Panel Reaffirms Blow to Trump's Signature Civil Service Reform, Again Calling for Rehiring of Fired Workers

The Veterans Affairs Department has lost another appeal in a labor battle, striking another blow to its effort to salvage a key reform President Trump ushered into law to ease the firing of employees. 

The Federal Labor Relations Authority has affirmed its decision that in part unwound VA’s implementation of the 2017 VA Accountability and Whistleblower Protection Act, a law that made it easier to fire employees. The department had sought to convince FLRA to reconsider its decision in the waning months of Trump’s presidency, but the panel found VA made no compelling argument for it to do so. 

Trump repeatedly highlighted the act as one of the key legislative accomplishments of his term. FLRA first upheld a 2018 arbitrator’s ruling last year, which found VA violated its collective bargaining agreement with the American Federation of Government Employees when it eliminated “performance improvement plans” from the pre-disciplinary process. The denial of VA’s motion to reconsider reaffirms a requirement for VA to reinstate all employees fired without first being provided such a plan.

“Mere disagreement with or attempts to relitigate conclusions reached by the authority are insufficient to establish extraordinary circumstances” necessary for reconsideration, the panel wrote in its new decision. “These are the same arguments that the authority addressed in [the original case] and are therefore merely disagreement with and an attempt to relitigate the authority’s conclusions.” 

Trump, VA and lawmakers in both parties have heralded the law as a significant step in cracking down on misbehaving and poorly performing employees, but its enforcement has been mired in controversy since its passage. A federal court ruled last year that VA could not apply the law retroactively and appellate judges could review whether VA’s selected punishment fit an employee’s alleged misbehavior.

AFGE brought the case for mediation after VA issued a series of memoranda that said VA was no longer required to give employees 90 days to improve and performance improvement plans—or PIPs—would not be used. The union said that violated specific clauses in its collective bargaining agreement requiring those steps for employees identified for poor performance.

VA argued before FLRA, as it did before a mediator two years prior, that the contents of the 2017 accountability law superseded the provisions of its contract requiring the improvement plans. The authority agreed with the arbitrator, however, in ruling the law dealt only with the timeline for carrying out a firing or other punishment after VA provided the disciplinary notice. Because the PIPs are intended to improve performance well before the actual issuance of a punishment, FLRA said, the law has no bearing on them.

The FLRA decision once again requires VA to resume compliance with its collective bargaining agreement, rescind any adverse action against AFGE-represented employees who did not first receive a performance improvement plan, and reinstate any fired worker at the department, including back pay, restored leave and other benefits. VA will also pay AFGE’s attorney fees, though it can still appeal the ruling to federal court. 

Mark Ballesteros, a VA spokesman, said the department—which can still appeal to the federal circuit—is "reviewing the FLRA's decision to determine its next course of action." The Biden administration, however, has forged a completely different path with federal employee unions and has promised to reverse all of Trump’s efforts to water down civil service laws, making it less likely the department will fight the ruling further. 

AFGE originally brought the case to mediation on behalf of its employees at the Veterans Benefits Administration, but the union has since said it expects the ruling to apply across the department. It is unclear exactly how many VA employees could be impacted by the ruling, but public data show the department has fired more than 10,000 employees since the accountability law and subsequent memoranda revoking performance improvement plans went into effect. AFGE represents more than two-thirds of the department's more than 400,000 workers, and the union expects the number of impacted employees is at least in the hundreds.

While the bill won broad bipartisan support, lawmakers consistently accused the Trump administration of flouting congressional intent in implementing it. Trump frequently cited the success of the accountability law among his most significant accomplishments, saying it has enabled the department to get rid of “sadists” and “thieves” in its ranks.