Foreign Service Labor Relations Board Rules For @StateDept in 2014 MSI Case

AFSA has recently informed its members that the Foreign Service Labor Relations Board (FSLRB) has ruled for the State Department in the 2014 Meritorious Service Increase (MSI) dispute. The ruling affects approximately 270 Foreign Service employees: 

AFSA regrets to inform our members that on September 21, 2018, the Foreign Service Labor Relations Board (FSLRB) granted the Department of State’s exceptions (i.e., appeal) and set aside the Foreign Service Grievance Board’s (FSGB) December 8, 2017 Decision, which had found that the Department violated the procedural precepts by not paying Meritorious Service Increases (MSI) to approximately 277 Foreign Service employees who were recommended but not reached for promotion by the 2014 Selection Boards.  AFSA argued that the Department was required to confer MSIs on all eligible employees (up to the 10% limit set forth in the precepts) who were recommended but not reached for promotion.  The Department argued that it had the unilateral discretion to give MSIs to only 5% of employees ranked but not reached for promotion, since 5% was below the 10% limit.

Rather than give substantial deference, as is normally the case, to the FSGB’s interpretation of the parties’ agreement (i.e., the promotion precepts), two of the three FSLRB members (including the Administration’s appointee to the FSLRB) agreed with the Department’s arguments and found that the FSGB had misinterpreted the precepts.  The third member, Retired Ambassador Herman Cohen, dissented from the majority decision.  When a party seeks to establish that an arbitrator (in this case, the Grievance Board) misinterpreted an agreement, the party must provide that the decision “fails to draw its essence from the agreement.”  This is an extremely high burden to meet.  According to the case law, “great deference” is given to the arbitrator’s interpretation of the agreement “because it is the arbitrator’s construction of the agreement for which the parties have bargained.”   In this case, however, the FSLRB chose not to defer to the Grievance Board, ignoring the “great deference” practice.  Unfortunately, the FSLRB’s decision is not subject to judicial review.

AFSA says that it is “extremely disappointed by this decision.” Its notice to members notes that it prevailed in two earlier cases, the 2013 and 2014 MSI disputes. It also informed members that despite this ruling, it plans to proceed with the 2015 and 2016 MSI cases before the Grievance Board.

Excerpt from FSLRB ruling says:

The Grievance Board stated that it was “indisputably true” that, by its plain terms, the phrase “no more than [10%]” in the agreement means that the Agency may award MSIs to “10% or less” of eligible employees.29 As discussed above, the Grievance Board should have ended its analysis there, with the agreement’s plain wording. Instead, the Grievance Board found that, because the parties had different interpretations, the wording was ambiguous.30 But wording that is clear on its face does not become ambiguous simply because the parties disagree as to its meaning.31 Rather, a contract is ambiguous if it is susceptible to two different and plausible interpretations, each of which is consistent with the contract wording. 32 The interpretation adopted by the Grievance Board – that “no more than [10%]” means the Agency must award MSIs to no less than 10% of eligible employees33 – is not consistent with the plain meaning of the agreement’s wording. Consequently, it is not a plausible interpretation of the agreement.

FLRA Chairman Colleen Duffy Kiko who was confirmed by the Senate in November 2017 serves as the Chairperson of the FSLRB. The two other members of the FSLRB are Stephen Ledford, who previously served as the Director of Labor and Employee Relations at the U.S. Information Agency (USIA) and was sworn on his third term with FSLRB in 2015, and Ambassador (ret.) Herman J. Cohen, a career diplomat and specialist in African and European affairs who was appointed to his first term with the FSLRB in October 2015.

In his dissent, Ambassador Cohen writes:

For five years prior to 2014, the year covered by this case, the promotion precepts, negotiated between management and the union, were always the same: MSIs will be awarded to those recommended for promotion at a maximum of ten percent of those on the list, in rank order. With this practice having been followed year after year, it is quite normal that the union had the right to believe that the number would never be less than ten percent pursuant to the negotiated precepts. Ten percent was not part of a sliding scale. It was an agreed amount.

If management had changed that number from year to year, the situation for 2014 would have been totally different. The union would have demanded the right to negotiate that number.

