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Promotions Blocked by the Board
The Union has recently concluded an arbitration addressing the Board’s unilateral changes to the productivity element in the attorney performance plan and the promotion criteria. As presented during the arbitration proceedings, the adverse effects on attorneys encompassed the denial of grade promotions, within-grade increases, and overtime opportunities. Additionally, there were concerns about job retention due to improper ratings in the critical element of productivity, leading to the issuance of performance improvement plans (PIPs). The arbitration process spanned five days and involved thirteen witnesses and numerous documents. Today, both parties have submitted their post-hearing briefs. We anticipate the Arbitrator’s decision within the next 60 days. For those with time constraints, here is a summary of the dispute.
The productivity standard in the attorney performance plan is an objective and unambiguous annual standard in that it speaks only to the number of signed decisions/issues that an attorney is expected to complete within the fiscal year, subject to proration for non-duty time. Regrettably, the Board has deviated from its statutory and contractual bargaining obligations by reinterpreting specific language within the 2021 Memorandum of Understanding (MOU), currently in effect. This reinterpretation suggests that attorneys are now obligated to fulfill their annual productivity goals on a pro rata basis, either at the time of review or within a specified number of pay periods throughout the fiscal year.
The disputed language includes the Board’s ability to track the number of signed decisions and issues within each decision an attorney has produced during the performance year, and that the Board “may conduct frequent progress checks to ensure each attorney is on-pace to meet their annual production requirement.” However, tracking attorneys’ productivity during the fiscal year and frequent progress checks to ensure attorneys are on-pace to meet their annual goals does not mean interpreting the productivity standard as requiring attorneys to meet their annual goals on a pro rata basis either at the time of a review or for a certain number or percentage of pay periods. This novel interpretation remains unclear and is being arbitrarily applied. It also resulted in an unlawful interpretation and application of provisions to which the parties agreed concerning career ladder promotions.
The law and the Master Agreement properly recognize that performance standards and promotion criteria should not pose as enigmas for employees to decipher. Rather, they must, to the maximum extent feasible, permit the accurate appraisal of performance based on objective criteria. The Board does not understand these basic merit system principles. Further adding to the confusion, the Agency’s new interpretation of “on pace” is fluid and continually evolving at the whim of various management officials. For instance, when asked about whether being on-pace for 50% of the fiscal year would be adequate for the promotion panel to endorse a GS-14 promotion, DVC Scharnberger’s response indicated a dimension of uncertainty:
I don’t think there’s a specific number. I think what you want to see is a number of pay periods in a row or in a short period of time even if there was a gap in the middle there somewhere that demonstrated you could get and stay at that pace. But it could vary from person to person depending on what the non-on-pace portion of the year looked like or what other factors are going on with that particular employee.
Further highlighting the Board’s bad faith is a waiver scheme upper management introduced in 2022 for GS-14 promotions. Rather than submit an attorney’s GS-14 promotion packet to the panel at the requisite time-in-grade eligibility timeframe, VLJs began pressuring some attorneys to waive their contractual right to panel review to avoid being rejected and possibly shortening the delay for promotion reconsideration. Once again, the Board has violated both the law and the Master Agreement by clandestinely implementing this change in conditions of employment without notifying the Union.
The arbitration proceedings brought to light DVC Tamia Gordon as the most egregious offender. During the arbitration, evidence surfaced that one attorney was promoted to GS-14 in January 2021, despite not consistently being on-pace or meeting on-pace criteria at the time of review. Astonishingly, approximately 2½ years later, in June 2023, DVC Gordon jeopardized this attorney’s retention by issuing a Performance Improvement Plan (PIP) for being nine issues behind (less than one week) with over three months remaining in the fiscal year. Essentially, the level of performance that warranted a GS-14 promotion in 2019 was deemed unacceptable in 2023.
Evidently, DVC Gordon was not attentive during the DVC meetings in January or February of 2023, where, according to DVC Scharnberger’s testimony, guidance was provided regarding the “general zone” for unacceptable performance in the productivity standard, leading to the issuance of Performance Improvement Plans (PIPs). This undisclosed “general zone,” announced at the DVC meeting but not shared with the Union or the attorneys, set a three-week lag, equivalent to nine cases or 27 to 28 issues, to trigger a PIP. This uncommunicated guidance, offering a three-week cushion to avoid a PIP, is significantly more lenient than DVC Gordon’s self-imposed perfection standard. In essence, the evidence unveiled a pattern of the Board continuously altering and adjusting the productivity standard without notifying the Union, the affected attorneys, or even among themselves. Notably, DVC Gordon did not provide testimony.
The Board also made a strategic decision not to bother with calling Senior DVC Santoro as a witness to defend his position as the deciding official of the Grievance, even though he had a front-row seat to witnesses testifying about his and the other DVC’s violations. Instead, he chose to hide behind DVC Scharnberger, the only DVC who did testify, because, clearly, spectator seats are just more comfortable than witness stands. More seriously, Senior DVC Santoro was quite available to testify. That he, the deciding official, chose to serve as an observer rather than a witness speaks volumes. The only reasonable conclusion is that Senior DVC Santoro could not testify in support of the Agency’s arguments under oath.
The Board’s defense, asserting that it hasn’t altered its interpretation of the 2021 Memorandum of Understanding (MOU), faced near-unanimous rejection from a multitude of witnesses, including a VLJ. This VLJ expressed deep concern after one of her attorneys was unjustly denied a GS-14 promotion by the promotion panel. The VLJ’s anger and frustration over the Board changing conditions of employment without notice were documented in an email to DVC Rodrigues, which was submitted as evidence. In the email, she wrote: “At no time was I aware that [this Attorney] needed to be consistently ‘green’ from 10/1/21 through 7/2/22 as a prerequisite to obtaining her promotion. It is not articulated in the GS-14 promotion panel memo from 2019 or in any other written document that I am aware of.”
Importantly, the VLJ’s statements remain uncontroverted despite the presence of DVC Rodrigues, her supervisor, at the arbitration to observe witness testimony. This is consistent with JR Cummings’ testimony that DVC Rodrigues had admitted to him that the promotion panel was looking at information “differently” than prior panels. Notably, the Agency also opted not to call DVC Rodrigues as a witness to challenge or counter any of the testimony provided, even though he was available in the room observing witness testimony. This suggests that DVC Rodrigues could not offer evidence or testimony to the contrary. This absence of refutation lends significant weight to the VLJ’s testimony and reinforces the notion that the unannounced change in promotion criteria has led to substantial practical and financial consequences for affected attorneys.
If you’re interested in delving deeper, I encourage you to read the Union’s post-hearing brief. The revelations about the lack of integrity, judgment, and leadership are both shocking and disheartening. It’s worth noting that, ironically, DVC Scharnberger, the sole senior official to testify, is not the one responsible for the prevailing chaos. In fact, he is widely liked and respected among the attorneys and VLJs he manages, as he consistently strives to support them within the confines of the current system. The fact that he willingly testified stands in stark contrast to other more culpable senior officials who declined to face questions from Union counsel.
Union’s Post Hearing Brief
Download the Post Hearing Brief
You can read the Post Hearing Brief below, or click here to download it.
Union-Brief-Draft-Final-For-Website
