives and Agency managers (both in Miami and Washington) were "fraught" during 2009 is to put it mildly. That this was also came at the huge expense of the affected employees, however, not at the expense of the Agency, and it was the Agency that was in the wrong by refusing to engage with the Union constructively through impact bargaining.

The Union presented substantial evidence, both testimonial and documentary, that it was then-Director Roig who personally selected the specific positions to eliminate, and he did so as part of a bad faith plan to at least intimidate, if not actually get rid of his internal critics at the OCB. In contrast, the Agency's case consists mostly of generalized, unsupported assertions by management witnesses aimed primarily towards what could allegedly NOT be done to mitigate the effects of the budget cuts on members of the bargaining unit at the OCB.

Then-Director Roig's testimony is particularly unpersuasive and can best be characterized as evasive, self-serving, unsupported or contradicted by the record, consisting mostly of bare assertions. On cross-examination, he readily admitted that he did nothing personally to assist the affected employees to find other positions.

In short, then-Director Roig's testimony did little to persuade the Arbitrator that he sought to re-educate41 himself about the Agency's obligations under the NLMA if/when a RIF is legitimately required as a result of budget cuts and/or a lack of work. Instead, the Arbitrator is convinced by the record as a whole, that Mr. Roig foresaw the possibility of cuts to the OCB budget -- and he also saw the possibility that he could use said cuts as an excuse for RIFing certain bargaining unit employees who had opposed him in various ways. In short, he saw upcoming budget cuts as an opportunity to retaliate -- and he took it.42

The Agency Knew or Should Have Known in 2009 That the Management of the OCR in General, and Any Proposed RIF at the OCB in Particular, Required Closer Oversight by Management in Washington. Instead It Either Looked the Other Way or Actively Continued Then-OCR Director

Roig's Improperly-Motivated RIF Plan

The record shows that, by January of 2009, if not before, Acting IBB Deputy Director Danforth Austin, and, presumably other high-ranking managers in Washington, knew or should have known that many

employees at the OCB had expressed fears of retaliation if they spoke up against Director Roig's management practices (or because they had spoken up) in I.G. or GAO investigations. If Mr. Austin and others in Washington disregarded reports coming from the GAO as well as Miami-based Union representatives to that effect, they did so at their peril because those concerns were credited in the GAO Reports to Congress in 2008 -- and Congress itself expressed concern about the same things in a Report dated June 26, 2009 wherein it urged the BBG "to ensure that all the issues raised by the GAO are addressed by OCB." (AX 10)

Surely, since there was still no final budget passed until December 19, 2009 (the same day the RIF was made effective), higher management in Washington had ample time to look closely at Mr. Roig's total RIF plan and ask why, if nothing else, there had not even been a request (as expressly allowed for in Article 30 of the NLMA) for a RIF Cost Study. Considering that the GAO had reported that OCR Director Roig's management style and contracting practices were causes of concern, higher management knew or should have wanted to know the actual costs (and cost savings) of a RIF as opposed to, for example, the costs (and cost savings) of reducing the maximum possible number of POVs43 and/or the costs (and cost savings) of reducing the flying hours of the Aero Marti plane by more than just a half hour per day? Instead, higher management duly ratified everything Mr. Roig proposed, including reorganizing the radio and TV news operations in a way guaranteed to be controversial. Most importantly, for our purposes here, higher management seems never to have taken a close look at which particular positions Mr. Roig proposed to eliminate and whether there had actually been a sufficient effort to find ways to reduce the number of employees who would be RIFed.

The Agency Violated the NLMA by Improperly Restricting OCB Affected Employees to Assignments in Their Competitive Area and Failing to Make Reasonable Efforts to Comply With All

of the Requirements of the Article 30 Requirements in the NLMA as Well as the BAM

In addition to violating its own Manual of Operations (BAM) and Article 30, Section 2 by refusing to engage in impact bargaining, the Agency also violated many other NLMA RIF requirements when it wrongfully implemented the OCB RIF. Specifically:

Article 30, Section 5(b) was violated. On August 24, 2009, Union Steward Mora sent an Information Request to LR Specialist Michelle Stewart asking for "a detailed position description of all employees at the Office of Cuba Broadcasting," citing the NLMA, and stating that he "need[ed] this information in order to prepare for proposed RIFs of OCB employees by looking for alternatives to the cuts proposed by management ..." (UX 35) (Union Vice President Fernandez had made a similar request in May.) Ms. Stewart admitted that she responded to neither request. Similar violations occurred when Union President Shamble requested information from Mr. Jaiswal on September 4, 2009. By September 11, 2009, the Agency still had not provided the information requested and, in fact, did not provide it until directed to do so by the Arbitrator in October of 2010. This information should have been provided in a timely manner in order to allow the Union to prepare for impact bargaining and, hopefully, be able to identify other positions the affected employees might be able to fill instead of being separated. This Agency failure harmed both the Union and the affected employees, but especially the latter.

Article 30, Section 4(a)(1) and (3), (b), (c), (e), and BAM 761.3.b.(1) and (2) were violated as well. There is no credible evidence anywhere that the Agency made reasonable efforts to comply with requirements that it "utilize existing vacancies" and/or "reassign" employees to "a vacant position without regard to OPM's standards and requirements," "provide the employee with training," "give employees ... priority consideration" or "offer retraining" to any of the affected employees, "freezing vacancies ... assigning employees out of a unit ... in vacant continuing jobs on a Broadcasting-wide basis," or even "detailing employees on a reimbursable basis to other agencies." (MOA 761.3.b) On the contrary, it is clear from Senior HR Specialist Carroll Cobb's testimony that there was no effort to "look at vacant positions in and around the agency" (much less at other agencies that make up the Federal Service) for the affected employees despite the fact that Sections 4(b) and (c) (in contrast to (a)) expressly do not limit placement of affected employees to the competitive area (in this case Miami-Marathon).

Ms. Cobb provided no appropriate basis for failing to look at least Agency-wide in compliance with these provisions. She admitted that no one asked any affected employee if s/he was willing to foot the costs of relocation. She admitted that no one looked into possibilities of detailing affected employees. She applied an incorrect test regarding the contractual requirements regarding "priority consideration" insofar as the NLMA requires such consideration for placement "in the bargaining unit" (which includes the VOA) as opposed to placement "in the competitive area." Ms. Cobb, an employee in the Agency's Human Resources Department (as opposed to its Labor Relations Department) was familiar with the civil service rules and regulations for implementing a federal RIF, but she showed no similar familiarity with the requirements of the NLMA in this regard.

