VA Secretary Reintroduces 'Gray Area' in Scope of Bargaining with Unions

Veterans Affairs Secretary Robert Wilkie announced Friday that he had rescinded an agreement with federal employee unions establishing what issues can and cannot be negotiated by labor and management, arguing that the move will improve patient care at the department.

But union officials said that while they will reserve judgment to see the practical implications of the decision, it will add uncertainty to future collective bargaining negotiations.

The memorandum of understanding, signed in 2010 by then-Deputy VA Secretary W. Scott Gould and several labor unions, including the National Federation of Federal Employees, National Nurses United and the National Association of Government Employees, laid out issues deemed directly related to patient care and not subject to bargaining, and those only indirectly related and thus negotiable between the department and unions.

A provision of statute governing veterans’ benefits, commonly referred to by its subsection “7422,” states that issues regarding professional conduct, competence and direct patient care are not subject to bargaining between labor and management.

But the word “direct” in the statute has led to many disagreements between unions and agencies over the years. Jefferson Friday, general counsel for the National Federation of Federal Employees, said the 2010 agreement was an effort to minimize such fights.

“7422 prohibits bargaining over the professional conduct and compensation of employees, but there’s a lot of rub there,” Friday said, adding that theoretically almost everything is somehow related to patient care. For instance, the memorandum notes that pay scales and promotion policies cannot be negotiated by the union, but that if management fails to follow that policy, an employee can file a grievance.

The agreement also lays out that issues like trading days off and applying for overtime are only indirectly related to patient care, making those processes subject to bargaining.

“A really common area for this is in scheduling,” Friday said. “[The] mission of the VA is to provide patient care for veterans, so anything you could name is going to indirectly affect patient care at some level, since that’s the whole purpose of the department.”

The VA did not respond to requests for comment for this story. But in a statement, the department said the decision would “preclude collective bargaining on issues indirectly related to VA providers’ professional conduct or competence.”

“President Trump has made it clear that we want our providers laser-focused on caring for veterans and that’s exactly what we’re doing here,” Wilkie said in a statement. “This move today ensures that unions can’t bargain on issues related to our providers’ professional conduct or competence, essentially patient care.”

Friday said he first heard about the decision via media reports, and that department officials had not yet reached out to discuss the practical implications of the rescission. But if, in the unions’ view, the department tries to improperly reduce what can be negotiated, he said NFFE will fight back.

“I think the Trump administration may be trying to find every single anti-union thing they can do, so they can point to it in the media,” Friday said. “But to the extent to which this is going to change what the VA bargains over remains to be seen. If they do take a different, more aggressive interpretation of 7422, that’s going to result in more litigation with the unions. But we’ll just have to see what happens.”