VA to Eliminate Official Time for All Medical Positions

The Veterans Affairs Department announced Thursday that it would unilaterally stop paying union employees in medical disciplines for time spent on representational duties.

Acting VA Assistant Secretary for Human Resources and Administration Jacquelyn Hayes-Byrd announced that next week the department would “repudiate” all portions of its collective bargaining agreements with unions that call for the use of official time. She said that Title 38 of the U.S. Code, which governs medical employees at VA, allows the department to remove issues from the scope of bargaining between labor and management, provided they impact “direct patient care.”

“It’s common sense,” she said. “Allowing health care workers to do taxpayer-funded union work instead of serving veterans impacts patient care negatively.”

In a memo to the American Federation of Government Employees, Hayes-Byrd outlined 13 articles of the AFGE collective bargaining agreement that would be altered as part of the change, which is effective Nov. 15. She argued that Federal Labor Relations Authority precedent allows for an agency to reject provisions of a contract if they “conflict with federal law.”

In August, VA Secretary Robert Wilkie rescinded a 2010 memorandum of understanding with the National Federation of Federal Employees that provided guidance for what issues were non-negotiable because they impacted direct patient care, and what remained negotiable because they only indirectly impact care. Union officials at the time took a “wait and see” approach, although they noted that the move could have sweeping effects, depending on how the department chose to implement the change.

“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,” said NFFE General Counsel Jefferson Friday, in August.

Unions representing VA employees excoriated the move to cut official time, calling it an attack on workers’ legal rights. They noted that official time is a practice enshrined in the 1978 Civil Service Reform Act and that it is necessary to a union’s ability to function, given that dues-paying membership in the federal sector is voluntary, even though a union is required to represent every member of a bargaining unit, regardless of their status.

“Removing access to [official] time is like asking the fire department to operate without firetrucks or a fire hose—and the result will be just as disastrous for our veterans,” AFGE National President J. David Cox said in a statement. “Make no mistake, this is an attempt to silence the voices of VA employees at a time when such oversight is more critical than ever. Clinicians use official time to raise concerns about patient safety, access to care and staffing shortages.”

Cox argued that if the VA wants to improve patient care for veterans, it merely needs to hire more people.

“The VA is touting how this move will return nearly 430 medical professionals to their health care jobs full-time, yet there are 45,000 vacant positions in the VA, including 35,000 vacant health care positions,” he said. Those 430 employees amount to 1/10th of 1 percent of the more than 380,000 employees at VA, according to March 2018 data from the Office of Personnel Management.

Bonnie Castillo, executive director of National Nurses United, which last month saw its contract proposed by a Federal Service Impasses Panel arbitrator rejected by Wilkie, called Thursday’s announcement an effort to bust up federal unions.

“This is the latest salvo from this administration in its prolonged and orchestrated attack on the legal rights of our nurses who are committed to providing the highest quality of care to those who served our country,” Castillo said. “This administration attempted to usurp official time, and silence the collective voice of nurses by issuing presidential executive orders, but the courts found the administration had exceeded its legal authority. Now Secretary Wilkie is attempting to do the same thing.”