Preference-Eligible Employees Should Look to the CBA

(This article by then-Executive Vice President Cliff Guffey appeared in the November/December 2009 issue of The American Postal Worker magazine.)

Federal law grants preference-eligible employees specific protection from Reductions in Force (RIFs), and gives them the right to appeal to the Merit Systems Protection Board (MSPB) if they believe their rights under Chapter 35 of Title 5 have been violated. Those rights do not prohibit preference-eligible employees from being RIFed; they simply state that veterans will be the last to go, and only after a series of procedures have been followed.

To circumvent these protections, postal managers gave shown uncharacteristic creativity. They have concluded that if they offer an attractive lower-level assignment and the veteran accepts the offer, the assignment may be considered voluntary.

Therefore, management argues, the veteran would not have MSPB appeal rights. (In some instances, management has made such offers, even where duty no assignments exist).

But management’s conclusion fails to consider the contractual bar to RIFs that has been contained in Article 6 of every Collective Bargaining Agreement for decades.

In fact, the National Agreement offers greater protections to preference-eligible employees than those found in the U.S. Code. Preference-eligible employees who have achieved protected status under Article 6 cannot be RIFed, including through a “reduction in grade.”

And non-protected preference-eligible employees may be “reduced in grade” only after certain other Article 6 procedures have been followed, including contractual RIF procedures.

Any reassignment to a lower-level position — of either a preference-eligible or non-preference-eligible employee — while excessing is occurring constitutes an “involuntary action” under the terms of the APWU National Agreement.

Whether Waiving Matters

So, while a veterans-preference employee may “waive” his individual legal rights under Title 5 of the U.S. Code, the APWU asserts that no employee can waive his rights under the Collective Bargaining Agreement, unless the contract expressly permits such a waiver.

As the Postal Service’s Vice-President of Labor Relations, Joseph Mahon, stated in a 1996 letter to USPS Area vice presidents, “we should continue to use Article 12 reassignment procedures unless it is apparent that a veterans-preference eligible will be adversely affected (placed in a lower grade), at which times Article 6 provisions will be utilized.”

It is the APWU position that even when a waiver has been signed, if a preference-eligible employee accepts a lower-level duty assignment during excessing, an Article 6 RIF has occurred.

This means that the excessing assignments should be considered improper assignments.

Alternative Scenarios

These scenarios are also presenting themselves where the APWU believes management is violating Article 12 and/or Article 6:

In one scenario, management leaves preference-eligible employees in the installation and designates them as “unassigned” while senior employees not given that option are excessed to lower-level assignments, other crafts, or other installations.

In another scenario, management leaves preference-eligible employees in lower-level (non residual) assignments that were not offered to more senior impacted employees.

Our Demand

The APWU has demanded that the Postal Service administer Article12 without exceptions for preference-eligible employees. To do otherwise would violate the seniority rules of Article 12. The APWU also demands that the Postal Service respect the rights of preference-eligible employees, per Article 6, to not be subject to RIF actions, including reductions in grade, once they have achieved protected status under Article 6.

Management has cited a 15-year-old case, Campbell v. Dept. of Treasury (61 MSPR 99), to support its contention that to determine whether an employee has been RIFed, the MSPB requires agencies to compare the representative rate of pay when employees during a reorganization are reassigned to positions in different pay schedules.

This argument, however, has no clear relevance to reassignments in the Postal Service, where employees are reassigned to lower-level positions within PS schedules, including positions in both APWU and non- APWU crafts. Through Article 6, the APWU has challenged this application of “representative rates” in the reduction in grade of preference-eligible in the PS salary schedules.

We suggest that veterans-preference-eligible employees challenge this infraction before the MSPB.

A Privilege for Me to Serve

On Sept. 12, I was privileged to attend a wreath-laying ceremony at the Tomb of the Unknown Soldier at Arlington National Cemetery. The memorial grounds are managed by the Department of the Army, and the ceremony was the result of a formal request made six months earlier by Moe Lepore, general president of the Boston Metro Area APWU.

Before dozens of union members and their families, the wreath was placed in honor of all APWU veterans, living and dead, and their families. Among the Boston Metro Area members taking part in the ceremony was Kevin Jones, whose son, First Lieutenant Ryan Patrick Jones, was killed in Iraq in May 2007.

I’ve been to other such events at Arlington, and they never fail to stir my emotions deeply. It was an honor to be at the ceremony, just as it was to serve in the U.S. military myself.

During the ceremony, I also was reminded that it is also an honor to serve members of the APWU, whether they are veterans or not.