An arbitration decision this week will force VA to rehire AFGE union employees fired from employment where the agency ignored its obligation to use performance improvement plans (PIPs).

For the past year, VA erroneously asserted that the Accountability Act statute 38 USC § 714 voided portions of the AFGE collective bargaining agreement that it did not void. That agreement mandates use of PIPs to provide covered employees an opportunity to improve performance for at least 90 days prior to termination. It also mandates certain other due process requirements.

Since August, VA attorneys basically engaged in legerdemain falsely asserting the statue also voided due process requirements embodied in 5 USC § 4303. Many in senior leadership have totally run afoul of the law and common sense when retaliating against whistleblowers and disabled veterans employed by the agency.

Thursday, an arbitrator from the Federal Mediation and Conciliation Service (FMCS) concluded VA violated its contract with AFGE and that the contract was not voided by 38 USC § 714. Apparently, the agency hoped no one would question their hubris.

DOWNLOAD: FMCS Decision PIPs Failure

It is very clear when you look at the offending statute that it relates to “procedure” under § 714(c). Those procedures in question merely limit the window of time of a removal action from 30 days to seven days as well as providing the maximum amount of time to render a decision on the removal.

However, shoddy legal analysis from the agency concluded it voided the substantive due process requirements of 5 USC § 4303 and the AFGE Master Agreement.

As a consequence of the error, most if not all the removal actions since August 2017 did not comport with due process notice requirements because they filed to inform the employee of § 4303 requirements and failed to follow Master Agreement per-removal criteria including use of PIPs.

Should the decision not be appealed, VA will be required to hire back all employees erroneously terminated and pay backpay.

In addition, the agency must “rescind any adverse action taken against bargaining unit employees for unacceptable performance who did not first receive a PIP complying with the provisions [of the contract and] as a result, reinstate and/or make whole any such bargaining unit employee, including but not limited to back pay, restored leave and other benefits,” FMCS wrote in its decision.

“We came to work at the VA because we believe in the mission of caring for the men and women who served this country,” AFGE National Veterans Affairs Council President Alma Lee said in a statement. “But instead of getting support for our work, we’ve been dealing with managers moving the goalposts and using these bogus standards to fire dedicated public servants. It’s disgraceful. And I’m so glad the arbitrator ruled on the side of reason, allowing us to get back to work serving those who have borne the battle.”

The Order from the FMCS mediator specifically mandates VA to:

  1. resume compliance with the requirements set forth in Article 27, Section 10 of the Master Agreement;
  2. rescind any adverse action taken against bargaining unit employees for unacceptable performance who did not first receive a PIP complying with the provisions of Article 27, Section 10;
  3. as a result, reinstate and/or make whole any such bargaining unit employee, including but not limited to back pay, restored leave, and other benefits.

No doubt this blunder will disrupt agency continuity and the lives of those employees impacted. I have said it before; these actions are not well thought out and the dimwits inside VA creating the legal instruction must be held accountability.

Whoever Tweedle Dee and Tweedle Dumb are who issued the internal policy interpretation of the statute should be fired. After all, isn’t this all about accountability?

Trump needs to hire professionals who know what they are doing rather than taking marching orders from his buddies at Mar-a-Lago.

Now, I am a Trump supporter, but one thing I cannot figure out is how he is allowing senior leaders linked to confirmed investigations of massive fraud, waste, and abuse like Diana Rubens, Thomas Murphy, Jamie Manker, and Margarita Devlin continue to work at the agency as key decisionmakers while instead hammering low-level nobodies who are simply fighting for reasonable accommodations or engaged in protected whistleblowing.

Is this the brand of accountability taxpayers demanded in 2017?

Something does not make sense.

The folks costing taxpayers hundreds of millions in fraudulent policies who also hurt veterans are being allowed to retire on the dime of Uncle Sam while everyone is fighting about low-level employees. It is a tragic bait and switch.

