V-day + 3; THE BEACHHEAD IS ESTABLISHED.

GROUNDS FOR COMMENTS:    If one reads through the articles on the Web site posted above by attorney Gary Gwilliam concerning the ongoing suit against LLNL, you will find the eleven causes of action in that case.  Since LLNS and LANS can be considered the same “actors” it is apparent that LANS has attempted to learn a lesson from the 2008 LLNL layoffs.

It would appear obvious that the VSP is structured to avoid the issues raised in the LLNL suit.  (Although the same ones may be faced in the event of an involuntary layoff at LANL).  As has been stated here before, the LANS attorneys appear to have done their homework, and that They feel VSP will avoid most of the issues raised in the LLNL suit. 

In discussing the legal issues of the LANL layoffs, most of us would agree that LANS can make an “offer” of severance pay to anyone they choose in the normal course of business.  Since there is no Laboratory Policy to cover a voluntary layoff or separation, LANS is apparently free to structure the program however they choose.  

However, in reviewing the eleven causes of action in the LLNL case, there would appear to be two causes of action that may remain.  That of Breach of Express or Implied Contract  and Breach of covenant of good faith and fair dealing.  Additionally, it is a well established matter of law that a public entity making an offer may not exclude consideration or acceptance of that offer by unfair discrimination or exclusion of any class of potential participants.  (e.g. housing law)  

Most of the affected employees posting to this blog feel that exclusion of certain job classifications is arbitrary and unfair, in that LANS had not made any case what-so-ever to justify the exclusions.  Additionally, many of these individuals feel the exclusion is unfair since they were transferred into their current “excluded” positions from similar positions in groups or divisions where their contemporaries, with similar training, education, and experience, are free to take the VSP.  

On the theory of  “if it looks like a duck and quacks like a duck, it is probably a duck,” we maintain that if something looks unfair, and feels unfair, than in most case a legal basis for that unfairness can be established.   We would therefore like to start off the listing of why exclusion of certain job categories without consideration of the impacts and disparities such exclusion may create on individual employees is a breach of the covenant of fair dealing. E.G.

1. The laboratory has made no case for why any of the excluded job categories should or need to be so excluded.  If They had made a case for exclusion of say Weapons Engineers due to national security issues, one might have granted Them the benefit of the doubt.  However, the Laboratory has stated in several places that it is at Their sole discretion to decide to whom to offer the VSP and to decide whom they wish to exclude.
2. However, in some cases, particularly that of system engineers, the Laboratory has made no great effort over the last several years to “staff up” in that area.  To the contrary, Their recent policies have contributed to a rapidly aging population in that classification.  Therefore, can they really show that excluding this classification, for example, is justified?
3. The laboratory has consistently favored recruitment of post docs and scientists in their recruiting efforts over other fields.   There has been an apparent lack of emphasis in recruiting engineering and other skilled technical support.  Again, can They justify exclusion of the system engineering career field, or any other field, based upon Their lack of due diligence to replace the existing members.
4. The laboratory has maintained a nearly complete hiring freeze over the last two years that has, in at least one documented case, prevented the hiring of replacement engineers to replace individuals planning on retiring.  Therefore their alleged “shortage” in this area is due to Their own actions, not those of the employees.
5. In the case of several system engineers, personnel were transferred into their current (excluded) positions by the Laboratory, ostensibly to “help the lab out” with their difficulties in filling the SE positions.  Now, due to actions by the Laboratory, and no fault or decision of their own, the same group of personnel is excluded from taking advantage of a significant inducement to retire.  Where is the fairness in that?
6. Again in the case of system engineers, there are many project engineers and design engineers (who are not excluded) who have been transferred into and out of system engineering positions.  This would tend to indicate that the skill set of system engineers is not all that special and that any experienced engineer could perform well in the position.  Again, where is the justification for excluding one Group of engineers by job description and not excluding engineers with similar degrees and training in other Groups when the skills are virtually interchangeable?
7. In most cases, managers from the affected job classifications were not excluded.  If the career field and the function are so important to the Laboratory, why is it willing to allow the managers in each field to retire?   This of course could present the Lab with the case of having to promote an excluded engineer or scientist into a position vacated by a retiring manager—that engineer would then be a manager who would have been allowed to take the VSP had he/she currently been a manager.   How does that make any sense?
8. If the Laboratory does have to move to involuntary layoffs, how will They justify to those who face the involuntary layoff that a significant number of employees who wished to take the VSP were excluded from accepting the offer? 

Additional comments and examples, particularly parallel examples from other job classifications would be greatly appreciated.

Guy