As to Ms. Cobb's understanding of the rules applicable to excepted service employees, it was Union Chief Negotiator Davis' unrebutted testimony that Article 30, Section 4's "priority consideration" provision was intended to apply both to employees in the competitive and excepted service. Ms. Cobb evidently did not understand this when she claimed the Agency could not legally place an excepted service employee into a competitive service position. The NLMA "priority consideration" provision requires that employees subject to a RIF be given "bona fide consideration by the selecting official before any other candidate is referred for consideration and [ ] the employee will not be considered in competition with other candidates and will not be compared with them." Pope v. Federal Communications Commission, 103 FMSR, 102 LRP 35686 (U.S. Ct. App. Fed. Cir. Nov. 27, 2002) In other words, whether an employee who is subject to a RIF is a competitive or excepted service employee is irrelevant when finding vacant positions they can be placed in, thereby keeping them (and their proven knowledge, skills and abilities) in the federal service while mitigating the effects of the RIF on them. Instead of making an effort to identify such positions, the record shows that the Agency actually discouraged excepted service employees even to apply.

Article 30 Section 4(f) was violated when the Agency offered nothing whatsoever by way of "retraining." Mr. Rubenstein's claim that the OCB had no funds for this is not the question; this is an Agency-wide obligation, not the OCB's as it is the Agency that is party to the NLMA.

Article 30 Section 6 requires the Agency to offer "a reasonable change of position" to RIFed employees and "[i]f the position is outside the competitive area, the notice will advise the employee of his or her entitlement to a reasonable amount of official time for relocation." Section 10(d) also allows the Agency to agree to pay "relocation expenses." (JX 2) The Union requested information about Agency-wide vacancy announcements, but was not provided this information until well after the December 19, 2009 RIF had taken place. As it is now known that there were many44 such vacancies elsewhere in the Agency that the affected employees might have accepted even if the Agency declined to pay relocation expenses (something it was contractually entitled to do), the Agency's refusal to impact bargain with the Union which was eager to help identify such appropriate arrangements seems willfully inexcusable. Furthermore, the Agency's argument that RIFed employees were eligible only for positions in the Miami-Marathon "competitive area" is patently incorrect. Section 6(a) clearly states that positions may be offered "outside the competitive area," and the employee is entitled to a reasonable amount of official time for "relocation." (JX 2, emphasis added)

Article 30, Section 10(a) requires that the Agency "will establish and maintain a reemployment priority list for [RIFed] employees [and] it will hire first from this list before seeking outside candidates for appropriate positions coming open during or after the RIF." (JX 2, emphasis added) This is a contractually mandatory requirement, and it applies to all bargaining unit positions (wherever located), all bargaining unit employees (whether in the competitive or excepted service), and it is not time-limited. Union Steward Mora reviewed the 250 vacancy announcements posted Agency-wide from July 2009 to October 2010 and identified 49 positions that he believed RIFed employees were qualified to fill. (UX 66, 66.1) The record contains no evidence that the Agency has "hired first" to a permanent position any employee from its OCB RPLs45 (AX 32, 33) other than TV Technician Forcucci who was rehired as a GS-12 TV Technician (Director) on or about August 19, 2010. (AX 32)

In sum, it was the Agency's responsibility to be certain that its contractual obligations towards all of the affected employees were carried out before (or while) also implementing the RIF according to other federal rules and regulations. This is so particularly where, as here, the contract specifically requires that employees subject to a RIF be "reassigned" "to the maximum extent consistent with the needs of the [federal] service to vacant positions "without regard to OPM's standards and requirements for the position" if they were minimally qualified and able to perform the work within 90 calendar days with training. (Article 30, Section 4(b), (c), (e), (f))

Article 30, Section 5(c) was violated. The Agency failed to brief Union representatives Fernandez and Mora adequately in spite of their frequent calls and e-mails asking for information. Agency witness Michelle Stewart's testimony to the contrary is not credible. In fact, the Agency did not "train" Union representatives at all, instead the Agency treated them as nuisances, and concentrated their efforts on trying to thwart them rather than educate and assist them.

Article 30, the NLMA's RIF provision, is detailed and lengthy no doubt in large part because the civil service RIF procedures are so complex. However, when all the provisions of Article 30 are read together, it is clear that the Parties intended that employees affected by a RIF be treated as humanely as possible and, importantly for our purposes here, to allow considerable flexibility in finding other positions they might fill -- including, but not limited to, offering them Agency positions "outside the competitive area" and "a reasonable amount of official time for relocation." In addition the Agency is required to "maintain and make available a list of Government-wide vacancies." (JX 1, Article 30, Section 6(a) Section 10(b), emphasis added)

Yet, in spite of the contractual requirement to make "every effort" to assist affect employees to find other available positions "outside the competitive area" and "Government-wide," the evidence shows that the Agency did nothing of the kind. Instead, it refused to engage in impact and implementation bargaining with the Union from the outset, thus preventing the Union from playing a constructive role in assisting affected employees by identifying possible appropriate arrangements for them (as it had successfully done in prior RIFs), it provided no meaningful RIF training to local Union officers Fernandez and Mora as required by Article 30, Section 5(c), it conducted no cost study, as allowed in Article 30 Section 3(a), it considered seriously no alternatives to a RIF, as required in Article 30, Section 3(b), and it made no "reasonable effort" to take any of the actions required in Article 30 Section 4.

In sum, for all of the aforestated reasons, the Arbitrator finds the Grievance meritorious in its entirety.

Remedy

For purposes of this case, the "affected employees" are determined to include all sixteen (16) RIFed employees and Ms. Niurka Fernandez-Arteaga46 who would not have needed to exercise her "bumping" rights had there been no RIF in the first place.

As the Agency failed to prove the bona fides of the OCB RIF in the first place, the Arbitrator finds that, but for the improper RIF, none of the afore-described employees would have been separated from the Federal Service or required to exercise their bumping rights. Accordingly, they shall all be reinstated to their prior positions and accorded full back pay, including benefits, pursuant to the terms of the Back Pay Act, 5 U.S.C. Section 5596.

A Status Quo Ante Order47 is warranted for the following reasons:

First, Notice Was Given by the Agency to the Union That a RIF Would Be Conducted at the OCB

Said notice was given in a letter dated August 4, 2009 from then-Chief of Employee and Labor Relations Harinder Jaiswal to Local Union President Timothy Shamble stating that "a reduction in force will be

necessary" of eighteen (18) encumbered bargaining unit positions at the OCB due to a "lack of work and shortage of funds." (Jt. Ex. 2.4)

Second, the Union Timely Requested Bargaining Over the Impact and Implementation of Said OCB RIF

Said preliminary request was in an e-mail message from Union President Shamble to Mr. Jaiswal dated August 24, 2009 stating that "AFGE Local 1812 will seek to mitigate the impact of any RIF on bargaining unit employees at the OCB in accordance with Article 30 Section 2 and Article 3 of the NLMA ..." In this message, Mr. Shamble also challenged the "lack of funds" justification as Congress had not yet passed a final FY 2010 State Foreign Operations and Related Agencies Appropriation Bill. (Jt. Ex. 2.6)

In response to a September 4, 2009 letter from Mr. Jaiswal stating that the Agency had Congressional approval to "take the administrative steps necessary to begin implementing the RIF, adding that the RIF would be conducted in accordance with Article 30 of NLMA, the Union immediately responded with an e-mail that included an Information Request "necessary for the Union to gain a full understanding of the facts and issues involved in order to prepare for negotiations which are called for in Article 30, Section 2 and Article 3 of the NLMA over a possible reduction-in-force." The Union concluded (Jt. Ex. 2.18, emphasis added)

Once the Agency provides the requested information and establishes that the Agency has a basis for claiming that there is a lack of work or lack of funds the Union will provide ground rules for negotiation and some preliminary proposals.

