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On October 15th, a judge in the US District Court ruled in a lawsuit brought by federal labor unions, that recent layoffs by the Trump administration during the shutdown were illegal, and placed at least a temporary halt on those actions and any future Reduction and Force (RIF) actions across the federal government impacting employees under those unions during a shutdown. In response to this ruling, NASA Chief Human Capital Officer, Kelly Elliot made a declaration in court on October 17th that NASA would abide by this ruling. On October 21st the lawsuit was amended to add additional unions and plaintiffs, including IFPTE, the international union under which GESTA is a local. And on October 22nd, the judge in the case ordered that the temporary restraining order be expanded to include those additional agencies and unions. The restraining order was extended by the judge “indefinitely” on October 28th. The bottom line is that under this amended lawsuit and restraining order, NASA is now prevented from carrying out RIF actions impacting GESTA or other NASA IFPTE employees during this shutdown. Note the direction by the judge in this case is that this ruling applies even though NASA and other agencies may no longer be recognizing union bargaining rights. If interested, you can follow this case on Court Listener.
We have not received any indication of an imminent Reduction in Force (RIF) including involuntary separations by the NASA agency and as noted above any potential RIFs during a shutdown are paused by court. However, we want to provide updated guidance on your rights during a RIF, specifically regarding your appeal options for any RIF actions (see our prior blog post). Prior to the August executive order abrogating NASA’s unions rights, the only option for appealing an improper RIF notice (unless discrimination is involved) was to file a negotiated grievance through our bargaining agreement grievance procedure. Now that the agency is no longer recognizing our Collective Bargaining Agreement (CBA), the primary channel instead is to file an appeal through the Merit System Protection Board. Keep in mind that Merit System Protection board appeals must be filed 30 calendar days from the date of the effective action or termination date. Representation during the appeal process is also allowed (and encouraged by GESTA). Note free and reduced cost legal advice for federal employees is available through the Rise Network. GESTA is also available to help connect you with a lawyer if you need help. Note if there is any injunction or ruling in IFPTE's pending lawsuit and the agency recognizes our bargaining rights once again, the proper appeal method would switch back to negotiated grievance procedures, which have a deadline of 15 work days from the date of the effective action. Although we hope they will not occur, in the event RIFs do occur at NASA Goddard, GESTA will be in touch to provide more guidance and host training opportunities for our members on the details of RIF appeals.
We have heard a lot of misinformation circulating about how a government shutdown might affect the possibility of a Reduction and Force (RIF). The bottom line is: a government shutdown does not result in automatic RIFs, nor does it give agencies any new authority or obligation to conduct RIFs.
This post is an addendum to our prior post on your rights during a Reduction in Force (RIF) and focuses on your retirement options and rights. Please see the OPM RIF webpage and the other links in this article for additional information.
GESTA received a response on August 11th to a request for information (RFI) we submitted on July 30th about the nature and details of any ongoing insourcing activities at NASA Goddard in which civil servant’s job duties are being reassigned to replace those of contractors being let go. Center HR responded to us that “The RFI was submitted to ETD [Engineering and Technology Directorate], and subsequently that organization notified us that they are no longer pursuing the insourcing activities referenced in the RFI…“. This response and status is contradicted by information GESTA has continued to receive from its members via branch level management about ongoing insourcing actions or plans. Please let us know if your branch is continuing to plan or has already implemented any insourcing actions. If you have received any documentation or have written notes from your branch meetings those are also helpful.
GESTA recently received notification of Agency Management’s intent to modify NASA’s policies and procedures governing Reductions in Force (RIFs), or layoffs in the Federal Government, with its release of a revised RIF NASA Interim Directive (NID). To be clear, this is not yet notification that a RIF is underway. IFPTE has National Consultation Rights (NCR) with NASA which requires GESTA/IFPTE Local 29 to be informed of any substantive change in conditions of employment proposed by the Agency and be permitted time to present input, views, and recommendations regarding those changes, prior to policy updates being adopted by the Agency. Before a RIF may be implemented, the Agency should have a RIF policy in place that aligns to the federal regulations for RIFs, specifically 5 CFR Part 351. It is important for GESTA to review the revisions to the NID to ensure the rights of employees are still protected accordingly, should a RIF be implemented.
Although we sincerely hope a Reduction in Force (RIF) does not occur at Goddard, we want to share some information on your rights and what you should do if a RIF does occur and you receive a RIF notice. The information below is taken in part from “A Civil Servant's Guide To Reductions In Force” by the Civil Service Strong organization, GESTA’s Collective Bargaining Agreement, Sect 18., information from the Office of Personnel Management's (OPM) RIF Website and OPM’s Employee Guide to Career Transition. We encourage you to read the information at those links as well.
Recently, we have heard of some confusion about whether term employees (i.e. temporary employees with terms greater than 1 year) could possibly be terminated before their term end dates without a formal Reduction in Force (RIF) process. Below is a summary of GESTA's current understanding of the law surrounding term employees. However we encourage individuals to consult a federal labor lawyer for any legal advice.
Term employees who are past their probationary/trial periods cannot be terminated for reasons unrelated to their job performance or conduct before their term end date without the agency performing a formal RIF process. However, terms still in their probationary period (within 1 year of hiring for those in the competitive service and within 2 years of hiring for those who are in the excepted service and without veteran’s preference) can be terminated prior to their term end date for performance/conduct but also suitability reasons without a formal RIF process – see our prior post on the new regulations for Probationary Employees. Employees can check in Box 34 of their SF-50 to locate their status as either a competitive or an excepted service employee. In addition, in the case of their termination, both non-probationary and probationary term employees must be given sufficient notice, and the terminations must not violate any civil rights or whistleblower protections. In the case of their termination, both non-probationary and probationary term employees also have appeal rights, though probationary employee’s appeal rights are more limited. If any term employees do find themselves facing termination prior to their term end date and prior to formal RIF procedures being implemented by NASA, we encourage you to reach out right away to GESTA to understand your options. For more details you can also see section 5 of NSREF-3000-0972_NASA Time-Limited Employment Desk Guide (internal) |
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