FS Labor Relations Board on AFSA Dues, Foreign Service Retirees, and Annuities ≠ Salaries

Posted: 4:22 am ET
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Last month, the Foreign Service Labor Relations Board (FSLRB) rendered a decision about AFSA dues and Foreign Service retirees.  AFSA filed with the Foreign Service Labor Relations Board (the Board) a “request[ for] . . . interpretation and guidance of § 1018(b)(2) of the Foreign Service Act of 1980. This provision concerns the termination of payroll deductions for union dues when “the individual ceases to receive a salary from the [Agency] as a member of the Service.”

When Agency employees wish to have their Union dues automatically withheld from their paychecks, the employees complete a form that authorizes the Agency to withhold those funds and remit them to the Union.6 According to the Union, the Agency automatically terminates dues withholding when a foreign-service employee retires. The Union asserts that this practice is based on an erroneous understanding of § 1018(b)(2) of the Foreign Service Act …
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[T]he Union argues that the automatic termination of dues withholding causes it to lose dues and, therefore, asks the Board to find that § 1018(b)(2) does not require automatic termination of dues withholding upon retirement.
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The Union contends that the Agency should continue withholding dues from an individual’s retirement benefits based on the same dues-withholding-authorization form that applied to the individual’s salary while in active service.17 We disagree.

Section 1018(b)(2) of the Foreign Service Act requires the Agency to terminate an existing dues-withholding assignment when an “individual ceases to receive a salary from the [Agency].”18 As explained below, retirees generally receive “annuities,” not salaries, upon retirement.19

The FSLRB says it find that § 1018(b)(2) requires the State Department to terminate an existing dues-withholding assignment when a retiring employee stops receiving a salary.

The Department deducts union dues from salaries on the basis of a voluntary act by the Foreign Service employee. The employee has the right to revoke his/her decision at any time. Whenever an employee who has had his/her union dues deducted from salary arrives at the moment of retirement, it must be assumed that he/she continues to believe it had been in his/her interest to maintain both their membership in the union, and the automatic deduction of union dues.

The Board notes that “when a foreign-service employee retires, that “individual ceases to receive a salary from the [Agency].”30 Consequently, under § 1018(b)(2), the Agency must terminate the individual’s previous dues-withholding assignment.”
AFSA has over 10,000 active paying FS members. Its dues range from $95.00 to $400.00 annually based on four employee brackets.  Read the full decision below:

 

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Open Forum Furor: An Attempt to Neuter Retiree Complaints About AFSA?

Posted: 1:44 am ET
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AFSA’s Open Forum enables Foreign Service retirees to stay in touch with their Foreign Service colleagues on FS issues and maintain their FS legacy. Out of some 16,000 paying members, a sub-group of retiree-members use the online forum, and they are pretty vocal and not always complimentary to AFSA or its leadership. AFSA previously opted-in all members to the forum in 2014 so everyone gets to read the online conversation.

An Open Forum user said that all those who get the Open Forum digest daily benefits from being part of a dynamic discussion/debate of Foreign Service topics of interest, whether or not they chose to post in the forum themselves.

AFSA Director of Communications Asgeir Sigfusson recently told members that “We have heard from members asking us to do our best to stem the flow of emails and help with inbox clutter. In response, we are now opting everyone out of that daily email, which will reduce the number of weekly AFSA emails by up to seven.”

We were informed by our sources that “When asked, AFSA staff indicated they have no knowledge of any complaints about the Forum.”

AFSA’s President and State VP, and their communication shop are notoriously unresponsive to our inquiries, so um … pardon us if we no longer waste our time over there.  

The Open Forum mechanism to opt-in is reportedly not onerous, and we can certainly understand decluttering the inbox but some AFSA members are outrage, especially as the change was announced just a few days before it took effect.  More importantly, there is a strong suspicion that trimming access to the forum (or what members read even passively from the forum) and the requirement to opt-in are just ways to trim the unfavorable views expressed by the retired members.

