November 10, 2020

Brittany Holder
[email protected]

Trump-Appointed Panel Imposes Anti-Worker Contract Proposals on 265,000 Veterans Affairs Employees During Pandemic

Categories: VA

Biden administration will have power to restore fair contract for VA workers nationwide

WASHINGTON -- On Nov. 5, Trump appointees on the Federal Service Impasses Panel (FSIP) ruled to impose anti-worker contract proposals on 265,000 Veterans Affairs employees as the agency struggles to keep pace with a third wave of the coronavirus pandemic. The decision is sure to be controversial, generating an unusual dissent from certain members of the panel, the composition of which is under a cloud of legal uncertainty. 

The importance of a fair contract is a matter of life and death during the COVID-19 pandemic, which has claimed the lives of 64 VA employees and more than 4,000 veterans. Instead of listening to VA workers when they raised the alarm about PPE shortages at the start of the pandemic, Secretary Robert Wilkie and VA officials focused on evicting union representatives from office space as cases spiked and dismissing public reports of problems within the VA only to acknowledge the shortages once internal memos were leaked. Currently, more than 7,000 VA employees have tested positive, and that number steadily increases as the VA continues to unnecessarily rush non-essential, telework-eligible employees back to worksites. 

The panel’s decision cannot legally be implemented by the VA at this time. The legitimacy of the panel’s ruling is still in question because of a controversy about the constitutionality of the members’ appointments, which will be resolved by the courts. Likewise, nine articles from the parties’ existing contract are the subject of a separate lawsuit in federal court. Moreover, even if the panel’s appointment is ruled as sound, FSIP only has jurisdiction to resolve impasses. The panel does not have the authority to rule on unresolved negotiability matters, overrule tentative agreements between the VA and the union, or resolve matters that have not reached the point of impasse.

While VA members await the resolution of these matters, the FSIP decision is not in effect. Attempts by the VA to implement any part of the FSIP decision would be illegal.

This unlawful attack on thousands of VA members could also be reversed by the Biden administration. Biden will have the power to encourage the negotiation of a fair VA contract, bargain in good faith and rescind Trump’s controversial VA executive orders, which Biden has prioritized on day one of his presidency to restore the rights of government workers to unionize

The American Federation of Government Employees’ National Veterans Affairs Council (NVAC) has filed a Motion for Stay of the panel’s decision with the Federal Labor Relations Authority (FLRA). AFGE/NVAC asks that FSIP’s decision be stayed pending resolution of its lawsuit and the 22 negotiability appeals filed with the FLRA after the VA claimed, without any legal support,  that a host of issues were non-negotiable. 

The Trump administration has continually undermined the union rights and contracts of federal employees, without regard for the efficiency of operations, service to the public, or the well-being of employees. The latest decision contains many subject areas where the panel’s decisions are wholly consistent with that pattern of behavior:

  1. Duration of Contract: In an attempt to lock in the anti-worker changes made to the contract, the panel imposed a seven-year term for the contract. Most collective bargaining agreements are for three or four years, making a seven-year term far outside the mainstream. 
  2. Equal Employment Opportunity: The panel chose to eviscerate EEO rights of VA employees by implementing VA management’s proposal in full, removing guidance and instruction for employees regarding EEO rights, taking away procedures and processes that support employees pursuing EEO claims, denying access to EEO documentation, and illegally prohibiting the use of official time for EEO matters for union representatives, which inhibits the ability of most employees to obtain a knowledgeable representative in EEO matters. All this is happening in the context of a department currently undergoing a Government Accountability Office investigation into shocking claims of systemic discrimination. 
  3. Health and Safety: The panel abolished the Health and Safety article of the contract during a pandemic. All protections, processes, and procedures -- including commitments for PPE, committees, and inspections -- are gone. The ruling imposes this attack on employee safety despite acknowledging that employees are getting sick and dying due to insufficient action taken by the department to protect them during the coronavirus pandemic, as described by the VA Inspector General.
  4. Investigations: The panel stripped away all processes and procedures establishing fair and regular investigations, removing advance notice for interviews, stripping union access to agency materials, and removing additional official time for investigations. 
  5. Time for Representing Employees: The panel eviscerated the time union officials have traditionally been able to use to represent employees and resolve workplace issues, even as problems continue to plague VA employees nationwide during the COVID-19 pandemic. 
  6. Labor-Management Training: The panel ended all existing joint labor-management training, making it clear that the administration has learned nothing from its mistakes during COVID-19 and has no plans of listening to the concerns of front-line employees in the future. 
  7. Discipline: The panel stripped procedural and process protections for employees, slashing the timeline for both disciplinary and adverse actions, and taking away the requirement for progressive discipline in a blow to due process.
  8. Surveillance: The panel broadly expanded the scope and reason for surveilling employees to anything allowed under the law, stripping away all procedures and processes protecting employees’ rights and interests to privacy at work.

