VA declares victory, but AFGE isn’t accepting latest impasse panel decision

After nearly a year of contentious of negotiations and disagreements, the Federal Service Impasses Panel has issued a highly-anticipated decision in the ongoing collective bargaining dispute between the Department of Veterans Affairs and the American Federation of Government Employees.

The panel, which is comprised of presidentially-appointed members, has issued similar decisions over the course of the last few years that, when implemented, have ultimately rewritten agency-union contracts.

“The Federal Service Impasses Panel is a huge win for veterans and taxpayers that will improve VA’s operations in a number of key ways,” Christina Noel, a department spokeswoman, said in a statement to Federal News Network.

From AFGE’s perspective, what happens next with the panel’s decision is still up in the air. VA and AFGE have been locked in heated negotiations and debates since last spring, when the department issued new bargaining proposals.

The union, which represents roughly 265,000 VA employees, believes the department can’t legally implement the terms of the FSIP decision because it has challenged the constitutionality of the impasse panel’s member appointment scheme. The lawsuit is still pending in federal district court.

The union has a second lawsuit challenging nine other articles of the AFGE-VA agreement, as well as 22 negotiability appeals and one unfair labor practice charge. AFGE has also filed a total of six national grievances against VA throughout the course of its bargaining with the department.

Citing one of its lawsuits, AFGE requested a stay of an impending FSIP decision earlier this year, but the panel denied it.

The union requested a stay of the panel’s decision citing one of its lawsuits, but FSIP denied it.

“It is entirely possible that the court will rule against the union on the merits or dismiss the lawsuit altogether,” the impasses panel said. “Staying this dispute based upon speculation, then, would not be a productive use of the panel’s resources.”

The impasses panel instead turned to 44 articles where the two parties couldn’t come to an agreement. It issued a decision on those articles last week.

Yet for AFGE, no new collective bargaining agreement is finalized until both parties agree to all articles in the contract.

The union also believes an incoming Biden administration could implement changes necessary to change the course of collective bargaining between AFGE and VA.

“Repealing the 2018 executive orders is certainly a start, but it would require more than that,” said Thomas Dargon, staff counsel for the AFGE National VA Council. “Ultimately we’d like the incoming administration to order the VA leadership to return to the table and negotiate in a good faith with the union.”

Impasse panel adopts EO changes, official time cuts

Ultimately, the panel opted to implement the vast majority of VA’s proposals, though it did modify some and adopted a handful of recommendations from AFGE.

Noel cited a few benefits with the recent decision, including more flexibility to reassign, detail and temporarily promote employees, which she said would give VA “added agility to stop the spread of COVID-19.” The decision also cuts red tape from the VA’s hiring process, she added.

AFGE, however, staunchly disagrees. The union has said VA hasn’t engaged with AFGE and heard out its concerns about personal protective equipment and other COVID-19 policies since the start of the pandemic. The department earlier this year gave AFGE an ultimatum: leave, or pay rent on the office space union officials are using.

“This decision shows members of the union what a world without a fair contract looks like,” Linda Ward-Smith, president of the AFGE local in Las Vegas, said in a statement. “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.”

In its decision, the panel set a seven-year term for the bargaining agreement between AFGE and VA. The union called for a three-year agreement, as has been customary in the past, but the department, citing the costs of collective bargaining negotiations, wanted a 10-year term.

VA is no longer responsible for printing and physically distributing the collective bargaining agreement to employees, which the department said would save about $2.5 million.

The impasses panel also adopted several changes that comport with the disciplinary and appeal procedures outlined in the VA Accountability and Whistleblower Protection Act, which Congress passed back in 2017. These changes will shorten the amount of time employees can respond to disciplinary and adverse actions, and it removes the requirement for managers to give employees multiple opportunities to improve performance.

The panel in many ways codified portions of the president’s 2018 executive orders on collective bargaining, official time and employees removals. VA has already cut — and eliminated in some cases — official time for union representatives on its own, but the panel’s decision writes these limitations into a seven-year contract.

According to the panel, VA employees in the AFGE bargaining unit can use a total of 176,296 hours for each fiscal year. It’s a stark contrast to fiscal 2016, when VA employees used 1,048,596 official time hours at a cost of more than $49 million, according to the department.

In making its case for the official time changes, VA said the union could afford the limitations. According to the department, AFGE took in more than $60 million from bargaining unit members in 2019.

“The union has more than enough resources to devote to representation without the need to turning to taxpayer-funded representatives,” according to VA’s proposal. “Indeed, in that same year, the union’s ‘parent organization’ AFL-CIO devoted $7,511,763 in union dues just to lobbying efforts alone. Given this, management’s proposal still provides for reasonable, necessary and in the public interest official time but places an onus on the union to carefully manage that time.”

The panel did, however, roll back the department’s policy on office space for employee unions. Though AFGE still can’t use VA office equipment, printers or vehicle, it will have access to 227,512 square feet of office space.

Veterans service organizations, for example, have offices within some VA facilities, and the panel suggested AFGE should receive a comparable amount of space.

On the issue of telework, the impasses panel also kept the majority of AFGE’s language on the topic. The union detailed the requirements employees must meet in order to be eligible for telework and described how workers could lose those privileges.

“The union’s proposal recognizes the importance of the continuation of the agency’s mission,” the panel wrote. “This is all the more critical in the light of the ongoing pandemic. Indeed, as can be seen throughout this document, the agency argues that several of its proposals are warranted due to expanded telework. The union’s language, then, fosters an environment where telework is encouraged but not sacrosanct.”

In general, the bargaining agreement doesn’t set specific limits on the number of days employees can and can’t telework.

The impasse panel’s decision also abolishes labor-management forums, VA-paid training for the two parties, and VA-paid travel for union representatives. Employees can instead request reimbursement for phone call expenses, the panel said.

“The union has done little in the way of proving the need for that travel,” the panel said. “As the Covid-19 pandemic has taught us all, face-to-face discussions, negotiations, etc. are not the only way to go about business. There is no reason why all the foregoing, and other related matters, cannot be conducted via video conference and telephone.”

In addition, the panel stripped previously-included language on employment opportunity rights and union-involvement in health and safety committees and training and career development.

It also added language clarifying the union couldn’t grieve employee cash awards, step increases or recruitment, retention and relocation incentives.

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