Fedweek

In a rare decision of recent times favoring a federal union over agency management in a dispute, the FLRA has ruled that a law aiming to speed up discipline at the VA does not override protections in a negotiated contract – in this case involving a 90 day performance improvement period which had been circumvented under the VA law.

In a 2-1 decision, the FLRA upheld an arbitrator who had found in favor of the AFGE union in a dispute arising from the 2017 VA Accountability and Whistleblower Protection Act, which established a 15 business day deadline for the VA to issue a final decision after first proposing a disciplinary action. A pre-existing contract between the AFGE and the VA set procedures to be followed before taking disciplinary action against an employee for alleged poor performance, including a formal “performance improvement period” of at least 90 days.

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The VA argued that it was no longer required to provide that period and began issuing notices to employees that gave them only two pay periods to bring their performance to the fully successful level and warning of possible actions including firing. After the AFGE filed a grievance, an arbitrator ordered the VA to rescind any performance-based adverse personnel actions taken against bargaining unit employees who did not first receive a performance improvement plan per the contract and reinstate them with back pay and benefits.

On an appeal from the VA, the FLRA found that the arbitrator correctly ruled that the 2017 law “provides for timelines regarding the notice, response, and final decision in a removal, demotion, or suspension of a covered employee for performance or misconduct, which is not the issue contested here – PIPs.”

The contract involves steps that “must occur before the Agency initiates a performance-based action, as distinguished from the procedures/timelines of the Accountability Act, which govern after it has initiated the performance-based action,” it said, adding that the VA had agreed to that requirement in bargaining.

The dissenting FLRA member wrote that a performance improvement period such as the one required in the contract is “a procedure related to an adverse action, and the Accountability Act does not differentiate between procedures based on when they occur.”

The ruling was the second major decision against the VA this year regarding the 2017 law. In March, a federal appeals court said that the department could not use its widened powers under the law for conduct or performance dating to before the law was enacted.

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