The American Federation of Government Employees is filing a grievance against the Veterans Affairs Department for the way the agency is implementing portions of the VA Accountability and Whistleblower Protection Act.

AFGE, which represents more than 220,000 VA employees, said the department’s new performance guidance contradicts the collective bargaining agreement it signed with the agency back in 2011.

The union and VA will face an arbitrator during an April hearing to try to resolve the disagreement over the bill’s interpretation.

When Congress began debating the Accountability Act last spring, AFGE adamantly voiced its opposition, but it focused its arguments on the shortened time employees had to respond and appeal to a disciplinary action.

The union didn’t expect the department would make such deep changes to performance management, but now, AFGE has been forced to reconcile with other repercussions it didn’t anticipate.

“The agency’s position in implementing the provisions of the Accountability Act is that it is going to push the envelope as far as it can and implement things under the act, in our opinion, in the most harmful way and the broadest way it can,” Cathy McQuiston, AFGE’s deputy general counsel, said in an interview. “And it will only pull back from doing that if ordered to do so by some third party.”

AFGE’s master agreement with VA details the way both parties agreed to measure employee performance and hold workers accountable to those standards.

According to the AFGE agreement, VA supervisors must identify an employee’s performance deficiencies, and together with the employee and a local union representative, develop a performance improvement plan (PIP). The PIP should detail specific actions the employee should take to improve and include other provisions for further counseling or special training

PIPs should give the employee “a reasonable opportunity of at least 90 calendar days” to resolve specific, identified performance-related problems, the agreement said. During this time, employees and their supervisors should maintain constant communication.

But according to new performance management documents, which Federal News Radio obtained, the VA in many cases is no longer requiring the use of performance improvement plans to document employees’ deficiencies and set workers on a path to try to improve.

According to an August 2017 memo from VA Assistant Secretary for Human Resources and Administration Peter Shelby, supervisors can propose a performance-based disciplinary action if:

• An employee fails a critical element in his or her performance plan;
• There’s a “reasonable belief” that an employee’s “performance deficiency is so serious that it cannot be improved;”
• The deficiency poses a clear danger to the employee or others;
• The deficiency presents a risk to important services for veterans; or
• An employee repeatedly fails non-critical elements of his or her performance plan.

The Veterans Benefits Administration, according to a separate memo, has released its own guidance on employee performance reviews.

To be clear, the department isn’t overtly defying the law. In fact, one sentence in the new VA Accountability Act — “the procedures under chapter 43 of Title 5 shall not apply to a removal, demotion or suspension” — lets VA off the hook from the policies that once governed performance appraisals at the department and still exist at most other agencies.

VBA’s recent guidance doesn’t mention a performance improvement plan. And according to the memo, the agency will allow employees up to four pay periods, or two months, to correct performance deficiencies — less time than the 90-day PIP described in the AFGE agreement,

Yet VA contends that under the new accountability law, it doesn’t need to comply with the AFGE agreement.

“The VA Accountability and Whistleblower Protection Act specifically states that procedures involving removal, demotions or suspensions greater than 15 business days supersede any collective bargaining agreements that are inconsistent with the procedures outlined in the new law,” the department’s spokesman, Curt Cashour, said when asked about the discrepancies between current VA practice and the AFGE master agreement.

The accountability act does, in fact, note that its provisions “supersede any collective bargaining agreement to the extent that such agreement is inconsistent” with the new law.

“We just don’t think it’s a reasonable interpretation to take that one sentence and say that an entire article of our contract is invalidated,” McQuiston said.

AFGE is also prepared to bring this fight to the bargaining table. VA told AFGE in December it wanted to reopen and renegotiate its current collective bargaining agreement. The two parties are currently discussing the ground rules for negotiations, McQuiston said.

Cashour said the department will approach the topic of performance management to ensure that the new AFGE contract reflects current VA practices during upcoming collective bargaining negotiations.

David Bump, an AFGE vice president for VBA in Portland, Oregon, noted the Education Department’s recent decision to end  bargaining negotiations and implement its own terms — without the union’s agreement.

“Everybody here is fully expecting that to happen with the VA,” he said.

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