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Enormous VA Union Contract Moves Towards Uncertain Conclusion Under New Biden Administration

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Unionized workers at the U.S. Department of Veterans Affairs have spent the past four years in a grinding workplace battle with a Trump administration existentially hostile towards unions representing federal government workers. Now, as negotiations draw to a close on their new contract?‚ÄĒ?one of the biggest union contracts in America?‚ÄĒ?the union says that the damaging hangover of the Trump years is still very much a reality. 

The American Federation of Government Employees (AFGE) represents more than 265,000 VA workers, meaning their contract has widespread impact on government workers across the nation. In 2018, Donald Trump signed a series of executive orders that drastically restricted the collective bargaining rights and power of the union, even taking away the union‚Äôs office space in VA buildings. Joe Biden rolled back those orders shortly after taking office. Yet the change of administrations (a top priority for AFGE, and a major victory for them) may not be enough to guarantee that the hostile contract negotiations that have already been underway for years will come out as the union hopes. 

In early January, members voted to reject a proposed contract that they say was insufficient and one-sided. After that, a 30-day mediation period began. That mediation period expires this week. Because of some delays on the VA‚Äôs side in appointing a negotiator, the union is hoping for an extension, though it is unclear what a final timetable will be. What is certain is that after a process that has been marked by lawsuits, intransigence, political battles, and charges of bad faith, there are still significant outstanding issues to be settled. 

‚ÄúWe‚Äôve alleged from the beginning that the VA‚Äôs never really come to the table with a sincere desire to reach agreement. There‚Äôs been a lot of bad faith behavior,‚ÄĚ says Thomas Dargon, AFGE‚Äôs acting supervisory attorney working on the National Veterans Affairs Council (NVAC). ?‚ÄúWhat we‚Äôve been asking for all along is for them to come to the table seriously.‚ÄĚ 

The fact that the bulk of negotiations were conducted under a different and much more hostile administration creates some murky possibilities for the contract‚Äôs future. Dargon says it is possible that the contract will go back to the Federal Services Impasse Panel, a government board meant to resolve such disputes?‚ÄĒ?and earlier this week Biden summarily fired the board‚Äôs ten members, presumably setting the stage for a more labor-friendly board soon. There is also the matter of Denis McDonough, Biden‚Äôs nominee for VA secretary, who will certainly be more willing to work with the union, but whose confirmation date is still up in the air. AFGE is hoping that the transition process will happen in time to meaningfully improve the current contract. 

‚ÄúSurely new leadership could come in and set the right tone and work with the union as a partner,‚ÄĚ says Dargon. Until the new contract is settled, the last contract, signed in 2011, remains in effect. 

The VA did not respond to questions about whether its bargaining position has changed since Biden took office. (Last September, the VA gave a contemptuous statement saying that AFGE ?‚Äúopposed attempts to make the VA work better for Veterans and their families.‚ÄĚ) But on the ground, change for VA workers is slow. Linda Ward-Smith, a registered nurse at the VA and the president of AFGE Local 1224 in Las Vegas, says that the crisis of the pandemic only strengthened her management‚Äôs determination to act unilaterally, without treating the union as a full partner. She says that she‚Äôs still having trouble getting the VA to provide a workplace safety plan as it moves employees back into the office, and that the VA has not provided enough Covid testing for its workers, restricting it to those who have symptoms. More than 120 VA employees have died of Covid, according to AFGE. Such health risks highlight one of the union‚Äôs biggest outstanding issues in the current contract negotiations: the fact that the VA is seeking to do away with large sections of the contract that provide occupational health rights to workers. 

Ward-Smith says that, despite the fact Biden rolled back Trump‚Äôs executive orders affecting VA workers, her bosses have yet to implement the changes, saying they need to wait for further ?‚Äúguidance‚ÄĚ before moving forward. ?‚ÄúWe‚Äôve all still been in limbo. It‚Äôs almost like those executive orders don‚Äôt exist,‚ÄĚ she says. 

