Some people call it a Within-Grade Increase (WIGI) issue while others use the Acceptable Level of Competence (ALOC) label. Both refer to the salary step increases employees qualify for periodically.  While it is rare that a manager ever denies a step increase, denials do happen.  And when they do it is important for the union to know the unusual details of challenging a denial of this 3% salary increase. We have posted three important pieces on this issue which we list and link at the end of this one.  But MSPB just issued what it calls a precedential decision dealing with the right to challenge a denial, giving employees and their unions a new option.

The foundational rule about challenging a WIGI/ALOC denial is that if the issue can be grieved under a labor agreement the employee does not have the option to appeal to MSPB. There has been a long-standing exception to that spelled out in 5 USC 7121(d) which gives the employee an option to appeal to MSPB when s/he claims the denial was based on discrimination under 5 USC 2302(b)(1). In other words, the employee can go to MSPB if the denial was based on discrimination due to race, color, religion, sex, national origin, age, marital status, political affiliation, or handicapping condition.

But as of a few days ago, MSPB now allows the employee to challenge a denial through the grievance procedure or MSPB if s/he is alleging that it was based on any of the prohibited personnel practices listed in 5 USC 2303(b). MSPB also used the decision to announce that the OPM regulation on challenging denials which does not recognize the two exceptions of 7121(d) or 7121(g) conflicts with law. See Karl Brookins, v. Department of the Interior, 2023 MSPB 3, (2023) for more details.

This decision gives the union the option to avoid arbitration costs if it thinks it has a strong case against the agency and creates another situation where a union can tell a non-member it is not filing a grievance on his/her behalf, leaving the non-member to shoulder the cost of private legal fee to make an effective challenge.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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