Former AFSA Vice President for Retirees Larry Cohen who oversaw the creation of the forum did not minced words and said, “This as an attempt of AFSA leadership to neuter retiree complaints about AFSA.”

Ouch! What are they talking about in there, do tell!

A close AFSA observer notes that changes at AFSA that could have lead to this kerfuffle includes communication issues like Governing Board meeting agendas and approved minutes that should be available on the AFSA website for any interested member but are not.

“Overall AFSA leadership seems to want a tight control on information.  They do not share enough or ask enough.  The current communications policy divides up the Service by not sharing communications across all constituencies so that  all interested, whether active or retired, can be better informed.  Boards and staff continue to ignore the bylaw provision for constituency Standing Committees.  Now is a time to enlarge the tent, not restrict it.  Standing committees have an advisory function and allow for a broader range of perspectives.  The results or main themes or take-always from the  “focused conversations” organized by rank cohort are not shared with the membership with the degree of specificity needed to be useful.  It is not clear how focus group conversations are announced or participants selected.  What about retirees – are they included?”

That sounds almost as bad as the information control generated by the 7th Floor.

The AFSA observer also notes that elected representatives are accountable to members and every member deserves a respectful and timely response to any request for information.

Just yesterday, an Open Forum user complained that the three items he/she submitted have not been published nor acknowledged and asked, “What in the name of AFSA openness is going on?”

The AFSA election results for the 2017-2019 AFSA Governing Board had a total of 4,130 valid ballots cast or 25% of the eligible voting membership (note that the new Governing Board was seated last week, so old Prez but new State VP). That’s the same percentage of voters who participated in the 2015-2017 elections. A few years back, we sliced and diced the AFSA voting numbers and at that time, we noted that active-duty employees were the largest voting bloc in AFSA at over 60% of the total membership, but only about 16% of this constituency vote. Foreign Service retirees on the other hand, the second largest constituents of AFSA make up something like 26% of the total membership but almost half the total AFSA retiree members cast their votes (2016 membership is currently 10,792 active employees and 3,710 retired employees). The retirees also bring in about $260K in AFSA dues annually.

As a side note, did you hear about the ruling from the Foreign Service Labor Relations Board (FSLRB) about Foreign Service retirement and witholding of union dues? (Separate post to follow).

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Judicial Actions Involving Foreign Service Grievance Board (FSGB) Rulings in 2015

Posted: 12:15 am ET
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Below are three appeals of FSGB decisions that were filed in the District Court for the District of Columbia in 2015 and a few other cases currently pending in court. All extracted from the 2015 FSGB Annual Report:

  • In May, Paul Fritch appealed the Board’s decision in FSGB Case No. 2013-005. The circumstances of that case, as with two other appeals filed by Mr. Fritch with the Board, revolved around his transfer to the Organization for Security and Cooperation in Europe (OSCE) for seven years, and reemployment by the Department of State. Mr. Fritch’s district court appeal claims that the Department, affirmed by the Board decision, denied him benefits upon his return to which he was entitled by law, including promotion opportunities, housing expenses, lost contributions to his Thrift Savings Plan account, and position seniority. A decision is pending. (Also see  How many people should be put through a wringer before, oh you know …. and  Secondments to international organizations and promotions? Here comes the boo!).
  • In November, SharLyn Foo appealed the Board’s decision in FSGB Case No.2014-018, described above under financial cases resolved last year. The Board affirmed the Department’s denial of a waiver of repayment of annuity payments in excess of $300,000 deposited into Foo’s deceased mother’s account over more than a decade. A decision is pending.
  • Also in November, La Rufus Mitchell filed an appeal of the Board’s decision in FSGB Case No. 2014-003. Ms. Mitchell claims that the Department violated the Americans with Disabilities Act and the Rehabilitation Act when it separated her for not having passed the timed running test required for Diplomatic Security Agents. The Board had upheld the Department’s decision. (See the case description under Separation cases, above, for greater detail.) A decision is pending.
  • Appeal to the Foreign Service Labor Relations Board (FSRLB) | In October, the Department of State filed an appeal to the FSRLB of the Board’s decision in the implementation dispute filed by AFSA in FSGB Case No. 2014-028. The FSGB found that the Department had violated negotiated Procedural Precepts when it failed to pay Meritorious Service Increases (MSIs) to members of the Foreign Service in 2013. The Department has alleged that the Board relied on erroneous facts and factual premises not in evidence, and disregarded the express terms of the collective bargaining agreement when it based its decision on past practice. (See Implementation Disputes, above, for greater detail.) Also see Burn Bag: @StateDept announces its disappointment … 👀 OMG! It’s nice to feel valued!

