VA eliminates official time for some 104,000 employees

The Veterans Affairs Department is eliminating official time for some 104,000 employees, the agency announced Thursday.

All VA employees under Title 38 will no longer be able to use “taxpayer-funded union time,” as the department put it, starting Nov. 15. The move specifically applies to 104,000 medical professionals, including physicians, dentists, nurses, physician assistants and others.

The decision to eliminate official time is part of the department’s efforts to renegotiate its collective bargaining agreements with the American Federation of Government Employees, National Federation of Federal Employees, National Association of Government Employees and the National Nurses Council, VA said.

“It’s common sense,” Jacquelyn Hayes-Byrd, VA acting assistant secretary for human resources and administration, said Thursday in a statement. “Allowing health care workers to do taxpayer-funded union work instead of serving veterans impacts patient care negatively. President [Donald] Trump has made it clear — VA employees should always put veterans first. And when we hire medical professionals to take care of veterans, that’s what they should do at all times. No excuses, no exceptions.”

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Eliminating official time contradicts VA’s current agreements with AFGE and others. In notifying AFGE, for example, the department cited Federal Labor Relations Authority precedent as the basis for its decision.

VA’s existing contract with AFGE, the department said, is in “direct conflict with the collective bargaining exclusions found in [Title 38]. [It] states that collective bargaining on behalf of Title 38 employees ‘may not cover, or have any applicability to,’ any matter that concerns: direct patient care, clinical competence, peer review or the establishment, determination or adjustment of employee compensation,'” according to a Nov. 7 memo from Hayes-Byrd to Alma Lee, president of the AFGE/National Veterans Affairs Council.

Simply put, VA has argued that employees’ use of official time has direct, negative implications on veteran patient care.

AFGE, however, vehemently disagreed.

“Make no mistake, this is an attempt to silence the voices of VA employees at a time when such oversight is more critical than ever,” AFGE National President J. David Cox said in a statement. “Clinicians use official time to raise concerns about patient safety, access to care, and staffing shortages. Silencing their voices endangers our veterans.”

According to available data, VA traditionally has been one of the heavier users of official time. As the second-largest federal agency, VA employees spent 1,048,569 hours on official time in fiscal 2016, which cost about $49 million.

Some members of Congress have expressed their frustration with official time across government, but they’ve have been particularly outraged with its use at the VA. A few lawmakers have introduced legislation to limit official time at VA specifically and across government, but no bill has passed Congress.

Federal employees spent a total of 3,611,112 hours on official time in fiscal 2016, according to the most recent report from the Office of Personnel Management. This data, however, is likely unreliable, because agencies haven’t been required to consistently track it. Both the Government Accountability Office and the House Oversight and Government Reform Committee have made separate attempts to more accurately count the cost and scope of official time across government but have run into roadblocks.

But VA’s latest decision to eliminate official time potentially raises further questions — and sets up further legal battles — over the president’s executive orders on official time and collective bargaining.

“This just isn’t a dangerous policy, this is breaking the law,” Cox said.

A federal district court invalidated key provisions of those orders back in August, but the Trump administration is appealing the decision. A federal district judge invalidated the president’s attempts to set specific limits on official time, arguing that the provisions ultimately violated the intent of the Civil Service Reform Act and Federal Labor-Management Relations Statute and hindered agencies’ ability to bargain in good faith.

AFGE has already challenged the department’s implementation of the president’s EOs. The union said VA’s attempts to comply with the president’s limits on official time were “chaotic” and inconsistent at various medical centers and regional offices across the country.

Tensions were high between VA and its unions even before the president’s EOs sparked a series of lawsuits from AFGE and others.

AFGE filed a grievance over the department’s implementation of the VA Accountability and Whistleblower Protection Act back in September 2017.

An independent arbitrator ultimately ruled in favor of the union and instructed VA to rehire any employees that had been terminated without a performance improvement plan (PIP). VA and AFGE had previously negotiated a specific timeline for employee PIPs.

VA, however, appealed the arbitrator’s decision to the Federal Labor Relations Authority.