Nevertheless, Trump‚Äôs defeat has provided a¬†ray of hope. For the past several years, the VA‚Äôs workers have been losing faith in their union‚Äôs ability to get anything meaningful accomplished for them, watching as its power was cut off by unfriendly leadership and aggressive anti-labor rulemaking.¬†?‚ÄúEmployees lose hope. It‚Äôs insane the treatment our employees were getting, because they felt they had no say-so,‚ÄĚ Ward-Smith says.¬†?‚ÄúI‚Äôm excited I¬†can get back to doing the business I¬†was put in this position to¬†do.‚ÄĚ

This blog originally appeared at In These Times on February 5, 2021. Reprinted with permission.

About the Author: Hamilton Nolan is a labor reporter for In These Times. He has spent the past decade writing about labor and politics for Gawker, Splinter, The Guardian, and elsewhere. 

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Trump Is Waging War on the VA’s Union, and Workers Are Living in Fear

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As Don¬≠ald Trump cam¬≠paigns for reelec¬≠tion by declar¬≠ing his love for the mil¬≠i¬≠tary and its vet¬≠er¬≠ans, the union that rep¬≠re¬≠sents more than a quar¬≠ter of a mil¬≠lion Depart¬≠ment of Vet¬≠er¬≠ans Affairs (VA) employ¬≠ees says that the Trump admin¬≠is¬≠tra¬≠tion has cre¬≠at¬≠ed an atmos¬≠phere of fear and retal¬≠i¬≠a¬≠tion among the peo¬≠ple tasked with tak¬≠ing care of America‚Äôs veterans.

More than¬†250,000¬†VA work¬≠ers are rep¬≠re¬≠sent¬≠ed by the Amer¬≠i¬≠can Fed¬≠er¬≠a¬≠tion of Gov¬≠ern¬≠ment Employ¬≠ees (AFGE), and the union says that the VA‚Äôs con¬≠tract is the largest sin¬≠gle pub¬≠lic sec¬≠tor union con¬≠tract in the coun¬≠try. Nego¬≠ti¬≠a¬≠tions for a¬†new con¬≠tract are cur¬≠rent¬≠ly mired before a¬†‚ÄúFed¬≠er¬≠al Ser¬≠vices Impasse Pan¬≠el,‚ÄĚ which is¬†tasked¬†with resolv¬≠ing bar¬≠gain¬≠ing dis¬≠putes. (AFGE also filed a¬†law¬≠suit¬†against the pan¬≠el itself, charg¬≠ing that its anti-union pres¬≠i¬≠den¬≠tial appointees were improp¬≠er¬≠ly installed. Regard¬≠less, the union expects the pan¬≠el to ren¬≠der a¬†deci¬≠sion on its con¬≠tract in a¬†mat¬≠ter of weeks). The bureau¬≠crat¬≠ic maneu¬≠ver¬≠ings sur¬≠round¬≠ing the con¬≠tract are just the lat¬≠est man¬≠i¬≠fes¬≠ta¬≠tion of a¬†years-long cru¬≠sade by the Trump admin¬≠is¬≠tra¬≠tion to crush fed¬≠er¬≠al unions‚ÄĒone that VA union lead¬≠ers say is push¬≠ing their mem¬≠bers to the break¬≠ing¬†point.¬†

