An arbitrator has delivered a blow to the Veterans Affairs Department and its new authorities in the VA Accountability and Whistleblower Protection Act.

The arbitrator, who is listed on the Federal Mediation and Conciliation Service’s roster, says VA has violated the terms of its contract with the American Federation of Government Employees (AFGE) in implementing certain provisions of the accountability act.

AFGE filed a grievance last September. The union, 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.

As Federal News Radio has previously reported, VA issued several updates to performance guidance after Congress passed the accountability act back in June 2017. That guidance, though it ultimately went through several iterations, essentially eliminated the use of a standard, formalized performance improvement period (PIP) for certain VA employees to address their managers’ concerns.

Technically, the arbitrator’s decision isn’t final yet. VA can choose to appeal the decision with the Federal Labor Relations Authority within 30 days. But if VA stays silent on the matter for the next month, the arbitrator’s decision stands as final.

In that case, VA must begin to take steps to comply with the terms in its collective bargaining agreement with AFGE, according to the arbitrator.

In addition, the agency must “rescind any adverse action taken against bargaining unit employees for unacceptable performance who did not first receive a PIP complying with the provisions [of the contract and] as a result, reinstate and/or make whole any such bargaining unit employee, including but not limited to back pay, restored leave and other benefits,” the arbitrator wrote in the decision.

“We came to work at the VA because we believe in the mission of caring for the men and women who served this country,” AFGE National Veterans Affairs Council President Alma Lee said in a statement. “But instead of getting support for our work, we’ve been dealing with managers moving the goalposts and using these bogus standards to fire dedicated public servants. It’s disgraceful. And I’m so glad the arbitrator ruled on the side of reason, allowing us to get back to work serving those who have borne the battle.”

In a statement to Federal News Radio, VA spokesman Curt Cashour said the department will review the decision and determine an appropriate response.

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.

VA’s current performance management guidance did not give a specific timeline by which employees are expected to improve their performance.

Instead of placing employees on a 90-day Performance Improvement Plan (PIP),  supervisors can fire or demote an employee 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.

Several VA employees, especially those at the Veterans Benefits Administration, have previously told Federal News Radio they felt like one mistake at work could cost them their jobs.

The VA accountability act and its implementation has earned attention from some members of Congress.

Democrats on the Senate VA Committee had expressed similar concerns with VA’s implementation of the new authority and its performance management guidance, citing instances where managers attempted to remove employees for missing a deadline or moving slowly after a workplace injury.

The House VA Committee heard from the department last month, which insisted it wasn’t using the new accountability legislation to to disproportionately fire lower-ranking employees over senior managers and executives.

The VA inspector general is also reviewing the department’s implementation of the accountability act.

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