BE CAREFUL GRIEVING RIF’S

RIFs are popping up all over government and right behind them are union grievances alleging a ULP and/or a violation of the negotiated agreement’s provisions on a RIF. But what about the Trump order obliterating unions’ right to represent?  If unions cannot overturn it, a contract grievance might be ruled void and never get to an arbitrator. So, unions need to do something now to protect against losing any opportunity to challenge a RIF. And that something is to…

First, amend the grievance alleging contract violations and ULPs to also allege a violation of the RIF regs of your agency, the department to which it belongs, and  OPM’s.  Those regs could provide rights that are not contained in your negotiated RIF articles. For example, 5 CFR 351.801 requires with very little exception that an agency provide employees and their union with 60 days advance notice of a RIF.

Second, file an appeal with MSPB challenging the RIF, but only after you file the grievance.  The Board normally would dismiss that appeal arguing that labor law limits the union to filing a grievance if its collective bargaining contract permits it to grieve RIF disputes, But, if Trump’s destruction of those contracts holds up then MSPB will be obligated to hear the union’s appeal.  It may not be the best place to litigate a ULP and violation of a contract provision, but the Board will be obligated to issue a decision. Ideally, unions will figure out a way to get that decision to a court if the Board finds against the union. Check with your union’s staff advisors as to when an appeal to MSPB would be timely, e.g., can it be filed when the RIF is announced or when it is executed.