FLRA Tells VA to Reinstate Employees Fired Under Trump’s Firing Law

Categories: VA, The Insider

The Department of Veterans Affairs has once again been told to reinstate and make whole employees who had been suspended, demoted, or fired without first given a chance to improve their performance. 

In a major victory for AFGE and employees at the VA, the Federal Labor Relations Authority (FLRA) rejected the VA’s latest appeal to reconsider its decision that the VA had violated a union contract by disciplining employees under 38 U.S.C 714 without giving them a chance to improve. 

“The Authority denied the Agency’s exceptions because they failed to demonstrate that the award was contrary to law, failed to draw its essence from the parties’ agreement, or that the Arbitrator exceeded his authority,” said the FLRA in a June 25 decision. 

The FLRA in November upheld an arbitrator’s 2018 decision in a national grievance which found that the VA violated the union contract by removing, demoting, or suspending VA employees without first allowing employees to improve their performance through a 90-day performance improvement plans (PIPS) as stipulated in the union contract.  

The FLRA ordered the VA to comply with the contract, rescind any adverse actions taken against employees who did not first receive a PIP, make whole those employees, and restore their leave and other benefits. 

The firing law 

On June 23, 2017, then President Trump signed into law the Veterans Affairs Accountability and Whistleblower Protection Act, promising to help the VA get rid of unethical managers and help veterans get their health care faster. The act came into existence allegedly due to the wait list scandal in which managers manipulated the data to qualify for big bonuses.  

But so far, it has been a massive failure – as we predicted. Since enactment of the law, thousands of lower-level VA employees such as housekeepers, food service workers, and nursing assistants have been fired. Within its first year, more than 2,600 employees were fired – with only 5 being top officials. These excessive firings resulted in a Senate VA Committee letter to VA leadership citing concerns of abuse. Instead of making the VA more efficient, it's created even more damage to this massive agency that takes care of nine million veterans every year.  

In September 2017, the AFGE National VA Council (NVAC) filed a national grievance after the Veterans Benefits Administration (VBA) began notifying employees of a change in disciplinary procedures, following the enactment of the VA Accountability Act. AFGE NVAC argued that the notices violated the union contract, which states, in part, that the VA must provide employees with a legitimate chance to improve performance prior to initiating performance-based disciplinary action. 

The VA argued before the arbitrator and the FLRA that the Accountability Act supersedes the collective bargaining agreement. However, in August 2018, an arbitrator ruled in favor of AFGE NVAC, citing that the law does not state what the VA “may or should do prior to any decision to remove, demote, or suspend an employee based on performance.” That arbitration award applied to all AFGE bargaining unit employees. 

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