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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State Dept Public Service Recognition Week: You Rock But No MSIs

— Domani Spero

The Public Service Recognition Week for 2014 ends today. If the official clock was not broken, around 4 pm yesterday, Friday, the State Department’s Human Resources Bureau (DGHR) sent out a message to inform folks that there will be no monetary compensation for the 2013 Foreign Service MSIs.

For readers who may not know this, MSI stands for Meritorious Service Increase per authority in 22 U.S.C. 3966(b) (Section 406(b) of the Foreign Service Act of 1980, as amended).  Under 3 FAM 3121.3-2 it is the policy of the Department to provide an increase to the next higher step of the member’s class for especially meritorious service.

In any case, the email message explains that State faced “serious financial difficulties” in 2013 due to several factors including sequestration.  “We made a number of decisions to conserve resources including halting the monetary portion of extending meritorious step increases granted to a portion of those employees recommended for promotion by the 2013 Selection Boards but not actually promoted.”  In fact, DGHR points out, no other Foreign Service, Civil Service or Locally Employed Staff received a monetary award for 2013 performance, with the only exception being Safe Driver awards apparently targeted toward the lowest paid Locally Employed Staff.

Apparently, following the passage of the FY 2014 budget, there were questions about retroactive payment to 2013 MSI awardees. Since it appears that retroactive funding may not be a possibility, there were also questions whether the step increases could be funded going forward.

Yesterday, just before COB, the acting Director General Hans Klemm (nominee as DGHR Arnold Chacon is still stuck waiting for confirmation in the Senate) informed everyone via email that “after careful thought and deliberation on how best to handle the 2013 MSIs”  it’s been decided that there will be no retroactive monetary compensation to those MSIs conferred by the 2013 Selection Boards. There was no mention what happens going forward.

Part of the message from Ambassador Klemm says that Bureau of Human Resources is “determined that we do two things equally well:  manage a vigorous program to recognize and reward truly outstanding performance, and enhance intrinsic motivation as we face continuing fiscal challenges in the coming years.”  We imagine they have to figure out how to make everyone simply enjoy an activity or see work as an opportunity to learn, explore, and actualize their potentials?  He pledged to “doing the best for all of our talented and committed employees, recognizing that some things we want and arguably deserve are not always within reach.”

Uh-oh!  The email message reportedly closed with an exhortation that employees continue to “do your best.”

We understand that things are fiscally tough (unless related to the money sinkhole in Afghanistan) and we must confess we don’t know how much money is needed for the MSIs. But where’s the fire?  This is the bureau tasked with rewarding and motivating employees.  And it could not wait until next week when it’s no longer Public Service Recognition Week to to deliver the bad news.

Bravo for picking the most imperfect timing of the week! Here have some candies!

By Ewon Amos via Wikipedia

Original image  by Ewon Amos via Wikipedia

 

Less than an hour after Ambassador Klemm’s email blast, Secretary Kerry sent out his own email with the subject line, “My Thanks on Public Service Recognition Week.”

On his ‘thank you’ message to State and USAID employees, Secretary Kerry complained that Hallmark doesn’t make a card that celebrates Public Service Recognition Week. So he sent an email thanking his employees for the work they do. He notes that the work isn’t always easy and often it’s even dangerous – but that all of the employees – Foreign Service Officers, Civil Service employees, USAID team, Diplomatic Security, and locally employed staff “make a difference in the great enterprise of making this world a little safer and a little stronger each and every day.” 

He writes in part:

“One of the things that has struck me about the State Department and USAID is the remarkable diversity, expertise, and experience we have to offer – and the unique way each of you fits into the larger mosaic of the work to try and do something pretty fundamental but pretty profound: making this complicated world a little less complicated, a little more orderly, a little more free.  That’s about the best epitaph anyone could ask for, the best gift you can share through your service. And none of it works unless we’re all working together.”

“Everywhere I travel, in every meeting, from Bogota to Beijing” – he writes that he is deeply impressed of his employees’ “commitment to a future that’s stronger and more prosperous in a world that’s changing faster and becoming more interconnected than ever before…” 

Sorry folks, he has traveled 418,891 miles to 48 countries; we think, he really meant from here to here but that’s too many places to list down.

The best part perhaps — this part of the message:

“You get to spend your whole careers believing in something that will never go out of fashion:  You believe in diplomacy – you believe in something bigger and more important than any of us as individuals…”

Enhanced.Intrinsic.Motivation.

We must note that since Friday was the last working day of the week, it would have been weird had the Secretary sent his thank you email today, the end of the Public Service Recognition Week. But certainly, DGHR should have been more attentive.

“Makes for a nice end to the week,” the  snarky angels of Foggy Bottom said.

And the most requested video to feature in this blog is, you got it — Alanis Morissette singing, Ironic…

 

 

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