A copy of the full ruling is available upon request. AFGE NVAC leadership and workers are available for media interviews to discuss this decision and what the next administration may look like for the union. 

“It’s shocking that this administration continues to attack the dedicated employees, including front-line health care professionals, who come to work every day to care for our veterans and produce the high satisfaction scores the president loves to tout at his political rallies,” said AFGE National President Everett Kelley. “But, as has become clear, the American people are tired of Trump’s divisive leadership. The next administration can undo this travesty and move the VA forward with a fair contract that ensures veterans and VA employees are treated with dignity and respect.” 

“AFGE NVAC is disappointed with the panel’s decision on the union’s Master Collective Bargaining Agreement, but not entirely surprised that a Trump-appointed panel would rule the way they did,” said Alma Lee, president of AFGE NVAC. “Since he was first appointed to his post, VA Secretary Wilkie has sabotaged and worked against the union so that the panel’s decision on our contract reflects his anti-union and racist tendencies. But there is hope.  The union is confident that the incoming Biden-Harris administration will right the wrongs of the Federal Service Impasses Panel and provide a strong, safe, and fair contract and workplace for all union members and VA employees.”

A brief timeline of the contract dispute is below: 

  • December 2019: After a years-long assault by the Trump administration on the collective bargaining rights of VA workers and a broader push to privatize the VA, negotiations over the new contract were forced into impasse, putting resolution of the dispute in the hands of an impasse panel. 
  • March 2020: The NVAC filed a lawsuit against the panel as its members were appointed by the Trump administration but not approved by the Senate, making it unconstitutional.
  • May 2020: The NVAC sought a federal injunction to prevent the panel from imposing a decision on the contract negotiations.
  • June 2020: The union and the VA submitted their respective proposals for the new contract in initial filings to the Federal Service Impasses Panel. 
  • July 2020: AFGE filed a rebuttal against the VA for its unlawful and contradictory proposals for the new contract. The VA’s proposals violate federal law and the department’s own stated positions, preventing the two parties from reaching a fair agreement that would benefit VA workers and the veterans they serve. 
    • AFGE challenged the VA’s decision to remove nine articles from collective bargaining in federal court. 
    • The VA has also refused to bargain with AFGE over the implementation of three Trump administration Executive Orders from 2018 -- 13836, 13837 and 13839 -- that deal directly with performance evaluations, disciplining employees, access to office space and equipment, and the amount of time workers can spend on union activities. 
  • September 2020: The Federal Service Impasses Panel began its deliberations on the contract.

“This decision shows members of the union what a world without a fair contract looks like,” said Linda Ward-Smith, president of AFGE Local 1224 in Las Vegas. “The panel has denied the union a fair and equitable contract and ability to negotiate. Every article we had the panel didn’t like, because it ensured employees of their rights and that they would not be discriminated against when it came to those issues. The panel wanted management to have all of the decision-making power and we know that’s not fair. This is no longer a partnership – it’s a dictatorship. However, the results of this election prove that better days lie ahead for the union.”



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