Appeals Pending in Important Cases Affecting Preference-Eligible Veterans

(This article by then-Executive Vice President Cliff Guffey appeared in the May/June 2004 issue of The American Postal Worker magazine.)

Any veterans' preference-eligible employee who gets a notice that his or her duty assignment has been abolished and that he or she will become unassigned, should immediately ask a manager whether there are duty assignments available in the same level.

A case now pending before the Court of Appeals for the Federal Circuit, suggests that employees would be wise to ask the question.

The case concerns eight Level 6 FSM Operators at the Cincinnati P&DC who in 2000 were told that their duty assignments had been abolished and that they could bid on lower-level duty assignments. If they bid, they were told, they would have saved grade and pay.

Although some bid and some did not, each eventually performed the duties of lower-level positions ¨ each took on a lower-level assignment, with saved grade pay at Level 6. Each employee also filed an appeal with the Merit Systems Protection Board (MSPB), arguing that their reassignments constituted a demotion, and that they were denied their right to protection against an involuntary Reduction-In-Force. Under the Veterans' Preference Act, a qualified veteran may not be placed in a lower-level assignment involuntarily; paying the employee at the "saved grade" rate does not satisfy the law.

In Burger v. USPS in 2001, the MSPB decided that the Collective Bargaining Agreement allowed the Postal Service to offer lower-level vacancies to the employees only if there were no vacancies at the same or higher salary level. The Burger ruling seemed to confirm that management's decision to assign them to the lower-level positions was the functional equivalent of declaring that there were no positions at their former levels to which the appellants were entitled.

Following this ruling, the Postal Service notified the MSPB that it was rescinding the abolishment of all eight FSM Level 6 duty assignments held by the employees, then moved to have their appeals dismissed for lack of jurisdiction. The Administrative Judge ruled in favor of the employees and the Postal Service appealed.

On review, the employees' appeals were dismissed. In a decision known as "Burger II," the MSPB, now controlled by President Bush's appointees, reconsidered and "clarified" an earlier ruling, in essence, reversing Burger I.

The MSPB, relying on a case known as "Harants," found that it had no jurisdiction because the employees "d[id] not allege that the agency expressly informed them that they would not be placed in positions at the PS-6 level. Moreover, the record does not indicate that any such information was provided to them. Instead, it shows that the agency informed at least four of the appellants that they would be 'reassigned ... as ... unassigned full-time regular clerk[s], PS-06,' which were assignments at the grade level of their former positions." (Emphasis added.)

The issue NOW before the Court of Appeals is whether the MSPB erred in Burger II by concluding it lacked jurisdiction over the employees' appeals because the Postal Service did not expressly inform them that they would not be placed in positions at their former grade level.

The employees are arguing that the Postal Service has implemented an automation program which has eliminated obsolete machinery and along with that has eliminated a large number of higher-level duty assignments throughout the agency, including those of FSM Operators.

The MSPB ruling in Burger II elevates form over substance. If allowed to stand, it would utterly defeat the rights of employees under the Veterans Preference Act. Indeed, the Postal Service went back and retroactively changed the documentation: It cancelled the job abolishments and the employees' designation as unassigned regulars, although nothing about their lower-level work after the FSM machines were eliminated had changed, as the administrative judge found.

In reversing itself, the MSPB interpreted the Harants decision as one requiring employees to be told in exact words when their duty assignments were abolished and that they would not be placed in assignments at the same level. The APWU believes that no such formality is required by the Harants ruling.

As the MSPB recognized in Burger I, the Postal Service's notices gave the employees information that amounts to the same thing: When automation eliminates duty assignments, and employees cannot be placed in another duty assignment in the same level, they become "unassigned regular" employees, and are entitled to "saved grade." They retain their salaries, although they are assigned to the duties of lower-level positions.

A cursory comparison of the position descriptions describing their former duties as Level 6 FSM Operators to those of the work to which they were later assigned starkly demonstrates that these employees were demoted. The MSPB has already ruled that merely affording employees saved grade does not change the fact that a demotion has occurred. Whether the employees bid on lower-level duty assignments after their former duty assignments were abolished and they were designated unassigned regulars is immaterial...

So, I urge you: If you find yourself in these circumstances, ask whether a duty assignment is available in your former level. If you file an appeal, specifically mention that you were told that there was no duty assignment available in your level. And, if, for example, you were operating a machine which has been eliminated by technology, mention that the machines are gone and will never return.