It is clear from the above, as well as later correspondence from the Union, (see, e.g. letter dated September 11, 2009) requesting release of Union representatives on the "RIF negotiating team" and a delay in negotiations "until Congress has passed the BBG FY 2010 Budget" (Jt. Ex. 2.21) that the Agency was on adequate, written notice that the Union intended to invoke what it believed was its right to engage in impact and implementation bargaining over the RIF. The Agency's contention at arbitration that the Union also (or instead) actually wanted to engage in substance bargaining over the terms of Article 30 is rejected as a willful misreading of the Union's stated intent in written correspondence.

Third, the Agency's Conduct in This Matter Was Egregiously Willful Throughout

First, as noted previously, the Arbitrator finds that then-Director Roig willfully disregarded other means of cost-savings because he actually preferred to use a RIF to retaliate against certain employees due to their outspoken criticism of his management practices and/or their Union activism.

Second, a close reading of the record as a whole shows that the two (2) driving forces behind Agency negotiators' refusal to engage in impact bargaining with the Union with respect to the OCB RIF were: 1) resentment at how much time it had often taken to arrive at agreement, and 2) resentment against the two Miami-based Union representatives (Niurka Fernandez and Oscar Mora48) who were arguably in the best position to identify placement opportunities and other appropriate arrangements that could have been agreed upon if impact and implementation bargaining had been allowed to take place. This attitude was especially evident in Agency negotiator Mary Poggioli's testimony; indeed she betrayed unwarranted impatience even with Agency Counsel at the arbitration hearing held years after she had retired in September of 2007. The same hostile attitude toward the Union was evident in the testimony and demeanor of Chief of Labor and Employee Relations Harinder Jaiswal and Labor Relations Specialist Michelle Stewart.

The Agency's hostile attitude toward bargaining in general and/or certain Union representatives in particular deserves little respect. If one were to draw it as a cartoon, it would show a surgeon arriving at the operating table with golf clubs in the background saying, "Sorry, the procedure this patient needs takes too long, and I don't like him anyway." In short, bargaining is part of the job that labor relations

professionals do. The best that can be said of resenting the time negotiation takes is that it is unprofessional whining. At worst, however, it can amount to willfully bad faith obstructionism. In this case, there is clear and convincing evidence supporting the Union's contention that the Agency: 1) first willfully refused to engage in impact and implementation bargaining over a RIF that higher-level management knew or should have known was crafted to target certain individual employees who were regarded as outspoken critics of a Director whose management had been criticized not only by the Union, but also by the State OIG, the GAO and, indirectly, by Congress; 2) then willfully pushed the RIF through, separating employees on December 19, 2009,49 the instant the budget was passed.

From the first notice in August of 2009 that the Union wanted to engage in impact and implementation bargaining, the Agency willfully chose to misread/misinterpret the Union's communications, intentionally confusing/conflating impact and implementation bargaining with contract bargaining, putting forward, instead, an erroneous application of the "covered-by" theory in hopes of avoiding its obligation to engage in impact and implementation bargaining with respect to the OCB RIF. The motivation for this conduct stemmed directly from the Agency's ongoing frustration at being unable to change the substance of Article 30 during contract/term agreement negotiations which were happening (or not happening) in 200950 at the national level at the same time as the OCB RIF was being planned.

In addition, the Agency willfully disregarded other provisions in Article 30 as it continued, despite vigorous, repeated objections by the Union, to implement the OCB RIF. For example, in spite of repeated requests, the Agency willfully failed to provide Union representatives meaningful RIF training as required by Article 30, Section 5(c). Instead, Agency personnel in Washington affirmatively rejected said requests with partial answers and/or directions to read the complex RIF regulations for themselves. Later the Agency willfully engaged in a variety of tactics intended to intimidate Union witnesses during the arbitration hearing including, but not limited to, by requiring that Union witnesses be escorted, hovering physically near the hearing room in the Miami OCB office, claiming without proving during the hearing that Union witnesses were improperly listening to conversations going on in the hearing room in Washington and seeing to it that Union Vice President Fernandez-Arteaga was publicly escorted "perp-walk style" out of the Miami office and barred from returning except under escort and only for Union business shortly before the arbitration hearing began.

Fourth, the Impact of the RIF on the Affected Employees Ranged From Severe to Extremely Severe

It is common knowledge that the labor market into which the RIFees were thrown in early 2010 and continuing has been one of the worst since the Great Depression. Therefore it is unsurprising that the impact of being suddenly unemployed was and continues to be severe. All of the affected employees testified that they were unable to find other positions, and the psychological/financial toll on themselves and their families continued to be severe. The testimony of one of the RIFees, Ms. Romano, is typical and compelling (Tr. V.3, pp. 241-43):

I had to give up my apartment ... [and] go live in an efficiency basement because I could no longer afford the rent. I had to leave New York because I couldn't live in New York with unemployment. I came back to Miami. I incurred those costs. I haven't been able to find a new job in almost a year. I have applied everywhere ... Monetarily, it's very difficult. I lived a comfortable life and now I can't even live check-to-check because there's just not enough to go around. I closed my 401K to pay for my apartment because I was actually terrified I was going to be homeless, that they were going to take my apartment away because I couldn't pay for it ... The feeling of just being rejected. I mean, after you send resume after resume and you have 15 years of experience and you aren't getting any phone calls, you start to question your own abilities. It's been a really difficult time ... I don't think I have ever been unemployed other than when I was in college. It's just been a really difficult ride.

Similarly, another RIFed employee, Mr. Barrera, testified that the impact of the RIF was "very terrible." He, too, had to lower his housing situation and also had been unable to find other work. In addition, he attested (Tr. V.4, p. 98):

One of the reasons I wanted to continue as an employee is because I have [had] open heart surgery so I need medical insurance ... to deal with problems with my heart. Since I left I have no insurance and I have not been able to go to the doctor because I do not have insurance to cover my expense. That has affected me, me and my family.

Although he was later reinstated,51 another RIFee, Mr. Forcucci, attested as follows (Tr. V.6, p. 12):

[Being RIFed] was stressful for myself, my wife, my family. I ended up seeing a physician, taking anxiety medication. The whole thing really affected me a lot. I decided to, once the RIF happened and I was done, I decided to start looking for jobs elsewhere. I sold my house. I don't have my house any longer. I am renting a condominium. My furniture is all in storage. It was a significant stressful impact at the time.