In These Times¬†spoke to the pres¬≠i¬≠dents of three AFGE union locals, who rep¬≠re¬≠sent thou¬≠sands of VA mem¬≠bers across the coun¬≠try. They paint¬≠ed a¬†pic¬≠ture of an agency in which employ¬≠ees live in fear of retal¬≠i¬≠a¬≠tion from man¬≠age¬≠ment if they speak out about injus¬≠tice in the work¬≠place. And they say that the effects of a¬†set of¬†2018¬†Trump admin¬≠is¬≠tra¬≠tion¬†exec¬≠u¬≠tive orders¬†that dras¬≠ti¬≠cal¬≠ly restrict¬≠ed the union‚Äôs rights‚ÄĒin par¬≠tic¬≠u¬≠lar by slash¬≠ing the¬†‚Äúoffi¬≠cial time‚ÄĚ pro¬≠vi¬≠sion giv¬≠ing access to union rep¬≠re¬≠sen¬≠ta¬≠tives at work, and by kick¬≠ing the unions out of their long¬≠time office space inside VA build¬≠ings‚ÄĒhave weak¬≠ened the VA itself and made work¬≠ers‚Äô lives hard¬≠er, even¬†jeop¬≠ar¬≠diz¬≠ing safe¬≠ty¬†in the midst of a¬†pan¬≠dem¬≠ic. The real¬≠i¬≠ty for VA employ¬≠ees is quite dif¬≠fer¬≠ent from Trump‚Äôs rhetoric about valu¬≠ing vet¬≠er¬≠ans above¬†all.¬†

Keena Smith, the pres¬≠i¬≠dent of AFGE Local¬†2192¬†in St. Louis, says that the Trump administration‚Äôs orders have evis¬≠cer¬≠at¬≠ed the union‚Äôs last con¬≠tract, strip¬≠ping out health and safe¬≠ty pro¬≠vi¬≠sions and whistle¬≠blow¬≠er pro¬≠tec¬≠tions, and severe¬≠ly cut¬≠ting back employ¬≠ees‚Äô rights to fight back against dis¬≠ci¬≠pli¬≠nary actions. She describes a¬†work¬≠place in which VA employ¬≠ees who process claims are¬†‚Äúter¬≠ri¬≠fied‚ÄĚ that they will be fired for fail¬≠ing to meet unre¬≠al¬≠is¬≠tic¬†quotas.¬†

‚ÄúIt‚Äôs def¬≠i¬≠nite¬≠ly changed how we work and how we‚Äôre able to ser¬≠vice our employ¬≠ees. Over¬†80% of the employ¬≠ees [here] are vet¬≠er¬≠ans them¬≠selves,‚ÄĚ says Smith, who is also a¬†U.S. mil¬≠i¬≠tary vet¬≠er¬≠an.¬†‚ÄúThese attacks become per¬≠son¬≠al‚Ķ this is the thanks that you give those vet¬≠er¬≠ans who have already done their time. You put on fear tac¬≠tics, and stan¬≠dards that are almost impos¬≠si¬≠ble to¬†make.‚Ä̬†

Smith seems gen¬≠uine¬≠ly stag¬≠gered by the con¬≠tempt with which the admin¬≠is¬≠tra¬≠tion has treat¬≠ed her union mem¬≠bers, who process ben¬≠e¬≠fit and com¬≠pen¬≠sa¬≠tion claims for vet¬≠er¬≠ans.¬†‚ÄúWe lit¬≠er¬≠al¬≠ly got evic¬≠tion notices‚ÄĚ for union offices in VA facil¬≠i¬≠ties,‚ÄĚ she says, still incred¬≠u¬≠lous.¬†‚ÄúThey said,¬†‚ÄėYou have to get out or pay rent.‚Äô¬†What?‚Ä̬†

For the past three years, Lin¬≠da Ward-Smith has led AFGE Local¬†1224¬†in Las Vegas, rep¬≠re¬≠sent¬≠ing about¬†3,000¬†work¬≠ers at a¬†VA hos¬≠pi¬≠tal.¬†‚ÄúPri¬≠or to the Trump admin¬≠is¬≠tra¬≠tion tak¬≠ing over, I¬†can attest to you that man¬≠age¬≠ment and labor had cor¬≠dial rela¬≠tion¬≠ships,‚ÄĚ includ¬≠ing week¬≠ly labor-man¬≠age¬≠ment meet¬≠ings to dis¬≠cuss work¬≠ing con¬≠di¬≠tions, she says. That has all changed since Trump‚Äôs exec¬≠u¬≠tive orders. Now, she says, man¬≠age¬≠ment is so unre¬≠spon¬≠sive that it has left many of the union‚Äôs mem¬≠bers dispir¬≠it¬≠ed and ques¬≠tion¬≠ing the point of the union‚Äôs¬†existence.¬†