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FSGB 2015 Annual Report: Grievance Processing Reduction — From 41 Weeks to 34 Weeks

Posted: 12:08 am ET
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The Foreign Service Grievance Board has released its 2015 annual report. Excerpts below:

The FSGB, as the primary appeals tribunal for Foreign Service Officers, is in many cases the tribunal of last resort for a wide variety of disputes that arise in the context of employment in the Foreign Service. Although the Board’s decisions may be appealed to the Federal District Courts, such appeals are rare. Therefore, the Board holds sway over decisions that may not only adversely affect Foreign Service careers but that may be fatal to such careers.In its 2015 report, the FSGB says that it has “achieved significant progress in reducing the timelines from the inception of the appeal (or the filing of the grievance with the Board) to the issuance of the final decision. Taking into consideration certain anomalies (cases settled, withdrawn, etc.), the grievance processing time was reduced from an average of 41 weeks in 2014 to 34 weeks in 2015.”
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The Board is constantly mindful that external trends and societal changes that affect the Foreign Service have a bearing on dispute resolution. In that regard, we have encouraged internal discussion and on occasion invited outside experts to make presentations on topics that we consider relevant to the Board’s core functions. For example, this past year the Board held a panel discussion on the impact of social media on diplomacy, including such issues as expectations of privacy and security of communications in a much more active cyber environment. We also invited four distinguished individuals to engage the Board in a wide-ranging discussion on disability and its impact on the Foreign Service. The discussion ranged from a report on what the Department of State is doing to provide accommodations for various employees who are disabled to the diagnosis and treatment of PTSD. These issues, along with a myriad of other conditions caused by service in stressful, dangerous and unhealthy posts abroad, have significant impact on behavior and performance and are often addressed by evolving laws and regulations; they are therefore relevant to the overall mission of the Board. My expectation is that the Board will continue to encourage discussion of issues that influence Foreign Service careers, and that will enlarge the Board’s understanding of the growing complexities in the practice of diplomacy and the legal framework that surrounds it.

Some of the notable 2015 FSGB cases:

