The Foreign Service Journal, October 2016

THE FOREIGN SERVICE JOURNAL | OCTOBER 2016 63 AFSA NEWS and grievant agree to it, the FSGB can offer free, non- binding mediation by one of the board members in lieu of taking a case through to a board panel decision on the merits. Q: What are some typi- cal remedies the FSGB is authorized to order? A: The board can order payment of allowances that were denied in error. Some- times an agency is ordered to reconsider a penalty in light of a finding that one or more specifications in a discipline case were unsub- stantiated. Fairly regularly the board orders reconsti- tuted promotion panels to consider the files of griev- ants who have proven some sort of irregularity and resulting harm in how they were reviewed by the regular panels. The board can order that part or all of an employee evaluation be expunged if a preponderance of the evidence shows that it contained inaccuracies or prejudicial language. On rare occasions the FSGB recom- mends that the Secretary of State effect tenuring or a promotion. Significantly, from the standpoint of ensuring due process, the agency can also be ordered to pay attorney fees to a successful party’s legal representative. Q: What does the FSGB do to protect grievants’ privacy? A: The Code of Federal Regu- lations instructs the board to make decisions available so as to allow the agencies, AFSA and Foreign Service members to be aware of the kinds of cases we receive and how we resolve them— “without invading the privacy of the grievants.” Personally identifiable information (PII) such as birth dates, home addresses and Social Secu- rity numbers is redacted from filings, as are grievants’ names and postings from all decisions and orders included on the FSGB public website. It is not a fail-safe system, and occasionally something slips through. If it is noted that PII has been found on the website (www.fsgb.gov) , the offending document is removed and thoroughly scrubbed before re-posting. Q: How long does it take to get a decision from the FSGB? A: That depends on many factors, not all of which are within the board’s control. The “discovery” phase, where the parties can request answers to questions and production of documents and witness testimony from each other, can take quite a bit of time. Sometimes there are sub- disputes about how much each side will provide, and this can drag out resolution of the larger case. Other times the board itself is divided on how to rule in a case and spends many hours, over weeks or months, debating the relevant facts or law before coming to a consensus view—or not, in which case a member may dissent from the majority opinion. It is difficult to generalize, but on average an appeal that the parties have not been able to settle among themselves takes about nine months from filing to decision. Q: What have been some of the FSGB’s most influ- ential rulings? Have any decisions substantially changed the way the foreign affairs agencies operate? A: The FSGB has been especially concerned to ensure that full procedural protections apply to all kinds of evaluations, not just conventional Employee Evaluation Reports and their equivalents in the other foreign affairs agencies. For example, the board has held supplemental evaluations on non-tenured officers at USAID and Inspector’s Evaluation Reports on senior leaders at State to similar standards as regu- lar evaluations in terms of adequate counseling, notice and opportunity to improve performance, ensuring that everyone from the bottom to the top of the Service hierarchy enjoys due process at appraisal time. Q: How does the FSGB work with AFSA? A: AFSA, as the exclusive representative for nearly all Foreign Service members, has the option to intervene in grievance appeals even when an AFSA staffer isn’t directly advising the grievant. The FSGB routinely copies AFSA on all correspondence with agency representatives and grievants, including cases where a grievant has retained a private attorney. Also, Chapter 22 of the U.S. Code assigns the FSGB the role of arbitrator in deciding disputes between the agen- cies and AFSA regarding the interpretation of their collec- tive bargaining agreement provisions. The board’s decisions in these so-called implementa- tion disputes—such as those about the payment of Meri- torious Service Increases— are subject only to limited review by the Foreign Service Labor Relations Board. The FSGB works collegially with AFSA and the agencies. Over years of working together to protect employee rights and smooth employee relations, AFSA and FSGB staffs have developed cordial relation- ships that transcend the contentiousness of any given dispute. n