[documentcloud url=”http://www.documentcloud.org/documents/4807370-Arbitrator-Ross-Award-Ofo-Letters-Grievance-Fmcs.html” responsive=true]

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32 COMMENTS

  1. Unfortunately for the AFGE, the opinion by Arbitrator Jerome Ross is invalid given given the AFGE has repeatedly filed this same grievance in numerous claims using the same facts evidence and grievance format.

    Each time the arbitrator sided with the VA until now.

    The only difference in this grievance filed by the AFGE is the fact that they claimed they did not know the intent of the Accountability Act statute and the arbitrator sided with AFGE on that point. That is even thou their prior claims were the same substantive claim which all were denied.

    As it stand the grievance claims award by the arbitrator Jerome Ross will be unenforceable in any court give the repeated efforts by AFGE to keep filing until they found a fool who would side with the AFGE. This action by the AFGE goes against and attacks the arbitration process through unlawful actions by the AFGE.

    Truly hope the AFGE enjoys throwing more good money after bad just trying to recoup the legal cost that were awarded in the claim let alone the legal cost of trying to enforce the bogus arbitration award in any court.

    The repeated filing to subvert the arbitration process by the AFGE is a measure that was filed in extremely bad faith. The VA should file against the the AFGE for their costly bad faith actions to recoup the legal expenses for all of the actions of filing these repeated grievances on the same issue by the AFGE.

    • If the Goofy Fcken people over at Mickey Mouse studios were to make a movie about this arbitrators opinion. It would be called A Shyster’s Tail.

      I am sure there will be plenty of shysters who try to make a buck off of it.

    • The VA needs to have its attorneys representing the VA instead of the bums who have been fired. What a crock of shit.

  2. 09/01/2018

    Dear Benjamin Krause,

    Things must be getting bad in America—if you cannot find a good attorney.

    That’s right I was looking for one with Karlheinz Halter back in 1988 they all fled town [Torrance/LA County] , and all the judges died [O’Neill/McKee] the mayor’s house in Carson got torched as the Sheriffs watched it burn to the surprise of the arriving Fire Department—-the result was the 1998 Cox Report.

    And Lockheed [a large chunk of the 1998 Cox Report] has their 2nd Attorney in the VA Administration.

    In 1995 —Page 186 “202, Letter to President from C. Michael Armstrong, Chairman and Chief Executive Officer of Hughes Electronics Corporation, Bernard L. Schwartz, Chairman and Chief Executive Officer of Loral Corporation, and Daniel M. Tellep, Chairman of Lockheed- Martin Corporation”

    And the proceedings look like children playing in the backyard [VA/AFGE/Senate/House/Trump].

    Why is Treason and Sabotage not too far away?

    Thirty years!

    Sincerely,

    Don Karg

    • Don in your post you ask “Why is Treason and Sabotage not too far away?”.

      Just want to point out that it is already hear and has been here for a few decades now.

  3. I guess we’re going to have to wait until the “subpar employees” are rehired. To see if “it” sticks to the wall!

  4. For one thing I’d like to read or know of all those reported ” AFGE whistleblowers.” That is from what state, the issues, forms of retaliation, staff status, wording of firings minus the verbiage, info inquiring minds would like to know.

    I have to call BS on this and many other tactics used. They are not “dimwits.” They knew well before-hand what the outcome would be. We are NOT dealing with idiots up there. They are cunning, long planning, evil to the core, full of deceit, treacherous, untrustworthy, duplicitous, self-serving, etc. With most things American or anti-American are many years ahead of Joe and Sally Six-pack. Pick a topic or issue. Instead of using ” legerdemain” lets try hocus pocus in the circus or plain old trickery to common legal shyster-ism. Locally to the grand global scale of things. Well planned out over a hundred years ago.

