FLRA again sides with union on decision reinstating certain VA employees

The Department of Veterans Affairs must reinstate certain employees who were fired, demoted or suspended without a chance to improve their performance, according to a decision the Federal Labor Relations Authority upheld for a second time last week.

The FLRA denied VA a motion to reconsider the decision it issued last November, which found VA had violated its 2011 collective bargaining agreement with the American Federation of Government Employees when it failed to provide veterans service representatives at the Veterans Benefits Administration 90 days to improve their performance before firing, demoting or suspending them.

The authority said it agreed with an independent arbitrator, who ruled two years ago that VA had violated its contract when it imposed shorter performance improvement periods on its employees.

In issuing its award, the arbitrator called on VA to rescind any adverse actions and reinstate any employees who had been fired, demoted or suspended without a 90-day performance improvement period — with back pay, restored leave and other benefits.

The decision from both the FLRA and the arbitrator stems from a grievance AFGE filed back in 2017 over VA’s implementation of the Accountability and Whistleblower Protection Act, a signature legislative achievement for the Trump administration.

The union argued VA had implemented portions of the law in a manner that was inconsistent with its collective bargaining agreement. The department, AFGE said, should have bargained with the union over the implementation of the performance management changes.

Under AFGE’s 2011 contract, VA is supposed to give employees at least 90 days to improve their performance before their supervisors can begin the disciplinary process.

But in implementing the VA Accountability Act, the Veterans Benefits Administration informed its employees they would have 30 days to make needed changes to their performance. VBA employees had previously told Federal News Network the new performance expectations made them fear for their jobs.

An independent arbitrator ruled in favor of the union. VA filed exceptions to the arbitrator’s decision in late 2018, arguing the Accountability Act superseded the AFGE contract.

The FLRA then reviewed and upheld the decision back in November. VA filed a motion for reconsideration later that month, and the FLRA, again, denied the department’s latest motion last week.

Parties that show “extraordinary circumstances” can ask the FLRA to reconsider one of its decisions, but two members on the three-person panel said VA failed to make a compelling case.

“The authority has repeatedly held that a party seeking reconsideration bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action,” James Abbott, an FLRA member, wrote in the authority’s June 25 decision. “As relevant here, the authority has held that errors in its legal conclusions may justify granting reconsideration. However, mere disagreement with or attempts to relitigate conclusions reached by the authority are insufficient to establish extraordinary circumstances.”

Colleen Duffy Kiko, who served as FLRA chairman during the Trump administration, disagreed.

VA spokesman Randy Noller said the department is reviewing the authority’s decision to determine its next steps.

AFGE, however, believes VA should have complied with the FLRA’s original decision — that is, begun the process of reinstating employees who were improperly fired, demoted or suspended and issuing back pay — last November.

The union filed an unfair labor practice complaint because the department failed to comply with the FLRA’s original decision, Ibidun Roberts, an independent attorney who’s working on behalf of AFGE’s National VA Council, said in an interview.

She said at least 26 employees were removed without a chance for a performance improvement period between the time of the FLRA’s original decision last fall and today.

The union also asked VA for a list of disciplinary actions that it had taken against employees using the Accountability Act. Roberts said AFGE wanted to compile its own list of employees who should be reinstated and paid back wages in accordance with the authority’s decision.

VA instead provided its own tally of 426 people who could be reinstated. But Roberts said AFGE isn’t sure VA’s list is correct. The union filed a grievance with the department over their disagreements on sharing information, she said.

VA employees who believe they were improperly fired, demoted or suspended without a 90-day performance improvement period should ensure they’re a member of the AFGE bargaining unit before contacting their local union, Roberts said.

“At this point there isn’t much we can do until VA starts reinstating people,” she said.

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