November 20, 2020

Brittany Holder
[email protected]

Largest Federal Employee Union Earns Backpay for Veterans Affairs Employees That Were Fired Unfairly Using Trump Firing Law

Categories: VA

An arbitrator and the Federal Labor Relations Authority both ruled that the VA violated the union contract by disciplining employees without giving them a legitimate chance to improve performance

WASHINGTON – The Federal Labor Relations Authority (FLRA) recently upheld an arbitrator’s award in a national grievance which found that the Department of Veterans Affairs (VA) violated a union contract by removing, demoting, or suspending VA employees without first allowing employees to improve their performance.

In September 2017, the AFGE National VA Council (NVAC) filed a national grievance citing the contract violation, after the Veterans Benefits Administration (VBA) began notifying employees of a change in disciplinary procedures, following the enactment of the VA Accountability and Whistleblower Protection Act – a statute used to expedite the firing, suspending, and demoting of employees. 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. 

The arbitrator’s award mandates that the VA make whole all employees who were disciplined under the Accountability Act without first being given the opportunity to improve their performance. This requires the VA to rescind the disciplinary action, including reinstatement for fired employees, and to provide employees with backpay for lost wages and other associated benefits.

On Nov. 11, the FLRA upheld this decision following the VA’s appeal of the arbitrator’s decision.

“We are extremely pleased with the FLRA’s decision to uphold the arbitrator’s initial award. The VA Accountability Act has been used disproportionately to fire low-level employees, not to fix issues caused by failed leadership, such as chronic understaffing amidst a global pandemic. We are glad that these employees will deservedly be made whole, and that new leadership is coming to the VA who will work together with VA workers to deliver the highest standard of care to our veterans,” AFGE National President Everett Kelley said.

Since enactment of the VA Accountability Act in 2017, 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.

“President Trump has repeatedly boasted about firing low-level employees using provisions of the VA Accountability Act, falsely labeling front-line VA caregivers ‘sadists’ and ‘thieves’ while completely failing to bring accountability to anyone in VA leadership. This decision is a complete victory for our members and VA employees across the country who have dedicated their lives to caring for our nation’s veterans, even through a pandemic,” said Alma Lee, AFGE NVAC President.

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