RIF game coercive, not voluntary

A federal employee who was set to lose his job because of a reduction in force decided to take a new job at a lower grade to stay employed. However, when he decided to appeal the original RIF notice, he realized that he had few rights.

The case involved Army employee Steven Johnson who, on July 22, 1997, received a RIF notice that he would lose his GS-13 congressional liaison position with the Army Research Laboratory effective Sept. 27, 1997.

Before the RIF took effect, Johnson participated in the Army's priority placement program and accepted a position at the Army Operational Test and Evaluation Command at a lower grade with no loss in pay for two years. The government documented Johnson's move as a "transfer" effective Sept. 28, 1997.

On further reflection, Johnson decided to file an appeal with the Merit Systems Protection Board (Steven L. Johnson v. Department of the Army, July 28, 1999, Docket DC-0351-98-004) challenging how the Army established his "competitive level" during the RIF and requesting a hearing. A competitive level is used to determine who is fired first, based on such factors as seniority, performance and veteran status.

The MSPB administrative judge presiding over the appeal told Johnson that because he had not been separated or demoted, he could not appeal. Because Johnson was transferred from one Army unit to another and not assigned or separated by a RIF, the judge said that the MSPB lacked jurisdiction and dismissed the appeal.

Johnson asked the full MSPB to consider his appeal. But the MSPB concluded that no new evidence had been presented and that the administrative judge had ruled correctly.

In the meantime, the full MSPB reopened the appeal on its own motion to address some issues raised in the case. First, although Johnson's personnel form indicates that he was transferred on Sept. 28, 1997, the MSPB said Johnson was not transferred. Under the applicable section of the Code of Federal Regulations, "transfer" means a change, without break in service of one full work day from a position in one agency to a position in another agency. There was no indication that Johnson left the employ of the Army at any time relevant to this appeal. Therefore, he was not transferred. But this finding had no impact on this case, aside from enabling the MSPB to display its knowledge of the law.

The MSPB's second concern was that the initial decision did not address the effect of a precedent in Harants v. U.S. Postal Service. The court in Harants held that if an employee gets a RIF notice and has not been selected for another position at the same grade, the employee can appeal even if he voluntarily accepts another position before the effective date of the RIF.

The MSPB said that it could not figure out why the court ruled as it did in Harants, and it disagreed with that decision. It said any related MSPB precedent was never intended to give appeal rights to employees who receive RIF notices and who voluntarily accept another position before RIF placements are carried out.

When an employee is issued a RIF notice, the employee can wait to see if the agency is bluffing or voluntarily take another position or leave the agency. If the employee waits for the effective date and the second shoe does drop, then that employee can appeal to the MSPB. But if the employee leaves voluntarily or takes another position within the agency, the MSPB says it is unreasonable to give appeal rights because that employee has "voluntarily left his position prior to the effective date of the tentative action."

The MSPB is saying that an agency can play a cat-and-mouse game with employees. The worker is being told that he may be fired but that it is not certain. Because it is not certain, the worker cannot appeal. In effect, this gives an agency the license to coerce certain employees without fear of retribution. The agency can wait until the last minute to rescind its RIF notice.

I certainly hope Johnson appeals this decision to the court. Take it from someone who's been there: The action is not voluntary. It is coercion of the first order, and the MSPB should be ashamed of itself for misusing the word "voluntary."

Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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