Fifth, the Agency Failed to Present Persuasive Evidence That a Status Quo Ante Remedy Would Significantly Disrupt or Impair the Efficiency and Effectiveness of Its Operations

On this point, it is worth quoting in detail a decision by the D.C. Court of Appeals, AFGE v. FLRA, 785 F.2d 333, 340 (D.C. Ct. App. 1986), stating that "the general argument that budget cuts (coupled with a claim that some disruption will result from status quo ante relief) is a legitimate reason for the FLRA to exercise its discretion to deny status quo ante relief will not be upheld." In fact, if that argument were accepted, the Court went on to say (Op. Cit, quoted in Union Brief, p. 43, emphasis added):

[i]t could be stretched to preclude effective relief in any case where the employer is motivated by budgetary considerations. But economic hardship is a fact of life in employment for the public sector as well as the private. Such monetary considerations often necessitate substantial changes. If an employer was released from its duty to bargain whenever it had suffered economic hardship, the employer's duty to bargain would practically be non-existent in a large proportion of cases. Congress has not established a collective bargain system in which the duty to bargain exists only at the agency's convenience or desire, or only when the employer is affluent. On the contrary, in the 'Findings and Purpose' provision of the Statute, Congress explicitly found, affirmatively, that collective bargaining 'safeguards the public interest' and 'contributes to the effective conduct of public business,' as well as concluding that 'labor organizations and collective bargaining in the civil service are in the public interest,' 5 U.S.C. Sec. 7101(a). These constitute the 'public policy of the statute.' (see NLRB v. I.H. Rutter-Rex Mfg. Co. supra) which Congress expected the Authority to vindicate, just as the Labor Board vindicates the Labor Act's comparable policy in the private area. Respondent invokes the provision of 5 U.S.C. See. 7101(b) which states that the Statute 'should be interpreted in a manner consistent with the requirement of an effective and efficient Government.' However, in the context of the specific congressional finds we have just quoted, supra, that desirable principle does not remotely suggest that the duty to bargain (under a collective bargaining agreement) about the impact and distribution of budgetary cuts or problems is to be mitigated, not enforced, or left unvindicated in the public sector. Federal agencies with collective bargaining agreements should not think that henceforth they can disregard, because of changes due to budgetary problems, their collective bargaining obligations, at the risk of no more than a slap on the wrist.

It should be noted that this particular RIF did not involve very many of the OCB's employees (only 16 were actually separated), and it did not involve shutting down or reorganizing a substantial part of the Agency's or even the OCB's -- operations. Where the RIFs and or reorganizations themselves caused minor disruption, the Courts, the NLRB and the FLRA have generally rejected the argument that restoring the status quo ante would be too disruptive to justify ordering it. (See, e.g., Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251 (9th Cir. 1978), Hood Industries, 273 NLRB No. 197 (1985), Dep't of Health and Human Services, Social Security Admin., Baltimore, MD and HSS SSA, Hartford District Office, Hartford, CT and AFGE Local 1164, 37 FLRA 278 (1990) and Army Corps of Engineers, Memphis District, Memphis, TN and NFFE, Local 259, 53 FLRA 79, 86 (1997))

Nor did the Agency provide credible record evidence supporting its argument that a status quo ante remedy would be disruptive because it would "cost" too much. Granted, it would cost money. However,

Agency CFO Buhler did not testify that the Agency could not afford to pay the likely $1.6 million cost of a status quo carte remedy, and she agreed it is the Agency that is party to the NLMA and must bear the costs, not its subordinate entity, the OCB. The evidence shows that the Agency's overall funding went up from 2009 through 2011, not down. Specifically, the Agency's budget for 2009 was (actual) $698,187,000, for 2010 it was (estimated) $733,788,000 and for 2011 it was (requested) at $755,143,000. (AX 56)

CFO Buhler testified that, using the average salary and benefits cost of a permanent employee as $100,000 per year, she estimated that the cost of a status quo ante remedy reinstating 16 RIFed employees would be approximately $1.6 million. Asked where that money could be found in the Agency's overall budget, she testified as follows (Tr. V, 42ff):

... [W]e would have to zero out the [management and employee] awards budget. We would probably look at the training budget to see, we spent some of that, some money out of that budget but whatever is remaining that would be pulled and we would have to stop training, and then anything that those two couldn't cover, we would look at, I guess, other contracts throughout the Agency. We would have to analyze all the contracts to see what we would be able to cancel. We also have to be mindful that when we sign a contract, there's usually a termination clause. We have to be mindful of which contracts. We couldn't use just any contract. We have termination costs and all kinds of other things that are built into that. That's the kind of things I would look at in trying to meet a $1.6 million requirement ...

Asked where she would look to fund a back pay award, Ms. Buhler responded that: (id pp 72-73)

The first place we look is the budget where those employees worked and then, if there are not sufficient funds there, we would look in other parts of the Agency budget ... It would include Agency direction [sic], the Voice of America, the Office of Cuba Broadcasting, Engineering and Technical Services, IBB management and support.

Considering that the Agency's estimated cost of $1.6 million is approximately 2% of the Agency's 2009 budget of $698,187,000, and considering that the FLRA found that a 2% increased cost to the Agency did not qualify as a sufficient disruption to deny status quo ante relief, the Arbitrator concludes that the Agency is able to find the money to fund a status quo ante make-whole remedy in this case and that reinstating the 16 RIFed employees to their prior positions will not be unduly disruptive to the Agency's effectiveness and efficiency in accomplishing its mission. (See Army and Air Force Exchange Service, Waco Distribution Center, Waco, TX, 53 FLRA 749, 763 (1997), DOE Western Area Power Admin. Golden, CO and AFGE, Local 3284, 56 FLRA 9 (2000), U.S. Department of Health and Human Services, Social Security Administration, Baltimore, MD, 36 FLRA 655, 673 (1990), PASS v. FAA, 104 LRP 15910, p. 10 (March 1, 2004))

Conclusion

This case is all about a RIF that never had to happen. The Agency failed to prove the bona fides of the RIF. The evidence does not support a "lack of funds" and/or "lack of work." Instead, the evidence is that, but for the improper motivations of then-OCB Director Pedro Roig, none of the affected employees in this matter would have been separated from the federal service. The record shows that the Agency willfully overlooked cost savings that were achievable and were sufficient to avoid the need for a RIF at the OCB in 2009.

Moreover, the Agency's actions in this matter were, from beginning to end, in willful disregard of the express directives of Congress ("urg[ing] the BBG to ensure that all the issues raised by the GAO are addressed by the OCB ... and urg[ing] the Director of Office Cuba Broadcasting to find alternative opportunities, offer job retraining ..." ( June 26, 2009 House Committee on Appropriations Report, AX 10) as well as of the NLMA (to "minimize the impact of budget shortfalls on the lives and careers of [the Agency's] employees" Article 30, Section 2, JX 1).