    In my lifetime I haven’t seen much due process or protections of freedoms or rights…but the AFGE, the connected, celebs, dirty politicians, legal beagles, and others performing the arts of double standards can have it all? Horse manure. Piss poor bargaining when it comes to protecting veterans/clients/patients versus some PIPs agreement in their constitution or agreements. Talk about some self service and hypocrisy.

    Piss on Alma Lee too. Nothing like sitting with a group of vets being talked to like dogs, threatened, called criminals for needing pain meds, listening to a bunch of shit, etc. Listening to other vets report they have to bow and kiss ass for their badly needed care. And watching the staff smiling ear to ear like a Opossum eating shit from a wire brush telling us not to use a Choice Card or civilian care for life and death situations or told to drive hundreds of miles after a vehicle crash, heart attack or whatever. Fiendish chuckles included. Or if we didn’t like the new VA way to hit the streets for dope or go back to drinking and on it went for hours. Plus all the bragging, orders and all that verbiage, words and script coming ‘from the top’ and the long list of those scum bags. Total BS. Then have to play the games, jump the hoops, play bureaucrat/poly-tick/agency crap to stalling games? Body count is up to what this week? Don’t mean nothin’ to many correct?

    Just what are those “low level employees?” The ones allowing for a ton of shit to be covered up or have let countless vets suffer and die along with the upper level staff and their controllers at “the top?” Those “team mates” and there are many that jack around with our files, pass along the grand VA styled retaliation, run-a-round games, and make sure it flows out to the civy world too and into politics or among the local shit-heads? Which is all protected, supported by all including the happy caps of the VSOs to media and all other med associations and boards?

    Oh it all makes sense alright. The destroyers have us all right where they want us on every level of life there is to ruin, control, censor, brain-washed, socially engineered, occupied, prohibit, suppress, attack, etc. Just like our so-called allies who are actually occupying forces, shadow governments/evil societies, etc. Forced to support them or be labeled. Support them a little ya might as well support them all the way and kiss feet and rings. Either way, whatever, we are on the losing end of the shit stirring stick while the distractions and circus maximus continues.

    “http://www.thecommonsenseshow.com/should-i-stay-or-should-i-go-is-it-time-to-leave-america/?utm_source=rss&utm_medium=rss&utm_campaign=should-i-stay-or-should-i-go-is-it-time-to-leave-america”

    “https://www.blacklistednews.com/article/68099/are-multiple-failed-coups-leading-to-the-engineered-fall-of.html”

    Treason and sabotage since circa 1800 and beyond.

  5. So what. They ignore it. Whats the union going to do since they cant sue otherwise it would not have went to arbitration. Its a no brainer.

  6. If this decision is NOT APPEALED there should be malpractice charges filed against the attorneys representing the VA.
    Who is opposing the AFGE? Who are the attorneys opposing the AFGE.
    Who is the “arbitrator” who made such a bullshit ruling which does not comport with the Statutes?
    The SLIME is reaching everywhere.

  7. Just what if the frontline employees that got the axe were caught in the middle of wanting to do the right thing by veterans and the rules and polices their supervisors laid down to them that actually came from our dear Congress mandates? As a veteran and former VA employee – always in a maintenance roll and always observing the interaction of the employees that were directly dealing with patients, I saw those folks for the most part doing the best they could given the limitations and rules that came down from management. If there were services veterans weren’t receiving, you need to look for the source of the constraints and you’ll mostly find Congress behind them. For example, when I started at the VA, “means testing” was unheard of. The longer I worked, I saw the bar raised higher and higher before a veteran could qualify for services. That broke the promise my recruiter made me: “if you ever need health care, all you’ll have to do is visit a VA medical facility” Not so since Congress changed that policy. I have a very hard time blaming front line employees for the problems at the VA because I’ve seen first hand the causes of why the VA is not able to serve the veteran the way it should. Just follow the money and the reason for all things become clear. Too many in Congress also have a very bad habit of wanting to privatize VA services because their friends can make a buck off it. In the the long run, those privatized for profit services will prove to be a failure for veterans.