‚ÄúWe‚Äôd hear rumors like,¬†‚Äėthe union isn‚Äôt here any more, there‚Äôs nobody for us.‚Äô Espe¬≠cial¬≠ly when we got kicked out of the office and our equip¬≠ment got tak¬≠en away,‚ÄĚ says Ward-Smith. Though she still tries to meet with man¬≠age¬≠ment as she can,¬†‚ÄúI feel like I‚Äôm at their mer¬≠cy. I¬†have to some¬≠times bite my tongue and do things on behalf of the mem¬≠bers. But now the man¬≠agers feel empow¬≠ered as if they‚Äôre¬†Superman.‚Ä̬†

Christi¬≠na No√ęl, a¬†press sec¬≠re¬≠tary for the VA, says of the ongo¬≠ing con¬≠tract bat¬≠tle,¬†‚ÄúAFGE has con¬≠sis¬≠tent¬≠ly fought for the sta¬≠tus quo and opposed attempts to make the VA work bet¬≠ter for Vet¬≠er¬≠ans and their fam¬≠i¬≠lies. It‚Äôs no sur¬≠prise that AFGE has tak¬≠en the same approach with its refusal to accept com¬≠mon¬≠sense improve¬≠ments to its col¬≠lec¬≠tive bar¬≠gain¬≠ing¬†agreement.‚ÄĚ

For Bar¬≠bara Whit¬≠son Casano¬≠va, who has led AFGE Local¬†2054¬†in Arkansas for two decades, deal¬≠ing with the Trump admin¬≠is¬≠tra¬≠tion¬†‚Äúwas like wak¬≠ing up in a¬†for¬≠eign coun¬≠try.‚ÄĚ As the VA has become almost com¬≠plete¬≠ly unwill¬≠ing to work with the union unless it is legal¬≠ly required to, a¬†con¬≠se¬≠quence has been that the union is oblig¬≠at¬≠ed to use the legal arbi¬≠tra¬≠tion process to address minor dis¬≠putes that in the past could have been solved with good faith dis¬≠cus¬≠sions. Casano¬≠va says that before Trump, her local might have only filed one arbi¬≠tra¬≠tion case per year; now, it has¬†17¬†arbi¬≠tra¬≠tion cas¬≠es in process, each one cost¬≠ing the gov¬≠ern¬≠ment itself thou¬≠sands of dol¬≠lars to¬†litigate.¬†

‚ÄúWe feel like our Com¬≠man¬≠der in Chief has waged war on his troops,‚ÄĚ she says.¬†‚ÄúThe staff is burned out and liv¬≠ing in¬†fear.‚Ä̬†

All gov¬≠ern¬≠ment employ¬≠ees now have¬†‚Äúright to work‚ÄĚ sta¬≠tus, mean¬≠ing that the union is oblig¬≠at¬≠ed to rep¬≠re¬≠sent them, but can¬≠not make them pay dues if they don‚Äôt want to. Nor do the VA‚Äôs work¬≠ers have the right to strike, by law (a right that¬†not even pub¬≠lic sec¬≠tor union lead¬≠ers¬†are will¬≠ing to spend the polit¬≠i¬≠cal cap¬≠i¬≠tal to fight for). Those legal restric¬≠tions, com¬≠bined with the Trump administration‚Äôs bat¬≠tle against labor rights of fed¬≠er¬≠al work¬≠ers, have left AFGE strug¬≠gling for ways to assert its pow¬≠er.¬†‚ÄúIt‚Äôs a¬†bat¬≠tle not to give up and feel total¬≠ly hope¬≠less,‚ÄĚ Casano¬≠va¬†admits.¬†