The Agency knew or should have known by at least July of 2008 that there were well over 100 contractors (POVs) working at the OCB in Miami (at an annual cost of "millions of dollars" according to the GAO) and that then-OCB Director Roig's contracting practices were suspect. (July 2008 GAO Report, "Weakness in Contracting Practices Reduced Visibility into Selected Award Decisions," JX 41) Certainly by January of 2009 the Agency knew or should have known that OCB employees were expressing fear of retaliation for having spoken up to GAO and/or State OIG investigators. (January 2009 GAO Report "Actions Are Needed to Improve Strategy and Operations" UX 40) In short, the Agency was on ample notice that "actions were needed" to improve employee morale at the OCB and end Director Roig's apparent abuse/misuse/overuse of the federal contracting system. When there was a $4.2 million cut in the OCB budget in 2009, instead of looking closely at Director Roig's dubious programmatic changes, staff reassignments, and list of positions he proposed for elimination, however, the Agency blithely approved all of the above and then adamantly refused to engage in good faith impact bargaining with the affected employees' Union in spite of the fact that the Union's Miami-based representatives, in particular, stood ready and eager to identify vacant positions throughout the Agency that affected employees might be offered in lieu of separation. Then, as if that were not enough, in implementing the RIF, the Agency disregarded the NLMA's broader RIF provisions, choosing instead to apply certain more restrictive RIF provisions set forth in the OPM's regulations 5 C.F.R. Part 351 -- all interpretations adverse to the affected employees before -- and after -- they were separated.

In sum, the record as a whole convinces the Arbitrator that this was an improperly-motivated RIF from the beginning, and it must be reversed in toto. It is therefore awarded as follows:

Award

I. The grievance is arbitrable as a whole.

II. The Agency violated the Statute and the Negotiated Labor Management Agreement (NLMA) in the matter of the 2009 OCB RIF. The Grievance is SUSTAINED in its entirety.

III. The Remedy is as follows:

A. STATUS QUO ANTE -- The Agency is ordered to take the following steps to restore affected employees to the status quo ante and make them whole:

1. Reinstate to their previous positions without loss of seniority or benefits, all employees who were separated or who were affected by "bumping" before the Union could fully negotiate and reach agreement with the Agency on impact and implementation of the OCB RIF.

2. Pay said affected employees full back pay, including interest, pursuant to the terms of the Back Pay Act, 5 U.S.C. Section 5596.

B. BARGAINING ORDER -- The Agency is further ordered to bargain in good faith with the Union over the impact and implementation of the RIF to the fullest extent of the law. If a RIF of some OCB employees remains necessary, for those employees, the Agency must, pursuant to Article 30 of the NLMA, "utilize existing vacancies consistent with the needs of the service, to place employees adversely affected by the RIF," including utilization of vacancies throughout the Agency (not simply within the OCB and/or the OCB's competitive area) and offer "reasonable changes of position" anywhere within the Agency, as well as, where it can be arranged, detailing them to other agencies within the Federal Service.

C. POSTING -- The Agency is ordered to post a notice acknowledging the Agency's improper failure to bargain over the impact and implementation of the RIF and confirming its intention to the bargain in good faith with the Union over the impact and implementation of any RIF in the future.

The Arbitrator shall retain jurisdiction over any dispute that may arise concerning the implementation of the remedy. Such jurisdiction may be invoked by written request of either Party.

The Arbitrator further retains jurisdiction to hear a petition for Attorney Fees should one be submitted by the Union.

1Ms. Alonso was called as a hostile witness by the Union: she did not volunteer. Agency Counsel assured her on the record that there would be no retaliation due to her testimony.

2By mutual agreement, the instant Arbitrator was authorized to hear the arbitrability question and the merits together as part of the same hearing.

3In the case of the OCB, the competitive area is Miami-Marathon, FL.

4The Parties stipulated that "Broadcasting-wide" means "Agency-wide."

5Agency witness Carroll Cobb stated that she knew, for example, of no prohibition against detailing an Agency employee to another Federal Agency such as the State Department.

6The grievance did not cite subsection (1) making it an unfair labor practice for an agency "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter."

7On August 4, 2000, the Union was given notice of the Agency's intention to eliminate the following positions (JX 2):

RIF Competitive Area: international Broadcasting Bureau. Miami-Marathon, Florida Competitive Service

Competitive Service Position Title Competitive Level TV Broadcast Technician GS-1001 0800 (5 positions) Electronics Technician GS-0856 0000 (1 position) Excepted Service Position Title Competitive Level Int'l Radio Broadcaster (Spanish) GS-1001 43QB 12 (3 positions) Int'l TV Broadcaster (Spanish) GM-1001 45QB 13 (1 position) Int'l TV Broadcaster (Spanish) GS-1001 45QB 13 (1 position) Editor (Television) GS-1082 45QB 13 (1 position) Int'l TV Broadcaster (Spanish) GS-1001 45QB 12 (4 positions) TV Production Specialist GS-1071 50QB 12 (1 position)

RIF Competitive Area: international Broadcasting Bureau, New York, New York

Excepted Service Int'l TV Broadcaster (Spanish) GS-1001 45QB 12 (1 position)

8According to then-Agency Chief Negotiator Mary Poggioli, the latter two (2) RIF Agreements took much more time to negotiate, and "no sooner had we signed [the 2001 agreement] than the union filed a grievance, saying that it couldn't be implemented because it had violated some staffing pattern. They had not brought up this violation at any point during all these weeks of negotiation. ... At this point, we said we will never negotiate with the union again. So it came to 2004 and we asserted our covered-by defense ... In 2007, we did the same thing." (Tr. 9, pp. 87-88)

9The 1993 NLMA was between the United States Information Agency (USIA) and the Union: the BBG is the successor to the USIA.

10The 1988 NLMA provides in Article 27 Reduction in Force, Section 2 (UX 54):

STATEMENT of PRINCIPLE -- When the Agency becomes aware of the necessity to conduct a RIF, it Will attempt to minimize the adverse affect [sic] on bargaining unit employees through appropriate means such as reassignment. attrition and positive placement efforts.

11The record indicates that the arbitrator in rotation to hear this grievance was Jerome Ross. Whether the grievance is before Arbitrator Ross or any other Panelist is unknown, and nothing said in this Opinion should be interpreted to apply to its merits.

12The main body of the grievance before this Arbitrator consists of two (2) pages: the attachments, which Agency then-Chief of Labor and Employee Relations Chief Jaiswal agreed are "part of the grievance" consisted of forty (40) more pages. Appendices A-K. (JX 2, 1-42)

13The 2001 NLMA between the international Broadcasting Bureau Voice of America and the American Federation of State. County and Municipal Employees, Local 1418 provides in pertinent part (UX 12):

Article L Work Jurisdiction -- Section 2. No AFSCMB-represented [Radio Broadcasting Technician] RBT employed in that capacity on a career or career-conditional basis on the effective date of this Agreement will thereafter be separated from BBG-IBB for the term of this Agreement, except by resignation, retirement, or death. ...