  8. Here is one of those slimey VA employees that steals pain meds and caused Veterans to suffer. Just so he could feed his habit.

    Department of Justice
    “VA Medical Center Nurse Indicted, Arraigned for Allegedly Tampering With and Stealing Prescription Opioids”
    News Release #18-84

    “PROVIDENCE – A nurse employed at the Providence VA Medical Center was arraigned and pled not guilty today in U.S. District Court in Providence to a federal grand jury indictment charging him with stealing liquid opioids for his own personal use and replacing them with saline.

    Jared Scott, 34, of West Warwick, was indicted on June 28, 2018, on one count each of tampering with consumer products and acquiring a controlled substance by deception and subterfuge.

    Scott was released on unsecured bond following his arraignment before U.S. District Court Magistrate Judge Lincoln D. Almond.

    According to information presented to the court, Scott, as a Providence VA Medical Center nurse, had access to vials of liquid opioids for patient use. Scott would access the vials, often for patients that were not his, remove vials of the drug for his own personal use, and leave behind vials filled with saline.

    The indictment and arraignment of Jared Scott are announced by United States Attorney Stephen G. Dambruch; Sean J. Smith, Special Agent in Charge of the Department of Veterans Affairs Office of Inspector General; and Jeffrey J. Ebersole, Resident Agent in Charge of the United States Food and Drug Administration Office of Criminal Investigations.”

    Full Press Release At: “https://www.justice.gov/usao-ri/pr/va-medical-center-nurse-indicted-arraigned-allegedly-tampering-and-stealing-prescriptio-0”

  9. If they’re not careful, AFGE and other government unions will be the death of the VA and several other agencies. I’m not smart enough to convince myself that there is not a structural problem in government and AFGE is not smart enough to convince me that one doesn’t exist. It’s time to get down to business before we are totally consumed with contract after contract being issued as a means of control.

  10. I will never defend the AFGE. But these actions are par for the Trump admin. They have denied Due Process in MANY of the actions they have taken. Due Process in a Pillar of our laws and society. That is all I will say on the subject. Thank you and PEACE!!

    • I believe that AFGE fell right into the hands of those that want them gone. If congress and the senate saw the need to vote overwhelmingly for the Office of Accountability, they definitely know that there is a problem with a culture that feels as though they have the government in a “strangle hold.” I do believe that the next move will be harsh, and will be upheld on merit by the house and the senate. They know that a problem exist where this is concerned and this time around, a grievance wont cut the mustard on trying to sustain already tainted AFGE or any other union that approves of subpar services. This is especially of severe concern where our Veterans are concerned and you can bet on swift action where they are concerned.

  11. Hey Elf,

    Here is copy of the songbird singing to the citizens of North Vietnam in 1969. A tape that was misfiled by the C.I.A. in the National Archives.

    “https://youtu.be/EHF0yXrwr-0?t=195”

  12. If you all have not heard we veteran’s can now file class action lawsuit against the VA.

    Monday I will be contacting a class action attorney to help veteran’s whom have been reported and punished of disruptive behavior.

    The VA Disruptive Committee has punished thousands of veteran’s falsely of disruptive behavior and has stripped away all of our civil, human and constitutional rights to a fair trial and due process of law.

    I know once this lawsuit is set in motion or I hope some civil lawsuit attorney will take this case.

    I will keep you up to date. I just hope no more veteran’s will commit suicide because the VA falsely accused and punished them.

    As many of you know I have been fighting this injustice since 2004. The Denver VA admitted in June of this year.

    That the VA Disruptive Committee in Denver has determined that the Disruptive Committee back in 2004 had not been run properly and if my case would have come in front of the Disruptive Committee today you would have never been punished.

    There are thousands of veteran’s whom have been falsely accused of disruptive behavior and then punished.