The VA‚Äôs union holds infor¬≠ma¬≠tion¬≠al pick¬≠ets and ral¬≠lies to pub¬≠li¬≠cize its plight, and is enmeshed in law¬≠suits against the gov¬≠ern¬≠ment, but it is unwill¬≠ing to vio¬≠late the law with more aggres¬≠sive labor actions. Boxed in by reg¬≠u¬≠la¬≠tions designed specif¬≠i¬≠cal¬≠ly to lim¬≠it its pow¬≠er, the union lead¬≠ers inside the VA say that the bal¬≠lot box is their only promis¬≠ing route back to nor¬≠mal¬≠cy. AFGE has endorsed Joe Biden, who has said he will roll back Trump‚Äôs exec¬≠u¬≠tive orders. Ward-Smith believes that every¬≠thing hangs in the bal¬≠ance on Elec¬≠tion Day. 

‚ÄúIf we con¬≠tin¬≠ue the way we are,‚ÄĚ she says,¬†‚Äúthe union will not be in¬†existence.‚ÄĚ

This blog originally appeared at In These Times on September 24, 2020. Reprinted with permission.

About the Author: Hamilton Nolan is a labor reporter for In These Times. He has spent the past decade writ­ing about labor and pol­i­tics for Gawk­er, Splin­ter, The Guardian, and else­where. You can reach him at Hamilton@InTheseTimes.com.

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News from Congress: VA Employees’ Civil Service Protections Slashed

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On June 23, 2017, the President signed into law Pub.L. 115-41.  The new statute reduces civil service protections for employees of the Department of Veterans Affairs (DVA).

Pub.L. 115-41 renews the push to cut back VA civil service protections, after the prior attempt under the last Administration saw adverse actions reversed at the Merit Systems Protection Board (MSPB) and portions of the statute struck down as unconstitutional.

Pub.L. 115-41 is more expansive than the prior statute.  Instead of just applying to Senior Executive Service (SES) employees at DVA, the statute applies to all DVA civil service employees, but different rules apply to different categories of employees.

SES employees and certain other individuals in executive or administrative positions can be removed, suspended, reprimanded, involuntarily reassigned or demoted by the Secretary, with notice and opportunity to respond to the proposal limited to 7 business days and the overall period from proposal to decision limited to 15 business days.  Affected DVA employees lose MSPB appeal rights.  Instead, adverse actions taken under this mechanism may solely be grieved to a new DVA internal grievance process, with a final decision due within 21 days.  Final decisions by DVA are then subject to judicial review.

Other DVA employees also suffer cuts to their civil service protections.¬† Under Pub.L. 115-41, affected employees may receive proposed adverse actions from the Secretary, with notice and opportunity to respond to the proposal limited to 7 business days and the overall period from proposal to decision limited to 15 business days.¬† MSPB appeal rights are retained, but the appeal deadline is cut to 10 business days.¬† The MSPB administrative judge¬†must¬†issue a final decision within 180 days.¬† The VA’s burden of proof to support its charges is cut to mere substantial evidence.¬† The MSPB may not mitigate to a lesser penalty (it must uphold the penalty or reverse entirely).

Pub.L. 115-41 moves into statute the DVA whistleblower office created by Executive Order 13,793.  The Secretary cannot remove, demote or suspend non-executive whistleblowers with active cases before the Office of Special Counsel (OSC) or the DVA whistleblower office without permission of the relevant whistleblower office.

Pub.L. 115-41 also allows the Secretary to disallow retirement service credit for DVA employees who are convicted of felonies.  Pub.L. 115-41 also allows the Secretary to claw back bonuses, awards and relocation expenses paid to DVA employees under certain circumstances.

This blog was originally published by The Attorneys of Passman & Kaplan, PC on July 7, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

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