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Rulings Favor Preference Eligible Employees
Burrus Update #6-02, March 25, 2002
Last year, the national union initiated an appeals process providing legal assistance for members who are preference eligible veterans and who have suffered reductions in grade due to USPS excessing and reassignment. The reductions that occurred with the introduction of the FSM 100 and the TACS systems replaced higher-level preference eligible employees without affording them their rights under the law.
The Merit Systems Protection Board (MSPB), which has jurisdiction over these cases, recently ruled in support of the union's position in several of the early cases.
In Burger v USPS, Docket Number DE-0351-00-0167-1-1, the board held that "even if the appellants bid to lower-level positions, they did so under circumstances clearly indicating that there were no positions at their current grade levels to which they were entitled under the collective bargaining agreement. In other words, the agency's demoting the appellants to lower-graded positions was the functional equivalent of confirming that there no were no positions at their former grade levels to which they were entitled."
In Blees v USPS, Docket Number CH-0351-01-0520-1-1, the board ruled that, "In Di Pietro, the Postal Service made the same argument it does here, that an assignment to a lower graded position with retained pay does not constitute a demotion. The board concluded that De Pietro suffered a demotion, notwithstanding his receipt of indefinite retained pay, with his assignment to a lower graded position. Accordingly, I find the agency released the appellant from his competitive level and assigned him to a lower-graded position without benefit of the RIF [reduction in force] procedures to which he was entitled."
In both cases the Postal Service cited the memorandum of understanding between the USPS and APWU permitting the reassignment of preference eligible employees to vacancies at the same level or at a higher level or to the position of the most junior non-preference eligible employee at the same grade. The board rejected this argument.
In Capece v USPS, Docket Number NY-0351-02-0042-1-1, the board found that, "the undisputed facts establish that the appellant voluntarily accepted a lower-graded position with saved pay. Granted, he was concerned that if he did not bid for a lower-graded position, the agency would have assigned him to another PS-6 position but on the night shift, despite the fact that he had worked on the day shift for several years. The fact remains that the agency assured him that he would have obtained a PS-6 position had he declined to bid for a lower-graded position. Thus, he understood that he had a choice. Simply because his choice was an unpleasant one does not render the action involuntary," the board said.
In its decisions the board has established clear precedents that preference eligible employees may not be removed from their competitive level with an offer of saved grade absent a RIF. The APWU National Agreement prohibits a reduction in force of protected employees.
Preference eligible employees who have suffered reductions in grade who have not initiated MSPB appeals should do so and contest management's right.
William Burrus
President