  • One complex case arose from the circumstances following the September 11, 2012, attack on an American diplomatic post in Benghazi. The reviewing officer of a senior DS Agent was placed on administrative leave during the last four months of the rating period. No communication was allowed between the rated employee and reviewer during that time. Additionally, the rated employee was subsequently responsible for implementing many changes in procedures that had been in place under the reviewer who was placed on leave. The employee assumed that the person acting in the original reviewer’s stead would provide the reviewing statement for his EER. However, the Department determined that his former reviewer would write the reviewing statement, since that officer had not been formally reassigned and was familiar with grievant’s performance during most of the rating period. Grievant claimed that this decision, along with the Department’s decision to assign no reviewer for his subsequent Interim EER, contrary to grievant’s expectations, disadvantaged him in the highly competitive promotion process at the senior levels. The Board found that although the Department had contravened the regulations regarding reviewing officers, grievant, who had been recommended for performance pay, had not demonstrated actionable harm, and the grievance was denied. FSGB Case No. 2015-022. (This case does not appear to be available at fsgb.gov).
  • A second grievance illustrated an issue involving informal counseling that occurs with some frequency in cases that end up at the Board. Grievant, an untenured officer, challenged several EERs and a low ranking on a number of grounds, among them that he had not previously been counseled on deficiencies identified in his EERs. After a thorough review of the record, including contradictory statements by the employee and raters, the Board found that, with one exception, grievant had been counseled, albeit informally, but not in writing on the official counseling form as provided by Department regulations. In accordance with Board precedent, the Board found that such informal counseling was acceptable, although not the best practice. FSGB Case No. 2013-046. (PDF)
  • The appeal with the largest sum at stake was filed by the daughter of a deceased Foreign Service Officer. The Department sought to collect over $300,000 in annuity payments that it had continued to deposit to the account of the deceased’s wife (the grievant’s mother) for over a decade after the mother’s death. The grievant alleged that her mother had told her that the payments would be continued, and that she should use them for the benefit of her minor nephew, whose father had also died. When the Department requested repayment, grievant asked for a waiver. The Department denied the application for waiver on the basis that it (the agency) was prohibited by regulation from waiving repayment of overpayments made to an estate. The Board affirmed the Department’s findings. The grievant has appealed the decision to district court. (See Judicial Actions Involving Board Rulings, below.) FSGB Case No. 2014-018. (PDF)
  • In a second, unusual, case, the grievant was a Department employee who had filed the first Foreign Service grievance in 1972. At that time, he was due to be separated as a result of expiration of time in class, and would have received no retirement benefits. The grievant protested that the separation was really due to policy differences with his superiors. During the proceedings, grievant was separated and hired into a Civil Service position. He ultimately won the grievance, but was never reinstated in accordance with the remedies granted. Grievant requested that the Board negotiate a revised annuity based on the original grievance decision. The Board found that the passage of over four decades since the original grievance made the new grievance untimely, and it dismissed the case. FSGB Case No. 2014-042. (Also see FSGB Recognizes Grievant’s “Enduring Dissatisfaction” With @StateDept’s 40 Year Old Grievance Case — Where’s the Medal?)
  • A third case involved both a two-and-a-half-year delay in proposing discipline and post-traumatic stress disorder (PTSD), an issue that has arisen with increasing frequency in grievances. The grievant was a DS Agent who allegedly suffered from PTSD following an earlier military deployment to Iraq. The Department charged that grievant failed to inform it about the PTSD during the hiring process, and that he was taking prescription medication without notifying DS as required by the Foreign Affairs Manual (FAM). The Board sustained both charges but did not sustain two of the specifications under one of the charges, and remanded to the Department to reconsider the penalty. The delay was not found to have harmed or prejudiced the grievant in this case. FSGB Case No. 2014-020 (PDF).
  • One case involving the appeal of an assignment was closed this year. Grievant had been an FS-02 officer for several years when he was voluntarily separated and transferred to an international organization. He remained at the international organization for seven years, where he held a senior position in his final years. Grievant contested his assignment to an FS-02 position when he returned to State. However, he had also filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC) involving the same issues. Grievant withdrew his grievance appeal in order to pursue the OSC complaint. FSGB Case No. 2014-025. (Also see  How many people should be put through a wringer before, oh you know …. and  Secondments to international organizations and promotions? Here comes the boo!).