    This must be stopped. If you know veteran’s who have been falsely accused of disruptive behavior.

    Tell them to keep an eye open in the near future for more information.

  13. After reading the comments, it is obvious none of you know what you are talking about, espescially Seamore Klearly. The article is obviously about VBA employees not afforded Due Process or givin PIP’s prior to unjustified termination based on unreasonable production standards and quality standards. Of course this does not cover the firing of a nurse that steals medication from the VA Seamore. Stop trying to start $h!t.

    • Hey dim witted GMJ,

      Guess you define due process as any continual process that ends with fired incompetent employees getting their jobs back with bonuses for being fired for their incompetence.

      Personally I see due process as if you fuck up or cannot do the job then you are replaced. That is how it is in the real world and things are now moving in that direction with the Government employment sector. Thanks to our most excellent President’s EOs.

      Also if you do not like reading about VA nurses stealing pain meds from Veterans to support their drug habits. Then substituting saline solution for the pain meds so that Veterans suffer greatly from the thefts. Get all the VA employees to stop stealing Veterans meds or better yet fire them all.

    • Hey Dim Witted GMJ,

      Your really going to love hearing this.
      _____________________________

      VA Dept. nurse admits poisoning husband with eye drops over three days, faces murder rap
      By Robert Gearty | Fox News, September 1, 2018

      “A South Carolina man who appeared to have died of a fall was poisoned with eye drops by his wife who has been charged with murder, according to reports.

      Detectives arrested Lana Sue Clayton, 52, a U.S. Department of Veterans Affairs nurse, Friday in the July 21 death of Steven Clayton at their upscale waterfront home in Clover, The Herald in Rock Hill, S.C. She was also charged with unlawful malicious tampering of food.

      Steven Clayton, 64, was found in the foyer of his home after what appeared to be a fall down the stairs, the paper reported.

      An autopsy determined he died of poisoning, according to the paper. She then confessed to spiking his water with a chemical found in over-the-counter eye drops to relieve redness.”

      Full Article At: “http://www.foxnews.com/us/2018/09/01/va-dept-nurse-admits-poisoning-husband-with-eye-drops-over-three-days-faces-murder-rap.html”

      _______________

      The VA really needs to step up and investigate any unusual Veterans deaths at the VA facility where she worked. These crazy AFGE type serial killers using poisons have usually committed a high number of murders of Veterans at work before they took their murdering to the civilian population.

      Most VA Poisoners have been tied to between 10 to 60 Veterans murdered before going public with their crime.

  14. The rules for discharge are there for a purpose – they are to make sure a person is not fired because a supervisor doesn’t like a person or wants to put a “friend” in a position or wants to put a person in the job because they go to the supervisor’s church, etcetera. The rules are not that difficult to follow. If a person is not performing, then there are steps the supervisor must follow in order to discharge that person. It may be that an employee is having difficulty navigating a new data system and needs extra training. It may be that the employee has a new boss and the boss doesn’t understand their position. It may also be a personality conflict. Nevertheless, if the employee just can’t do the job that they were hired therefor, and they can’t be retrained, then they will be discharged. It may take a little longer but the system does work. The system also highlights whether the employer actually knows what needs to be accomplished by employees and whether they can communicate/teach their employees. If there needs to be changes, then the administration, whether it be Republican or Democrat, needs to revisit the master agreement and seek to change it (and not rule by fiat).

    • Bullshit. The so called rules you are talking about are there to protect bullshit workers. If managers are firing competent workers then it would show up in their performance and they need to be fired also.

      As for it being political. Why does the AFGE only contribute to Dems with the exception of those contributions to fight against Republicans?