14Asked by the Arbitrator to clarify what he meant by "bargaining a RIF," Mr. Shamble responded that it was a "shorthand" way of saying that he meant impact and implementation bargaining only. "I can't negotiate the substance [of a RIF] but I negotiate the adverse impact on the employees." (Tr, 2. p. 76)

15Although still apparently employed by the Agency, Mr. Hagan was not called as a witness in this case.

16The record shows that, on August 16, 2000, Jim Hagan (for the Agency) and Timothy Shamble (for the Union) signed a "Negotiated Agreement between AFGE Local 1812 and the International Broadcasting Bureau Concerning Reduction in Force" consisting of nine (9) pages and covering forty-eight (48) separate aspects of the RIF that evolved from the abolition of the United States Information Agency (USIA) in 1999. (UX 7) (For purposes of brevity, these Agreements are referred to as "RIF Agreements") The record shows that a similar RIF Agreement regarding the 1996 relocation of the OCB from Washington, D.C. to Miami, FL was signed on July 24, 1996. The lead negotiator who signed this Agreement for the Agency was Mary Poggioli. On May 22, 2001, the Parties signed a RIF Agreement concerning the VOA European Language Services. Jim Hagan and Mary Poggioli signed for the Agency. Signing for the Union were Timothy Shamble and Barbara Markov. Similarly, on November 17, 1994, a RIF Agreement was signed between the Union and the Bureau of Broadcasting of the United States Information Agency, and, on April 23, 1996, a RIF Agreement was signed between the Union and the USIA applying "to those non-U.S. citizen employees employed in the United States at the Bureau of Broadcasting appointed by the Agency under the authority of the Smith-Mundt Act," (UX 7) All said RIF Agreements cover matters that go beyond, are more specifically tailored, or are different from what is already provided in Article 30 of the NLMA. For example, a "job swap" was arranged in the RIF

Agreement involving the relocation/RIF of the OCB to Miami; another called for a retention register and bump and retreat rights as well as separation pay for affected non-citizen employees; another negotiated the date RIF notices would go out and/or the effective date of the RIF. All of these RIF Agreements took months to negotiate, and none of the planned RIFs was actually implemented until after the Agreements had been signed. (UX 7, unrebutted testimony of Timothy Shamble, Tr. 2, p. 37ff.)

17It was Mr. Mora's testimony that all of the Technicians who were RIFed were active Union members, whereas all of the Technicians not RIFed were not. He also attested that the Producers who were assigned to writing and reporting tasks previously performed by RIFed International Broadcasters were not qualified to perform these tasks, and some came to him as Union Steward concerned that they would be evaluated on these new duties. Finally, he stated that TV Technician work is substantially more complex than Radio Technician work and that, whereas an experienced TV Technician can be trained for radio work in a week, it would take far longer to train a Radio Technician for television work. In July of 2009, Director Roig proposed to abolish twenty-five (25) encumbered positions (including four (4) management positions); fifteen (15) were in TV including five (5) TV GS-12 Broadcast Technicians. (AX 15)

18The record shows that in a July 24, 2009 memo to Danforth Austin, Director Roig stated that a time-limited NTE 1-16-10 (Special Assistant GS-301-13) position would be "vacated and abolished upon the expiration of its term." (AX 15) This position was held by Luis Zunega, said to be a personal friend of Director Roig's. On January 19, 2010 (a month after the RIF and 3 days after Zunega's time-limited appointment expired) a GS-14 Full-time Permanent position was posted. (UX 25) Mr. Zunega was hired for this position.

19Mr. Roig resigned on October 23, 2010, shortly before testifying at the arbitration hearing held in this matter.

20On July 9, 2009, Reuters carried a posting that said "The Senate committee also struck $15 million for the U.S. television service it beams into Cuba, known as TV Marti, after Democratic Senator Bryon Dorgan said the signal was jammed by the Communist government so no one there could see it. Differences between the House and Senate bills will have to be resolved before it can become law." (AX 11)

21According to the Agency, "6 RiFed employees were awarded contracts with OCB, A. Balda, A. Zayon, A. Mueller, G. Reynolds, S. Font, C. Forcucci. Mr. Forcucci has subsequently been hired into a position at OCB under a RPL referral." (AX 1, October 18, 2010 Agency Response to Union Information Request).

22The bargaining unit includes employees working in Washington, D.C., New York, NY, Greenville, NC, and Miami, FL. The Agency interprets the (undefined) word "service" in Article 30, Section 4 as Meaning the "Agency." The Union's interpretation broadens its meaning to the entire Federal Service. Insofar as the purpose of Article 30, Section 4 is clearly to expand, not narrow, the possibilities of "plac[ing] employees adversely affected by the RIF" in any suitable vacancy anywhere in the Federal Service, and indeed, the Agency advised RIFed employees to search "Government-wide" for vacancies posted on USAJOBS.com (AX 1), the Arbitrator adopts, for purposes of this decision, the Union's interpretation. In Article 30, Section 4 of the NLMA, "service" means "Government-wide Federal Service."

23Agency witness Michelle Stewart acknowledged on cross examination that she had been told by "many, many, people" that Mr. Moscato was Pedro Roig's nephew, that he was hired as Let Am Director during Roig's tenure as OCB Director, and that Mr. Moscaro's previous job was selling air conditioning parts. (Tr. 8, p. 58)

24The Union argues that the Agency violated 5 U.S.C. 7116 Unfair Labor Practices by interfering with the Ms. Fernandez's ability to represent Union employees by issuing her a Letter of Proposed Removal and escorting her publicly out of the building "perp-walk style" the day after the Agency was told she would be

a witness at the upcoming arbitration hearing. The Agency objected vigorously to any questions about the Removal Proposal on grounds that it was not part of the grievance and should not be "bootstrapped" into the grievance at arbitration. That objection is now sustained. The Arbitrator notes that the grievance listed 5 U.S.C. 7116(a)(5) and (8). but not subsection (1), which speaks to interference. (JX 2) Furthermore. Ms. Fernandez testified fully at arbitration and showed no signs of being intimidated.

25According to Ms. Fernandez, the eight (8) mini-newscasts were later reduced to five (5) or (6) "because they could not handle the volume of work." (Tr. 2, p. 196).

26According to the January 2009 GAO Report, OCB's budget for FY 2008 was $33.7 million, $18.2 million for salaries, $7 million for other operating expenses, and $8.5 million for transmissions. Of the latter $8.3 million, $6.1 million was dedicated to AeroMarti TV. (UX 40)

27Negotiating over the outstanding terms of the Master Agreement was the subject of an Institutional Grievance filed on March 3, 2009 claiming that the Agency was refusing to meet and negotiate on the previously-agreed upon schedule and respond to the Union's standing proposal of "rolling over Articles 3 and 30 into another 3-year agreement ..." (UX 5) There is no direct connection between this grievance and the one filed November 4, 2009 before the instant Arbitrator, they should not be confused or conflated, and nothing said in this Opinion should be interpreted to apply to any grievance except the one before this Arbitrator.

