The Veterans Affairs Department claims it doesn't need to negotiate with labor leaders until the pandemic is over.
A union representing employees at the Veterans Affairs Department last week filed a national grievance against the department, alleging that its leadership is using the coronavirus pandemic as cover to illegally refuse to abide by its obligation to negotiate policy changes.
Officials with the American Federation of Government Employees' National Veterans Affairs Council said the VA has consistently rejected all demands to bargain since March, when President Trump declared a national emergency due to the spread of COVID-19. Although the emergency declaration allows agencies to make changes to working conditions without first negotiating their impact with labor groups, federal labor law and Federal Labor Relations Authority caselaw still requires management to engage in bargaining post-implementation.
Ibidun Roberts, supervisory attorney for the union, said officials have been pushing VA to engage in post-implementation bargaining since the start of the pandemic and decided to file a national grievance after VA Secretary Robert Wilkie issued a memo suggesting the department was not required to engage in any bargaining until the conclusion of the national emergency.
"The law gives them the right to act, but some of the actions taken are not affected by the emergency," Roberts said. "As slow as the VA was to take action, we could have already hammered out agreements about how employees are affected [by these changes]. We wasted a lot of time without coming up with consistent policies to keep employees safe or address the pandemic in ways to keep employees safe."
In a June 2 memo to department leadership, Wilkie formalized the department's position that it does not need to bargain with the union until the end of the pandemic.
"This is a dynamic and unprecedented time for the department that may extend beyond the expiration of the national emergency declaration, depending on the continued impact of this pandemic on department operations," Wilkie wrote. "I am confident our unions understand the gravity of this situation, the impact it is having on the department and the need for managers and supervisors to act without delay to ensure the safety of our veteran patients, staff and the public from further spread of the disease. The Department will meet its bargaining obligations at the conclusion of this emergency situation."
In a statement to Government Executive, VA spokeswoman Christina Noel said that the department "continues to meet all bargaining obligations set forth by law."
But the law cited by VA, as well as caselaw cited by AFGE, appears to refute that claim. While managers at federal agencies may "take whatever actions may be necessary" to fulfill their mission during national emergencies, the law states that "nothing . . . shall preclude any agency from negotiating" the procedures for management actions or "arrangements" for adversely affected employees.
The FLRA ruled in 1999 that the existence of an emergency does not exempt agencies from their obligation to negotiate over actions they've taken post-implementation. And in 1987, the body ruled that only proposals directly related to emergency actions are exempt from pre-implementation bargaining.
VA also appears to be an outlier among federal agencies. In March, officials with U.S. Citizenship and Immigration Services sought to suspend negotiations on workplace policy changes until the end of the pandemic. But a spokesperson for that agency stressed to Government Executive at the time that the agency's proposal would only move forward with the union's assent.
Roberts noted that under the VA's interpretation of the law, the department is not required to bargain over actions it takes until after those actions are reverted to the pre-pandemic status quo.
"Somewhere, they got this interpretation that 'post-implementation' means post-pandemic," Roberts said. "It's a perversion of the law . . . The directors are not themselves taking care of patients; they're just going to meetings. And going to meetings is what they would be doing if they were dealing with the union."