      “https://www.opensecrets.org/orgs/totals.php?id=D000000304&cycle=2014”

      • Please do not use crude and distasteful language. For your information, new supervisors like those rules because it gives them a blueprint of how to terminate individuals who should be dismissed especially if they have never terminated anyone. There are people who play the system, but it is there for a purpose. And from personal experience, I know of a supervisor who attempted to dismiss an employee because she didn’t personally like him. The dismissal was not based on performance as the individual had previously received outstanding ratings. She did not follow the rules and eventually, after he left the VA, was given the opportunity to return to the VA when it was found that the supervisor had not followed the rules and had gone after the person because he was over 50, white, and a veteran.

      • Elmer,

        First let me say this, Fuck You and your thin skin.

        Second your whining about what goes on at the VA is just that Whining.

        The rules at the VA are being changed to weed out the corrupt, useless, incompetent, wasteful pieces of shit now working at the VA.

        Personally I see anybody that works for the most corrupt agency in the U.S. Government as ethically and morally challenged. Now you come along and try to claim the rule changes that have been made to make it easier to remove bad employees need to changed back to what they were. Even though it would mean many more Veterans will continue to suffer and many of them die because of the way things have been running at the VA. Just so they can protect a few AFGE members from being forced to look for a new job.

        Your use of the word church, the thin skin act of yours, and your posting here to support your Union is one of the most despicable acts you can do and it is very insulting to this Disabled Veteran who has suffered and nearly died from the so called health care I receive through the VA.

        So Fuck you Elmer and your Union.

  15. For your uneducated information, I am a 100 percent schedular disabled veteran and I do not think that every employer/employee is the anti-Christ. The workers have always responded in a very courteous and efficient manner. Moreover, the AFGE is not my union because I am unemployed and waiting for death as I take my chemo and radiation treatments.

  16. Mssr. Klearly, I am sorry that you have not received what you believe to be proper care by the VA. I do not receive my care through the VA. I have insurance and use private care providers even though I can use a VA facility which is actually closer than my private providers. I use a private care provider even though I must pay out of pocket expenses and expenses not covered by insurance (it is better for tax purposes). When I received my various diagnoses concerning my now service-connected disorder, I researched the type of treatment that was/is available, and where there were facilities offering that treatment. I delved into the expertise of the doctors on staff at the VA and other private care providers and made an informed decision that my disease could best be addressed in the private sector. Some veterans do not have this luxury but we do have a responsibility to be informed patients, to discover what can (and can’t) be done through the VA health care system, and to question treatment or medications used at all times.

    I am sorry that I do not fit into your mold of someone who is not a veteran or who is a lackey for a union or has a thin skin because I do not think it necessary to use crude, crass, and blasphemous language. I do think that it is unfortunate that you would besmirch and impugn my birth. My mother and father were married to one another when I was born. If you look at the three blood types of the three individuals (mother, father, and myself), it is apparent that they are my birth parents. If you look at body type and characteristics, it is also obvious. Finally, if you look at DNA markers, it is conclusive that my parents, who were married at the time of my conception and birth, were my birth parents – I am no bastard – and I have the court documents to prove as such. If I was a bastard child, I would not have been able to inherit from my father when he passed because I would have been classified as illegitimate. Please desist in your negative connotations.

    • One lie after another, just another VA employee who thinks Veterans should continue to suffer and die under the way the VA has been running for years to protect bad employees. Oh and for the record I truly don’t care about your heritage Elmer you are still a fucking bastard. Most definitions of the term include the heritage thing, but they also include the definition of “an unpleasant or despicable person”.

      As for your health care options being employed by the VA with the Medical insurance. Of course you are going to chose real Heath care as opposed to the bullshit care provided by the corrupt and incompetent people your are trying to support protecting.

  17. To set the record straight, I am not a VA employee. I am not a contract employee. I am unemployed. And thank you for besmirching my heritage – I am in the process of hiring a firm for a federal libel action against yourself. If I can’t find a firm, then I will file a pro se action and I will enjoy the process especially if it means that your inane bullying is terminated. Written words do have consequences and I would hope in the future that you recognise your responsibilities and not blame others.

Comments are closed.