AFSA NEWS AFSA Wins Grievance In 2020 AFSA filed an implementation dispute with the Foreign Service Grievance Board (FSGB) against the agency for not adhering to policies that had been negotiated with AFSA, as outlined in ADS 414.3.2.3, regarding the creation of noncareer Foreign Service Limited (FSL) positions and improperly withdrawing from the governing USAID AFSA Memorandum of Understanding (MoU). The dispute was not filed over FSLs as a hiring category or on behalf of a specific individual or group of FSLs. AFSA represents both career and noncareer Foreign Service (FS) employees— including FSLs—as part of our bargaining unit, as outlined in the 1980 Foreign Service Act and reaffirmed in the USAID-AFSA Framework Agreement. FSLs are highly qualified and valued members of the FS who serve as specialized technical advisers, strategic planning and resource management specialists, budget analysts, and in a host of other roles. Why did AFSA file this dispute? For two years prior to filing the dispute, the agency had been refusing to comply with the terms of ADS 414.3.2.3 and the terms of the MoU governing ADS 414. Under the MoU, AFSA was to be provided with documentation supporting the creation of new FSL positions and afforded the opportunity to ask clarifying questions. AFSA was not permitted to deny the creation of new FSL positions. Our role was to ensure agency compliance with ADS 414. During this period, AFSA submitted numerous requests, with no response from the agency or a refusal to respond. Ultimately, the agency advised AFSA that it would not answer any future requests and withdrew from the MoU. AFSA filed a dispute alleging that the agency: 1. Violated a 2017 Foreign Service Limited Appointments MoU when the agency failed to respond to AFSA’s comments and questions; 2. Violated the collectively bargained criteria for FSLs set forth in ADS Chapter 414.3.2.3; and 3. Did not withdraw from the MoU governing ADS 414 in a timely manner. After filing the dispute, AFSA and the agency engaged in a very lengthy discovery process and filed various motions and legal memoranda. On Sept. 4, 2024, in case number 2020-049 the FSGB ruled in favor of AFSA on points 1 and 2 and against AFSA on point 3. What does it mean, and what’s next for AFSA? It means that the agency failed to follow policy, that had been negotiated with AFSA establishing new FSL positions. And the agency failed to engage in constructive dialogue with AFSA in the performance of our duties protecting and advocating for the FS workforce by ensuring proper implementation of ADS 414. The FSGB directed the agency to notify the field that it had not complied with the requirements of ADS 414. For the more than 26 positions established in the period covered by the dispute, the agency must now respond to the original questions submitted by AFSA. Additionally, the FSGB directed the agency to “comply with ADS 414.3.2.3 for future FSL appointments unless or until its provisions are amended through collective bargaining.” The FSGB also invited AFSA to submit a petition for attorney fees. Since the ruling, the agency and AFSA have been discussing a settlement outlining implementation of the ruling. AFSA’s intent is to return to the oversight provided under the MoU but with caveats recognizing the need for FSL positions at the FS-2 level in D.C. while protecting USAID VP VOICE | BY RANDY CHESTER AFSA NEWS Contact: chester@afsa.org | (202) 712-5267 AFSA will continue to serve as a check on new positions while also increasing efforts to support our valued FSL colleagues. THE FOREIGN SERVICE JOURNAL | DECEMBER 2024 59 FSO positions overseas and at the FS-1 level in D.C. Our aim is to be a check on the agency and ensure that the policies outlined in ADS 414 and new ADS 414 are followed, that bureaus are doing required due diligence creating FSL positions, and that HCTM adheres to agency policy. Too often, the agency allowed bureaus to create FSL positions without proper planning as a way to avoid budget constraints. This has harmed both FSOs and FSLs at USAID, who too often found themselves pitted against each other and feeling undervalued. The FSGB’s decision, coupled with the new ADS 417 on workforce planning and updates to ADS 414, should go a long way in restoring real workforce planning at USAID. AFSA will continue to serve as a check on new positions while also increasing efforts to support our valued FSL colleagues. If you have any questions on the implementation dispute, the FSGB’s ruling, or any other issue please contact me at chester@afsa.org. n
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