April 1997

RIF Protection for Union Representatives

We were very pleased to get a decision from Arbitrator Donald Wollett on March 27, 1997, in a grievance involving the RIF separation of Scott Blanch, formerly president of AFGE Local 1592 at Hill Air Force Base. Scott was and is a full-time Union representative and the labor contract provides for a number of full-time representatives. The Arbitrator agreed with us that fulltime Union representatives belong in a different competitive level for RIF purposes. Hill Air Force Base, Utah, FMCS 96-12035-7.

Presidents' Conference

Get your registrations in for the Presidents' Conference here in Lakewood on June 27, and 28, 1997. Anyone who did not receive a flyer already should give us a call. It looks like we'll get a good turn out from our clients and that this will be a thoroughly enjoyable summer weekend here in the Rockies.

Right to Counsel

One of our Union friends at SSA brought to our attention a little-known provision of the Administrative Procedure Act: 5 USC 555(b). This section begins by stating "A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the Agency, by other qualified representative." Could this be an even broader right than the Weingarten right? This section probably just applies to rulemaking and adjudicatory proceedings governed by the Administrative Procedure Act, but it is certainly written broader than that. Clients may wish to test the applicability of this provision through the grievance process.

Form for Mediation

We would like to thank AFGE Local 2270 at the VA Hospital in Omaha for bringing to our attention a new form for requesting mediation in the federal sector. A copy of the form is attached to this newsletter. It should make it easier for clients facing bargaining impasses to request FMCS mediation and to keep a record of their requests.

Effect of Retirement on MSPB Appeal

One of the more confusing issues at MSPB is the effect of an employee's retirement on a pending MSPB appeal. When the retirement is prompted by an involuntary separation, such as a removal for cause or due to RIF, it will not prevent the MSPB appeal from going forward. However, in the recent decision of Cooper v. Dept. of the Navy, 35 GERR 336 (Fed. Cir. 1997), the court found that OPM's retroactive approval of a disability retirement application mooted the employee's MSPB appeal. Once the retirement was approved, the Navy rescinded the prior removal action and removed all references to it. The court said this combination of factors was enough to leave nothing to be determined by MSPB.