Another Big MSPB Win
For Veterans Preference-Eligibles

Burrus Update #50, Sept. 20, 2001

Another big MSPB win for preference-eligibles who were reduced in grade without the implementation of the RIF procedures. As previously reported in an UPDATE, the Veterans' Preference Act requires that a preference-eligible employee may be reduced in grade only through the RIF procedures and when reduced must be provided notice of appeal rights to MSPB. The APWU national agreement prohibits a RIF of any employee on the rolls on November 20, 1998, or who has achieved six years of continuous service. Nevertheless, postal management has reduced preference eligibles in grade without conducting a RIF or notifying employees of their appeal rights.

In a previous UPDATE, I informed the membership of a landmark MSPB decision deciding that a preference-eligible employee who bid to a lower lever position must be restored to his previous grade 6 because of the USPS failure to abide by MSPB regulations. The most recent decision is Ernest M. Yohn, III v United States Postal Service, dated September 10, 2001. The employee was a former LSM operator whose job was abolished and after being declared unassigned, he bid to a lower level position. After reading the information provided in the UPDATE, he filed an MSPB appeal.

The administrative law judge ruled that Aan assignment to a lower-grade position constitutes a RIF demotion even when the employee voluntarily applies for or is offered an assignment to that position, as long as the assignment was made after the agency had informed the employee that his original position had been abolished and that he had not been selected for assignment to a position at his former grade level.

In defending their actions, the Postal Service argued that "the appellant did not have to bid on the lower grade position but could have remained indefinitely in his unassigned regular clerk position at the same grade and pay. In addition, it states that there were vacancies at the PS level 6 grade for which he could have successfully bid based on his seniority. And it refers to the fact that he acknowledged on appeal that he bid for the lower-graded position for personal reasons.

Charlie Robbins, President of the Palm Beach Area Local, and Eileen Meginley, Steward, are responsible for this major win and are to be congratulated.

Bill Burrus
Executive Vice President

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