28Union Representatives Fernandez and Mora were not the only Miami-based professionals who were prevented from performing their proper roles during the OCB RIF. Called by the Union as a hostile witness, Miami-based Human Resources Specialist Maria Alonso testified that, although she was the only Human Resources Specialist in the OCB office, she speaks Spanish (where the DC-based Human Resources Specialists involved in implementing the OCB RIF did not), and affected employees were coming to her regularly with questions, she was nevertheless told by DC-based HR Chief Karen Shoultz that she should tell all employees that their questions must be sent to Washington. Shortly after the RIF, Shoultz directed her in front of a clerical employee that, if she (Alonso) wasn't going to shred her personal working files immediately, Shoultz and the employee "would have a shredding party." (Tr. 6, p. 137) Ms. Alonso declined to speculate on the motivation behind this order, and she found it demeaning, but she followed it nonetheless.

29On some occasions, for a variety of reasons having to do with what affected bargaining unit employees preferred and the like, the Union did not request impact and implementation bargaining for RIF. The Agency is not required to engage in such bargaining unless the Union requests it.

30Considering the hugely important effect on the careers of individual employees who are facing separation due to a RIF that successful impact bargaining can have when the Parties come to the table in good faith, the Agency's argument that it could lead to delay and/or "endless bargaining" must be emphatically rejected. The precise "appropriate arrangement" that the Parties could agree to for individual employees is not "covered-by" the NLMA for the obvious reason that doing so would result in a collective bargaining agreement of such unmanageable proportions and complexity that it might exceed all human understanding. Finally, whereas the arbitrator in Federal Bureau of Prisons case, supra, concluded that status quo ante remedy "would accomplish nothing," the Arbitrator here has reason to believe just the opposite. The record shows that all of the affected employees can be reinstated to an appropriate position somewhere in the Agency if the Parties will work together to find said "appropriate arrangement" for each of them.

31Two other things with respect to the 1996 OCB Relocation/RIF Agreement are noted: Among the signatories for the Agency was witness Mary Poggioli and among those for the Union was witness Timothy Shamble. Second, the Agreement specified under what exact circumstances OPM's procedures would be applied. The Agency will apply the Certification of Expected Separation procedures defined in 5 C.F.R 351.807, when appropriate." (UX 7)

32It is evident that, throughout this case, the Agency continued to believe (wrongly) that, as long as it applied the RIF rules set forth in 5 C.F.R. 351 correctly, it was also complying with the implementation procedures set forth in Article 30 of the NLMA. This is not the case. The Agency was contractually obligated to follow all of its negotiated Article 30 obligations first. (See Pope v. Federal Communications Commission, U.S. Ct. App. Fed. Cir. Nov. 27, 2002. Perry v. Dept. of the Army, 992 F.2d 1575 (Fed. Cir. 1993); Becker v. Dalton, 97 FEOR 1022 (EEOC Sept. 5, 1996).

33As noted earlier, only the Technicians among the affected employees were in the "Competitive Service," the rest were in the "Excepted Service."

34The Budget was finally passed on December 19, 2009, the same day as the RIF in this matter was made effective.

35It is noted that Union Vice President Niurka Fernandez was issued a Notice of Proposed Removal on October 6, 2010, shortly before the arbitration hearing in this matter began. The Charges were "1) Failure to follow Agency Time and Attendance Procedures" and "2) Inappropriate Behavior." The latter was for allegedly making [in July, 2010] "statements in the OCB newsroom in the presence of other employees that you had telephone conversations with Mr. Richard Lobo, the then nominee for a high level executive position with the BBG ... Specifically, you told other employees that Mr. Lobo informed you that he would close TV Marti and only 10 to 15 employees would still have jobs ..." (AX 63) The validity of the two (2) charges is not before this Arbitrator, and nothing said in the Opinion and Award should be interpreted to address them. The second charge is noted here simply to show that OCB management was keenly aware of Ms. Fernandez's efforts (whether appropriate or not) to find out everything she could with respect to the number of employees who might be RIFed -- information that the Union did not yet have.

36According to the GAO, "the OCB annually awards millions of dollars in contracts for talent services -- writers, reporters, and technical support -- needed to produce and broadcast news and entertainment programming ... IBB did not fully document in its contract files key information or assumptions underlying its decisions not to seek competitive offers ... (July 2008 GAO Report, UX 41) In its January 2009 Report, the GAO wrote in pertinent part that "Oversight efforts by [the BBG, IBB and the State OIG] identified three categories of concerns in recent years: poor communication by OCB management, low employee morale, and allegations of fraud and abuse." It also noted that "the State OIG acknowledged that [Roig's] management style has intimidated some employees ... [and] an OCB employee union representative indicated that in numerous cases, OCB management has ignored or insufficiently addressed union member's concerns. In addition some employees expressed fear of reprisal by managers if they raise concerns." (January 2009 GAO Report, UX 40)

37See FN above.

38In consideration of the burden-shifting, exceptionally complex, high-stakes, and hard-fought nature of this case, the Arbitrator permitted correspondingly-exceptional rebuttal and surrebuttal testimony. In addition, the documentary record gives new meaning to the word "voluminous."

39According to the 2009 GAO Report, of the $8.5 million spent by the OCB during FY 08 on transmissions. $0.1 was spent on the Radio Mambi contract, $0.3 million on AM radio, $0.6 million on Shortwave radio, $0.6 million on the TV Azteca contract, $0.9 million on Satellite radio and TV, and $6.1 million on AeroMarti TV. (UX 40)

40House of Representatives Committee on Appropriations Report 111-187 dated June 26, 2009 stated in pertinent part (AX 10, emphasis added):

Broadcasting to Cuba ... The Committee is concerned with the recent findings by the (GAO) that despite efforts by the BBG, there is still a lack of reliable data on how much of the radio and television signals can be heard and seen in Cuba and that there is a need to improve the (OCR's) strategy and operations.

Towards this end, the Committee concurs in the proposal to change the news format for TV Marti by replacing the two evening news programs with news updates on the half hour and to convert Radio Marti to an all news format. The Committee further urges the BBG to ensure that all the issues raised by the GAO are addressed by OCB. The Committee understands that there may be downsizing in the Cuba Broadcasting workforce due to the restructuring of programming and urges the Director of Office of Cuba Broadcasting to find alternative opportunities, offer job retraining, or utilize buy-out and voluntary early-out authority for those affected employees.

41The record shows that, in May of 2004, Mr. Roig expressly recognized the Agency's obligation to engage in impact and implementation bargaining in the event of reorganization or RIF. (UX 42, Letter to Niurka Fernandez)

42It is also possible, albeit unsupported by sufficient evidence, that then-Director Roig also saw RIFing certain employees as an opportunity to justify hiring (or re-hiring) certain selected persons as POVs preparation for the possibility that TV Marti might be privatized. His testimony at arbitration was as follows (Tr. 5, p. 100):

Q. By Ms. Self. Mr. Roig. have you in the past or are you presently involved in attempting to privatize any aspect of Marti?

