FLRA: VA must reinstate feds fired under EOs, issue back pay
- By Natalie Alms
- Nov 20, 2020
The Federal Labor Relations Authority has upheld a national grievance award that directed the Department of Veterans Affairs to reinstate removed bargaining unit employees who didn't receive 90-day performance improvement plans with back pay and benefits.
"This decision is a complete victory for our members and VA employees across the country," said Alma Lee, president of the National VA Council (NVAC), which is part of the American Federation of Government Employees (AFGE).
The FLRA dismissed the VA's exceptions to the grievance award and upheld an arbitrator's 2018 decision.
AFGE represents around 270,000 bargaining unit employees at the VA, said Thomas Dargon, staff counsel at NVAC, in an interview with FCW. Dargon said the union estimates that 1,000 VA employees will be covered by the ruling, although the exact number hasn't been finalized.
At the center of the dispute is the 2017 VA Accountability and Whistleblower Protection Act, which made it easier for VA employees to be to fired, suspended or demoted and established a whistleblower protection office.
Union leaders say that the law has primarily been used to discipline low-level employees, not those in powerful positions, and has exacerbated staffing problems at an agency with chronic understaffing. President Donald Trump has touted the law's effectiveness in easing the removal of poor performers.
NVAC originally filed the national grievance in September 2017, after the VA began to notify employees of changes in disciplinary procedures because of the passage of the VA Accountability Act. The union argued that the contract, which mandates the use of improvement plans for poorly-performing employees, had been violated as a result.
An arbitrator ruled in favor of NVAC and found that the VA violated the collective bargaining agreement when it disciplined VA employees by suspending, removing, or demoting them on performance grounds without first providing the 90-day improvement plans.
The award, which the FRLA upheld this week, instructed the VA to "make whole" any bargaining unit employees disciplined under the Accountability Act without first having improvement plans by rescinding the disciplinary action and reinstating fired employees with back pay and benefits.
Although the initial grievance was against the Veteran's Benefits Administration, the scope of the grievance award is expected to affect VA bargaining unit employees at large, Dargon said.
The VA had argued that the VA Accountability Act took precedence over the contract, which mandated the use of improvement plans. It also argued that the arbitrator's ruling exceeded the arbitrator's authority by including all bargaining unit employees and that it constituted an "essence exemption" not derived from the collective bargaining agreement. The FRLA dismissed these claims in its decision this week.
The FLRA decision comes weeks after the Federal Service Impasses Panel, which operates under the FLRA, sided with the VA in a contract ruling involving the NVAC. The union has filed a motion with the FLRA for a stay of that decision, which limited the ability of employees to challenge performance-related actions. It also barred the use of official time for grievances.