Although the Federal Service Impasses Panel scolded VA for its overbroad reliance on management rights to eviscerate its contract with a labor union, the panel still ruled mostly in the department’s favor.
The Federal Service Impasses Panel this month issued its long-awaited decision in the acrimonious negotiations impasse between the Veterans Affairs Department and the American Federation of Government Employees, siding with management on most matters.
Although the Nov. 5 decision marks a win for the department, it may not survive the coming weeks and months. The impasses panel’s proceedings in this case are the subject of a federal lawsuit challenging the constitutionality of its members’ appointments, and President-elect Biden is widely expected to allow federal employee unions to renegotiate any collective bargaining agreements implemented during the Trump administration.
Before getting into the meat of the more than 40 contract articles in dispute, the panel scolded management for an overreliance on alleged statutory rights as the basis for deleting entire sections of the agreement. AFGE has filed 20 appeals with the Federal Labor Relations Authority challenging the department’s assertion that such topics are non-negotiable.
“More troublingly, many of the agency’s management rights and legal arguments are not fulsome ones,” the panel wrote. “Many of these arguments broadly allege that entire union articles, or major portions of them, are contrary to various rights and/or laws. But those arguments rarely identify the specific language challenged or the specific legal theories involved . . . Indeed, in a recent appeal decision ruling against an agency, the FLRA excoriated that agency for failing to provide any arguments to support its claims of non-negotiability.”
Despite these misgivings, the panel declined to remand these topics back to the parties for further negotiations, and in most cases it ruled at least partially in favor of management anyway.
The panel severely limited union officials’ ability to use official time, in line with a 2018 executive order targeting the practice, stripped a number of procedural protections for employees subject to disciplinary actions, removed a variety of personnel practices from grievance proceedings, and made it harder for union officials to represent employees during internal investigations.
It also removed contract language providing guidance on employees’ Equal Employment Opportunity Commission rights and prohibits the use of official time for EEO matters. And it weakened language in the article devoted to workplace health and safety, which the union said shifts the onus from management to individual employees to report potential safety issues.
One area where AFGE scored a win was on telework. The department sought for management to have “sole discretion” to change its telework policies and suggested that the panel should remove the contract article altogether, a move that the impasses panel did not support.
“The union’s language seeks to create a balance between the needs of a properly staffed workforce and the desire of employees to participate in telework,” the panel wrote. “Importantly, the union’s language does not appear to treat telework as a ‘right.’ . . . This is all the more critical in the light of the ongoing pandemic. Indeed, as can be seen throughout the 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.”
Officials at AFGE contend that the VA may not legally implement the panel-imposed contract, due to the many negotiability appeals pending before the FLRA and another federal lawsuit challenging the legality of nine articles of the contract.
“The AFGE National Veterans Affairs Council is disappointed with the panel’s decision on the union’s master collective bargaining agreement, but not entirely surprised that a Trump-appointed panel would rule the way they did,” said Alma Lee, president of AFGE’s council of VA locals. “Since he was first appointed to his post, VA Secretary [Robert] Wilkie has sabotaged and worked against the union so that the panel’s decision on our contract reflects his anti-union and racist tendencies.”
VA leadership has consistently denied accusations of systemic racism within the department, despite surveys indicating most employees have experienced or witnessed racist actions against employees and veterans and data that found that white employees were twice as likely to be selected for management positions as Black applicants.
The contract as imposed by the impasses panel may not be long for this world. The VA, AFGE and the panel have been awaiting a decision since July in a federal lawsuit that argues that panel members should be subject to Senate confirmation. And the Biden campaign promised to roll back the Trump administration’s policies that sought to weaken the role of labor unions at federal agencies.
One proposal to “reinvigorate” the federal workforce, devised by a cadre of fellows working on presidential transition issues for the National Academy of Public Administration, would instruct agencies to reopen negotiations on any collective bargaining agreement reached in the wake of Trump’s workforce executive orders if requested by a union.