VA Broke Settlement Agreement, Continued Bad Faith Bargaining, Arbitrator Finds

An independent arbitrator last week found that the Veterans Affairs Department has been engaged in bad faith bargaining in recent negotiations with the American Federation of Government Employees, in contravention of federal labor law, President Biden’s workforce policies and a 2021 settlement between the parties.

The VA has been a flashpoint for federal sector labor issues over the last several years, in part due to the Trump administration’s adversarial approach to unions and in part because of the 2017 VA Accountability and Whistleblower Protection Act, a law that made it easier to fire federal employees but whose legality and effectiveness in reforming the department has recently been called into question.

When Biden took office in 2021, he instructed agencies to roll back anti-union policies implemented during the previous administration and to adopt a more collaborative approach to labor-management relations. To that end, in July 2021, AFGE and the VA reached a settlement agreement to dispense with a variety of outstanding grievances and unfair labor practice complaints as well as to set up ground rules for more fruitful negotiations on a new collective bargaining agreement.

But things haven’t played out that way. After more than a year of talks, the parties have yet to reach agreement on a new contract. And last August, the union urged VA Secretary Denis McDonough to replace chief labor negotiator Kurt Martin, accusing him of trying to preserve Trump-era policies rather than comply with Biden’s labor agenda.

AFGE filed multiple grievances accusing VA of engaging in bad faith bargaining and a number of other labor law violations. Last week, arbitrator Felice Busto, appointed to the case by the Federal Mediation and Reconciliation Service, issued a 39-page decision in favor of the union, finding that management violated the 2021 settlement agreement, improperly moved permissive bargaining topics to impasse, ignored Federal Labor Relations Authority precedent and engaged in surface and other bad faith bargaining techniques.

Many of the union’s allegations stem from the VA’s efforts to excise numerous agreements in place at the local level as well as other memoranda of understanding that cover issues like parking, telework and work schedules. Busto sided with the union, concluding that the proposal would effectively rewrite a number of contract articles not open for renegotiation and unlawfully force the union to waive its right to bargain over the various local agreements’ provisions.

“Although the ground rules allow for rolled over articles to address any formatting or non-substantive edits to a rolled article, the agency’s proposal constituted a substantive reach into unopened articles and, as such, was a violation of the ground rules,” she wrote. “As [AFGE Attorney Thomas] Dargon testified, ‘there would never have been an understanding that you could go into rolled over articles. It would have completely defeated the point of there being a limited reopener.’”

Busto also found that the department ignored FLRA precedent by continuing to incorporate provisions of the VA Accountability Act to get rid of performance improvement plans into its proposals. The FLRA in 2020 and 2021 found that the elimination of PIPs from the pre-disciplinary process violated AFGE’s union contract.

“Martin admitted that the agency refused to accept the FLRA precedent,” Busto wrote. “He testified that ‘it’s an open question right now whether there’s going to be a conflict between an [Merit Systems Protection Board] decision finding . . . and the FLRA decision . . . This analogy is inapposite because U.S. courts of appeal are bodies with equivalent authority and jurisdiction. Moreover, it is the FLRA and not the MSPB that makes determinations of negotiability and the decision by an administrative law judge or even the MSPB itself would not override a determination of negotiability by the FLRA.”

The arbitrator also found multiple instances in which the department engaged in surface level bargaining, a practice by which a negotiating party technically is engaged in the negotiation process, but without making an effort to actually reach agreement.

“The evidence established that the agency’s repeated assertions that it had ‘no interest’ or that it ‘disagreed’ with the union’s proposals without counter proposal lends support to the union’s position that the agency engaged in surface bargaining,” Busto wrote. “Martin admitted that he repeatedly made such statements. The negotiating notes established that on the heels of these statements, the agency did not make counterproposals.”

Busto’s decision requires the VA to cease engaging in bad faith bargaining, rescind the proposals she found violated the settlement agreement and federal labor law, and bargain in good faith toward a new contract.

VA Spokesman Terrance Hayes declined to answer questions about whether the department would appeal the arbitrator's decision, but said the parties are back at the negotiating table “this week” and that a number of tentative agreements have already been reached between management and AFGE.

“As Secretary McDonough often says, a unionized VA workforce is a strong VA workforce, and we at VA are committed to working with all of our bargaining partners to deliver for vets and VA employees alike,” he said in a statement. “Bargaining with AFGE on a new master agreement is progressing, the parties are in negotiations this week, and tentative agreements continue to be reached at every bargaining session.”

Alma Lee, president of AFGE’s National VA Council, urged the department to heed the arbitrator’s decision and adopt a more collaborative approach to negotiations.

“For over a year, AFGE negotiators have shown up ready to negotiate a fair contract that helps VA employees and the veterans we serve,” she said. “But due to the bad faith tactics in these negotiations, we have been unable to reach a deal. This arbitration decision is proof that our previous criticisms of the VA negotiating team were valid and that Secretary McDonough’s VA is acting in a way totally contrary to President Biden’s commitment to be the most pro-union president in history.”