The Foreign Service Journal, December 2003

'(&(0%(5 ‡ $)6$ 1(:6 7 A FSA regrets to advise that on Sept. 25, 2003, the Foreign Service Grievance Boarddenied the griev- anceAFSAfiledonbehalf of a groupof FS- 4 junior officers who sought adjustments to their salariesunder thedepartment’snew entry-level salarypolicy. Thiswas tobe the final stage in our efforts to assist JOs who entered theForeignServicebefore the 2001 new entry-level salary policy was imple- mented. Effective Sept. 9, 2001, the department adopted new procedures (SOP 104) for determining the entry-level salaries for incoming junior Foreign Service officers. The effect of the new policy was to increase the pay offered to newhires. The policy only applied to officers hired after Sept. 9, 2001, and left equally educatedand experiencedJOshiredprior to thatdateout- ranked and out-paid by their new peers. The salarydisparitieswerenot insignificant: in some cases, they amounted to over $19,000 per year, not even taking into account lower allowances and retirement contributions. The implementationof SOP 104causedseveremoraleproblems andcre- ated an inequitable salary structure. With guidance and support from AFSA, JOs sent amessage tomanagement that the salary policy was unacceptable. After receiving a well-written petition signed by numerous JOs, the department sought to rectify the situationby announc- ing guidelines underwhich JOs in class 06, 05 and 04 could apply to have their entry- level salaries recomputed. Under this pro- cedure, the department administratively promoted eligible JOs in grades 06 and 05 and made the adjustments retroactive to March 10, 2002. AFSA understands that 92 JOs ingrades 06 and05 receiveda salary increase pursuant to this process. However, the department believed it could not legally adjust the salaries of offi- cerswhohadalreadybeenadministratively promoted to04until their competitivepro- motion to 03. When these JOs were pro- moted to03, thedepartment gave themthe option toaccept thenormal salaryandrank adjustment that FSemployees receiveupon promotionor to take the re-calculatedentry salary and rank that theywouldhave been givenupon entry if SOPhadbeen in effect then. Theproblemwith the secondoption was that the adjustedratedidnot reflect any compensation for time in the Service. The normal two-step increase that comeswith promotionwas not givenwith this option. AFSA heard from a number of 04 JOs who believed SOP 104 was unfair. AFSA agreedwith them. On July 3, 2002, AFSA filedagrievancewiththeStateDepartment’s grievance staff on behalf of five named juniorofficerswhowere affectedby thenew salary policy. The grievance alleged that the implementation of the salary adjust- ments violated the merit principles of the Foreign Service Act and violated the ForeignAffairsHandbook. AFSArequest- ed that: 1) FS-4 JOs who were eligible for a salary increase under SOP 104 be grant- ed within grade increases now; 2) If with- ingrade increaseswere not possible due to legal restrictions, eligible 04 JOs be grant- ed an appropriate within-grade increase upon their promotion to 03 plus an addi- tional two step increases per 3 FAH 01, H 2325; and 3) Experience gained in the ForeignServicebe creditedas “professional experience” under SOP 104. OnOct. 7, 2002, thedepartment denied the grievance in whole. AFSA filed an appeal with the Foreign ServiceGrievance BoardonDec. 4, 2002. After a lengthydis- covery and briefing process, the grievance board rendered its final decision on September 25, 2003. Indenying the griev- ance, the board’s decision stated the fol- lowing: “The fact that some JOs who were ini- tially appointed under the provisions of SOP 104 will earn, at least for some peri- od of time, higher salaries than similarly- credentialed grievants who were initially appointedpre-SOP104,may appear tobe unfair; it may even be unfair.” However, it continued, inmaking salary calculations upon initial appointment, the department takes into account the relevant labormar- ket situation at the time the appointment decisions are made. “It is not the respon- sibility of this board to judge the wisdom or effectiveness of the department’s exer- cise of its management choices. We are restricted to determining whether the choices violate law, regulation or policy. Grievants citeno law, regulation, policy, or provisions of a collective bargaining agree- ment…that the department has violated, and we do not find that any violation has occurred.” With regard to AFSA’s allegation that the department violated the merit prin- ciples, the board found the Foreign Service Act establishes a personnel system char- acterized by rank in person rather than in position; accordingly, the board held that there is no conflict with the merit principles when employees of different pay levels perform essentially the same work. With regard to AFSA’s argument that the department violated 3 FAH-1, H 2325a, the board found that the cable announcing the SOP 104 adjustments did not require that employees get two extra steps upon promotion on top of their SOP 104 adjustments. AFSA thanks the named grievants and the numerous junior officers who assisted us with this grievance. We were under no illusions regarding the diffi- culty of the case. The grievance board is restricted to finding a violation of law, regulation, policy or collective bargain- ing agreement. Unfortunately, it is not empowered to provide equitable relief in cases of unfairness. ▫ EYE ON GRIEVANCES JO Salary Grievance Denied BY SHARON PAPP, GENERAL COUNSEL With guidance and support from AFSA, JOs sent a message to management that the salary policy was unacceptable.