In a major victory for the AFGE National VA Council, an arbitrator ruled May 13 that the Department of Veterans Affairs violated the collective bargaining agreement and the executive order itself when it unilaterally implemented Trump’s executive order restricting official time two years ago.
The arbitrator also found that the VA improperly denied union representatives official time and thus ordered the VA to award union reps backpay with interest and restore their annual leave spent performing representational duties during the agency’s implementation of Trump’s executive order.
“This decision is one step in the right direction of correcting the harm,” said NVAC President Alma Lee. “The executive orders have done nothing but wreak havoc on the union and our ability to represent the employees of the VA. Even today, the effects continue as employees face hurdles when they seek us out for assistance in relation to VA’s COVID-19 response.”
Almost two years ago, President Trump issued three executive orders attacking federal employees’ workplace rights and impeding their unions’ employee representation at the worksite.
One of the May 25, 2018 executive orders restricted the use of official time – the hours federal employees who are union volunteers use for legally mandated representation of their coworkers in the workplace, such as filing a grievance on retaliation or unfair termination.
AFGE, joined by several federal labor unions, immediately filed a lawsuit in U.S. District Court against the three executive orders, including the one on official time, challenging their constitutionality.
While the lawsuit was pending, the Department of Veterans Affairs unilaterally implemented the official time executive order in July 2018, prompting the NVAC to file a national grievance, arguing that the agency violated the master agreement, the executive order itself, and federal law when it failed to bargain with the council before implementing the official time executive order.
When the U.S. District Court ruled against the Trump administration, largely striking down the executive orders, the VA rescinded its implementation of the official time order. Even though the EO was rescinded, the agency refused to grant the union relief—including the restoration of any official time lost during that six-week implementation period.
The arbitrator on March 13 largely ruled in favor of the NVAC and ordered the VA to award union reps backpay and restore their annual leave. Under the Back Pay Act, any employee receiving backpay is also entitled to payment of interest.
“The department’s actions violated the Executive Order, the collective bargaining agreement and resulted in the commission of a number of unfair labor practices,” wrote Arbitrator Kurt Saunders in sustaining the union’s grievance. “Because of these violations the department suffered a backpay obligation that, but for the violations, would not have been incurred.”
He also determined that union officials would not have to present evidence that they requested and were denied official time in order to make a claim. The arbitrator encouraged the parties to meet and confer regarding the specific procedure for processing claims but retained jurisdiction for 60 days to resolve any disputes over the implementation of the decision.
This national grievance is one of the two national grievances the council filed over the VA’s unilateral implementation of the executive orders. The second grievance was filed after the VA implemented the executive order again following the U.S. Court of Appeals’ determination that the U.S. District Court did not have jurisdiction to rule on the lawsuit filed by AFGE and other federal unions against Trump’s union-busting executive orders.
The second national grievance is scheduled for arbitration in August.