In a major victory for AFGE National VA Council, an arbitrator recently ruled that the Department of Veterans Affairs has engaged in bad faith bargaining and ordered the agency to cease and desist its pattern of unlawful conduct and go back to the bargaining table to negotiate in good faith with the largest union of VA workers.
Following a historic settlement agreement in July 2021, NVAC and the VA have been in contract negotiations on a “limited reopener” of the 2011 Master Agreement since March 2022. Instead of fulfilling the promise of the Biden-Harris Administration to expand collective bargaining rights and empower federal workers, VA negotiators are demanding that the union accept concessions in nearly every article of the contract.
The parties have completed 19 weeks of bargaining and exchanged nearly 100 counterproposals but have not reached an agreement on a single article as the VA has engaged in bad faith bargaining.
The agency, for example, insisted that all existing local supplement agreements (LSAs) and Memorandum of Understandings be terminated. It will not agree to provide performance improvement plans (PIPs) to employees whose adverse actions are taken under the 2017 VA Accountability Act even though the Federal Labor Relations Authority held that PIPs were not conflicting with the law. VA negotiators also refuse to recognize FLRA precedent or provide data to support its bargaining proposals.
AFGE subsequently filed four national grievances against the VA. On March 9, Arbitrator Felice Busto issued her decision regarding NVAC’s first two national grievances, ruling that the VA indeed negotiated in bad faith in violation of the parties’ agreements and law.
Arbitrator Busto found that VA violated the parties’ ground rules by repeatedly attempting to negotiate over subjects outside the scope of the “limited reopener.” For the PIPs issue, for example, the arbitrator agreed with AFGE that the agency ignored the FLRA ruling that said there was no conflict between the Accountability Act and the union contract requiring PIPs. The arbitrator also agreed with the union on the local supplements issue, finding that the VA cannot force AFGE to negotiate over a waiver of its right to bargain. She also concluded that a pattern of bad faith behavior amounted to “surface bargaining” in violation of the law.
“Although the Agency had the right to negotiate regarding the procedures for LSAs it did not have the right to unilaterally insist that all such agreements expired. It is well settled that while a party may seek to renegotiate the terms of an agreement it cannot insist that provisions of the agreement are “expired” or “no longer enforceable,” the arbitrator said. “The Agency’s proposals on [Articles 14 and 46] were regressive and attempted to remove longstanding provisions of the Agreement regarding Discipline/Adverse Action and LSAs from the Agreement.”
The arbitrator ordered the VA to withdraw its proposals in multiple articles, cease and desist from further violations of the law and agreements, and return to the bargaining table to negotiate in good faith. She also ordered VA Secretary Denis McDonough to sign a written posting acknowledging VA’s bad faith bargaining, with a copy provided to all 291,000 AFGE bargaining unit employees.
Secretary McDonough recently claimed that “good faith bargaining” was progressing with AFGE and that “tentative agreements” were reached at every bargaining session.
Here is a link to the press conference. His comments about AFGE begin around the 12:45min mark.
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