Some unresolved cases at the end of 2015:

  • Grievant, an untenured DS Agent who spoke fluent Chinese, applied for an upgraded security clearance pursuant to a pending assignment to China. In mid-2013 he was informed that his Top Secret clearance was being suspended based on issues surrounding his personal conduct and his foreign preference and influence. The Department also suspended his law enforcement duties and LEAP, assigning the Agent to unclassified duties. Although the Agent was recommended for tenure the same year, tenure was withheld pending resolution of the security issues, and he was low ranked. Grievant challenges these actions on procedural grounds. FSGB Case No. 2015-034.
  • USAID sought to suspend a Management Officer assigned to a conflict zone for negligent contracting actions that it alleged led to the costly collapse of a roof on a new USAID building. The collapse took place in 2009; discipline was proposed in early 2013. As of mid-2015, the agency had not yet issued a final decision on the discipline; however, it was withholding the grievant’s promotion, recommended in 2013, pending that decision. The grievant challenged the agency’s action as untimely and also claimed as a defense that his alleged negligence was due to his PTSD. The case appeared to be near an agreed resolution last year when a second investigation of the grievant halted negotiations between the parties. FSGB Case No. 2015-020.
  • An employee posted to South America with USAID stopped on his way home by a local bar/grocery store, where, he alleges, his drink was drugged by a young woman who joined him. He claims that he awoke the next morning in a strange place, feeling ill and disoriented, and found that $5,000 had been charged to his debit card. The grievant and his wife state that he continued to hallucinate and be paranoid for two days, supporting their conclusion that he had been drugged. He reported the incident to the RSO and was later recommended for separation for cause based on two charges: 1) Conduct Unbecoming, for having had commercial sex in violation of Department policy; and 2) Dishonesty, for having reported his credit cards stolen, when he still had them in his possession. FSGB Case No. 2015-048.  (This case does not appear to be available at fsgb.gov but a similar case is

    FSGB No. 2012-019 (PDF) which also involves a drugged IMO employee).

IMPLEMENTATION DISPUTES

During the past year the Board resolved two implementation disputes filed by AFSA.

  • The first involved the meaning of language in the 2013 Precepts governing the award of Meritorious Service Increases (MSIs). AFSA and the Department had for many years negotiated the Procedural Precepts concerning MSIs. The Precepts had historically called for awarding MSIs to all employees recommended by the Selection Boards, up to a set percentage of employees in each competitive class. Due to the sequester of funds government-wide in 2013, the negotiated language permitted withholding payment of the MSIs. When the sequester was lifted, the Department nevertheless continued to withhold payment of the awards. AFSA argued that refusal to pay at that point violated the terms of the Precepts to which they had agreed. The Board found in AFSA’s favor, based on the parties’ past practice. The Department has appealed this decision to the Foreign Service Labor Relations Board, which has not yet ruled. FSGB Case No. 2014-028. (PDF)
  • In the second implementation dispute, AFSA alleged that the Department had failed to hold negotiations and/or reach agreement with it on an Embassy London change in practice relating to the deductions Embassy London employees could make from the salaries of their own domestic employees when those employees were given room and board in embassy-provided housing. AFSA contended that the embassy’s unilateral change violated the FAM and the parties’ 1987 Framework Agreement. The Board found that the appeal was filed late and dismissed it for lack of timeliness. FSGB Case No. 2015-005. (PDF).

Read the full report below or read it online via fsgb.gov:

 

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Burn Bag: @StateDept announces its disappointment … 👀 OMG! It’s nice to feel valued!

 

Via Burn Bag:

[Last week] we got the word that the Department will have to pay out on the 2013 MSIs.  They lost once, appealed and the review board denied the appeal.

Unbelievably, they added this line to the cable “The Department is disappointed by the  [review board] decision.”

It’s nice to feel valued.

via reactiongifs.com

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To read more about the implementation disputes governing the award of the 2013 Meritorious Service Increases (MSIs), check the files below. The Foreign Service Grievance Board found in AFSA’s favor last year. The Department appealed this decision to the Foreign Service Labor Relations Board (FLRA), which rendered its decision on April 20, 2016, see below:

 

Related files

  • AFSA v. State Department – Decision FSGB No. 2014-028  (PDF)
  • AFSA v. State Department – Timeliness FSGB No. 2015-006 (PDF)
  • AFSA v. State Department – Timeliness FSGB No. 2015-005 (PDF)