A. What do you mean by privatize? The answer is no. What do you mean by privatize?

Q. I think what I mean by privatize is, are you involved in efforts to create programs for Marti, to sell to Marti, yourself and together with Mr. Blaya [phonetic]?

A. No.

If this motivation played any part in Mr. Roig's plan to RIF some employees and rehire some as POVs, it, too, would have been improper.

43Of the roughly 176-177 POVs under contract with the OCB at the time, Mr. Roig said he cut 53. Union Vice President Fernandez testified that, in her professional opinion, only 2 or 3 of the POVs remaining perform work that could not be performed by some of the RIFed employees, e.g. the economist expert knowledgeable about Marxism and the makeup expert. It is worth noting here that Mr. Roig's contracting practices were specifically criticized in the 2008 GAO Report which noted that "OCB annually awards millions of dollars in contracts for talent services -- writers, reporters, and technical support" and was, in fact, titled "Weaknesses in Contracting Practices Reduced Visibility into Selected Award Decisions." (UX 41, emphasis added) The evidence further shows that, during budget-related discussions in 2009, Senator Byron Dorgan was not the only critic of the OCB; Senator Russ Feingold had reportedly written to President Obama saying that OCB's "programming is a relic of the Cold War, falls short of journalistic standards and is a prime example of wasteful government spending at a time when we should be reducing the deficit." In the Preface of the Senate Foreign Relations Committee's April, 2009 Report, recommending moving Radio and TV Marti's operations from Miami back to Washington, Senator John Kerry agreed, adding that "allegations of cronyism [ ] have dogged the program since its creation." (UX 33) Yet another indication that the OCB's "nonsalary" expenses were under Congressional scrutiny is found in the testimony of the Agency CFO's testimony: "We have, there is a requirement, I believe, for OCB that for TV Marti and that is the nonsalary is [sic] $5.5 million and we get inquiries from the appropriators on the status of our spending ... are [we] keeping to that." (Tr. V, p. 33) With this level of interest and/or criticism coming from Capitol Hill, it is inconceivable that Washington-based higher-level Agency management did not know that Mr. Roig's contracting practices were suspect and that considerable cost savings were achievable by cutting POVs and/or the Aero Marti contract before implementing a RIF of permanent federal employees.

44Union Steward Mora identified as many as 49 vacancy announcements for positions he believed certain named RIFed employees were qualified to fill had the positions been offered to them on a priority consideration basis before the RIF or reemployment priority list (RPL) basis afterwards. (UX 66.1)

45The Arbitrator notes that, although Article 30 Section 10(a) requires the Agency to establish and maintain a Reemployment Priority List (RPL) with the names of all bargaining unit employees who are RIFed, the Agency apparently expects employees to apply to be put on an RPL. ("Reemployment Application Form") It is agreed that 16 OCB employees were RIFed, but the RPL maintained by the Agency contains the "applications" of only 3 Competitive Service employees (TV Technicians Carlos Herrera, Richard Martinez, and Charles Forcucci) and 6 Excepted Service employees (Int'l Broadcasters Aida Balda, Saladore Blanco, Alberto Mueller, Gioconda Reynolds, Angel Zayon, and Roxana Romero. (AX 31 33) On this record, the most likely explanation for this discrepancy is that the other 7 RIFed employees were not adequately informed that they should submit applications if they wanted to be included on an RPL. This was error on the Agency's part, and it should be corrected.

46It is noted that Ms. Fernandez-Arteaga is subject to a October 6, 2010 Proposal to Remove her from the Federal Service for alleged time and attendance violations and inappropriate behavior. (Ag. Ex. 63) The merits of that adverse action is not before this Arbitrator, and anything said in this Opinion and Award should not be interpreted to apply to it.

47The Status Quo Ante Order covers Mr. Fernandez-Arteaga insofar as she "bumped" a less-senior employee in order to retain her job. She shall be reinstated to her previous position and compensated for lost pay, if any, pursuant to the terms of the Back Pay Act.

48Both Fernandez and Mora are seasoned broadcasting professionals who have intimate knowledge of the tasks involved in Broadcaster and Technician positions at the OCB in particular as well as at the Agency in general. Mr. Mora holds a Bachelor's degree in Broadcast Production and was with the OCB at its federal inception in 1991 where he has held the title of Director for twenty (20) years.

49It bears remembering that the exact effective date of a RIF (on an individual or group basis) is negotiable during impact and implementation bargaining. This being so, there was no absolute need to set the RIF date in this matter a few days before Christmas. The fact that the budget was finally passed on December 19, 2009 was irrelevant.

50On July 25, 2005, the Parties signed a Memorandum of Understanding Concerning a One-Year Hiatus in Bargaining the Term Agreement. (UX 5) The MOU stated that the following articles were opened by the Parties but still not agreed upon and would be rolled over for one year: Articles 3, 14, 20, 22, 23 and 30. Negotiations continued erratically in subsequent years, and some progress was made. On February 4, 2009, Union President Shamble e-mailed LER Chief Jaiswal proposing that Articles 3 and 30 be rolled over "in their current form." (UX 5) In sum, Articles 3 and 30 remained the same as they had been for years during the time of the OCB RIF at issue in this matter.

51According to Union Vice President Fernandez, Mr. Forcucci was reinstated because the situation in the Technical Department was "chaotic" without him. "They really needed his services because he was an employee that could be technical director, could edit, could do camera and he just knew how to do many things. Because the load of work increased, Mr. Forcucci was asked to stay and lend a hand after he was given his notice of separation and he did but some days, he was looking for a job so he will, that day, not show up and then there was chaos in the newsroom. So finally, they offered Mr. Forcucci to bring him back to the Agency as an employee and I think that his position was reinstated. (Tr. 2, p. 227)

SuzanneR.ButlerPh.D., J.D.

Statutes Cited

5 USC 7116(a)(8) 5 USC 5596 5 USC 7106(a) 5 USC 7122 5 USC 7116(a)(5) 5 USC 7121(a)(1) 5 USC 7116 5 USC 7118 5 USC 7101(a) 5 USC 7101(b)

Regulations Cited

5 CFR 330.203 5 CFR 351.201(a)(2) 5 CFR 351.201(a) BAM 761.3.b.(1) BAM 761.3.b.(2)

Cases Cited

8 FLRA 604 67 FLRA 934 102 LRP 15615 61 FLRA 688 108 LRP 13346 107 LRP 50876 108 MSPR 186 452 F.3d 793 102 LRP 35686 773 F.2d 308 2 MSPR 195 2 MSPB 361 785 F.2d 333 578 F.2d 251 273 NLRB No. 197 37 FLRA 278 53 FLRA 79 53 FLRA 749 56 FLRA 9 36 FLRA 655 104 LRP 15910 992 F.2d 1575 97 FEOR 1022

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