For this reason, management’s decision to unilaterally change the number of MSIs was contrary to the precepts, despite the ambiguous language. Historical practice said that ten percent of those recommended, but not promoted, would receive MSIs. Secondly, management gave a reason for awarding only five percent MSIs in 2014. Management said it was “exercising its budgetary authority” to make the reduction. In other words, the funds were needed elsewhere.
[…]
In the specific year 2014, it appears that the need to save money by reducing MSIs had no relationship to overall budgetary needs. In short, management was saving money on MSIs, and using that “salary money” to pay for 35 sets of ambassadorial furniture, as one possible example. In 2014, management provided no reason to justify this reduction in this highest priority “salary” by higher priority needs elsewhere. Neither, to my knowledge, was there an overall government-wide freeze in MSIs that year.

The case is U.S. State Department v. AFSA. The FSLRB decision is available to read here or see this link: FS-AR-0007Dec 9-21-18

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2018 Lifetime Contributions to American Diplomacy Award For Amb. Ronald E. Neumann

On October 10, at 4pm, the American Foreign Service Association will honor Ambassador Ronald E. Neumann with its Lifetime Contributions to American Diplomacy Award for 2018. Congratulations to Ambassador Neumann!

Ambassador Ronald Neumann delivers remarks at the Economic Leadership Day Ceremony, at the U.S. Department of State in Washington, D.C., on March 29, 2011. [State Department photo/ Public Domain]

Via afsa.org:

AFSA proudly announces that Ambassador Ronald E. Neumann will receive the association’s 2018 award for Lifetime Contributions to American Diplomacy in honor of his distinguished career and lifelong devotion to the long-term well-being of a career professional Foreign Service. Past recipients of this award include George H.W. Bush, Thomas Pickering, Ruth Davis, George Shultz, Richard Lugar, Joan Clark, Tom Boyatt, Sam Nunn, Rozanne Ridgway, Nancy Powell and William Harrop. The award will be presented on October 10 at 4:00 p.m. during a ceremony in the Benjamin Franklin Diplomatic Reception Room at the Department of State.

Ambassador Neumann was born in Washington, D.C. but grew up in California. He earned a B.A. in history and an M.A. in political science from the University of California at Riverside and is a graduate of the National War College. He is married to the former M. Elaine Grimm. They have two children.

Neumann served three times as Ambassador: to Algeria, Bahrain and finally to Afghanistan from July 2005 to April 2007. Before Afghanistan, Ambassador Neumann, a career member of the Senior Foreign Service, served in Baghdad from February 2004 with the Coalition Provisional Authority and then as Embassy Baghdad’s liaison with the Multinational Command, where he was deeply involved in coordinating the political part of military actions.

Prior to working in Iraq, he was Ambassador in Manama, Bahrain (2001-2004), Deputy Assistant Secretary in the Bureau of Near East Affairs (1997-2000) with responsibility for North Africa and the Arabian Peninsula, and Ambassador to Algeria (1994 to 1997). He was Director of the Office of Northern Gulf Affairs (Iran and Iraq; 1991 to 1994). Earlier in his career, he was Deputy Chief of Mission in Abu Dhabi, United Arab Emirates, and in Sana’a in Yemen, Principal Officer in Tabriz, Iran and Economic/Commercial Officer in Dakar, Senegal. His previous Washington assignments included service as Jordan Desk officer, Staff Assistant in the Middle East (NEA) Bureau, and Political Officer in the Office of Southern European Affairs.

Neumann speaks some Arabic and Dari as well as French. He has received State Department Superior Honor Awards in 1993 and 1990. He was an Army infantry officer in Vietnam and holds a Bronze Star, Army Commendation Medal and Combat Infantry Badge. In Baghdad, he was awarded the Army Outstanding Civilian Service Medal. Neumann retired in 2007 and serves as the President of the American Academy of Diplomacy, an organization of former senior U.S. diplomats dedicated to improving American diplomacy. At the Academy he has focused particularly on efforts to maintain adequate State and USAID budgets and staffing to enable these institutions to carry out their responsibilities. Ambassador Neumann is on the Advisory Board of a non-profit girls’ school in Afghanistan, the School of Leadership, Afghanistan (SOLA) and the Advisory Board of Spirit of America. He is on the board of the Middle East Policy Council and the Advisory Council of the World Affairs Councils of America.

 

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