Department of Veterans Affairs, VA Regional Office, St. Petersburg, Florida and American Federation of Government Employees, Local 1594, 0-AR-3582, May 16, 2003, 58 FLRA No.

FLRA turned down the agency's exceptions to an award in which the arbitrator rejected the agency's claim that the agency's suspension of a flexiplace program was protected by its § 7106(a)(2)(D) right to take whatever actions necessary to carry out the agency's mission in emergencies. The agency's increasingly heavy workload did not rise to the level of an emergency within the meaning of § 7106(a)(2)(D). Department of Veterans Affairs, VA Regional Office, St. Petersburg, Florida and American Federation of Government Employees, Local 1594, 0-AR-3582, May 16, 2003, 58 FLRA No. 133.

In response to new workload standards, management of the regional office temporarily suspended the memorandum of understanding (MOU) establishing a flexiplace program. It did so without consultation with the union, as required by paragraph 12 of the MOU. A grievance was filed and referred to arbitration.

The agency argued that it hadn't violated the MOU because an emergency existed and under § 7106(a)(2)(D) it had the right to take necessary steps to deal with that emergency. The arbitrator was unpersuaded. Relying, in part, on a dictionary definition of "emergency" as meaning a "sudden state of danger, requiring immediate action," the arbitrator concluded that the agency's action wasn't in response to an emergency. He accordingly found the agency violated the MOU and ordered a make-whole remedy, the immediate processing of applications for flexiplace, and the posting on bulletin boards of a notice telling all employees that the MOU's flexiplace program "is in effect."

The agency filed exceptions, arguing, among other things, that the award violated section 7106(a)(2)(D). FLRA disagreed.

Management's right, under § 7106(a)(2)(D), to take whatever actions may be necessary to carry out the agency's mission during emergencies includes the right to: (1) independently assess whether an emergency exists, see, e.g., AFGE, Locals 696 and 2010, 29 FLRA 1174, 1175 (1987); and (2) decide what actions are needed to address the emergency, see, e.g., NFFE, Local 1655, 49 FLRA 874, 875-76 (1994) (citing Tidewater Virginia FEMTC, AFL-CIO, 31 FLRA 131, 132 (1988).

However, the Authority has never held that, pursuant to § 7106(a)(2)(D), an agency is free to label any particular set of circumstances an emergency and act unilaterally.

FLRA noted that "an agency is not necessarily free of any evidentiary burden with respect to the exercise of its rights under § 7106[.]" It cited cases in which it has upheld decisions by ALJs and arbitrators who had found that an agency's claim that an emergency existed was unsupported by the record -- see Treasury, 41 FLRA 860, 876 (1991) and AAFES, 25 FLRA 740 (1987). By contrast, in Customs Service, 29 FLRA 307 (1987), it adopted the ALJ's decision finding no violation for failure to give notice of a change because "Congressional pressure and the intelligence information concerning the illegal drug shipments created an emergency situation which necessitated immediate secret action. I further find that the special operation might well have been compromised had the Respondent given the Union timely notice and the opportunity to bargain over the substance of its decision to close the West Secondary Lot to employee parking prior to implementing its decision." FLRA went on to say the following:

[A]gency claims of an emergency justifying unilateral action are not unreviewable. Under Authority precedent, where such claims are not supported by the record, they will not be sustained.

Although the Agency has demonstrated that the regional office faced an increasingly heavy workload, we agree with the Arbitrator that the circumstances presented here do not rise to the level of an emergency within the meaning of § 7106(a)(2)(D). Specifically, the Agency has not shown that the Arbitrator's finding that the record did not establish that an emergency existed is legally deficient. It is unnecessary, therefore, to address prongs 1 and 2 of the BEP framework.

We report this case because there is very little case law on what constitutes (or does not constitute) an emergency. In the circumstances of the case at bar, involving the suspension of a flexiplace program, the increase in workload in this case didn't "rise to the level of an emergency within the meaning of § 7106(a)(2)(D)."