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:
- resume compliance with the requirements set forth in Article 27, Section 10 of the Master Agreement;
- 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;
- 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.
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