FLRA Denies VA’s Request for Reconsideration on Accountability Act Implementation
The Department of Veterans Affairs filed a request for reconsideration after the Federal Labor Relations Authority (the Authority) found for the American Federation of Government Employees (the Union) on November 20, 2019. In the 2019 decision, the Authority found that the agency had a duty to bargain with the Union over the implementation of Accountability Act provisions providing the Agency with additional power to address performance and misconduct concerns. On May 11, 2020, the FLRA denied the agency’s request for reconsideration of the 2019 decision.
As the FLRA noted, the Accountability was signed into law on June 23, 2017. On July 1, 2017, the Union submitted a demand to bargain implementation of the Accountability Act, but the Agency proceeded to “unilaterally implement the applicable provisions and procedures of the Accountability Act, without bargaining.”
In their request for reconsideration, the agency argued that the FLRA erred in its legal conclusions because it improperly “mischaracterized the stipulated issue and failed to defer to the Arbitrator's interpretation of the stipulated issue” without providing due deference to the arbitrator’s interpretation of the issue. According to the agency, the arbitrator, during the initial grievance, narrowed the issues to whether the agency was required to bargain over “the specific timelines and procedures of the Accountability Act.”
But, the FLRA found that the agency’s assertions were not supported by the record, and that in its decision, it had merely paraphrased the arbitrator’s own interpretation when it stated that the issue was “whether the Agency’s unilateral implementation of the Accountability Act violated the Statute and the parties’ agreement.”
The agency also argued in its request for reconsideration that the FLRA erred in its remedial order by failing to provide specificity concerning the parties’ obligations. The agency asserted that the order “did not remand the matter or direct the parties to take any affirmative action.” The FLRA disagreed, and observed that its previous decision had vacated the arbitrator’s award because it was “contrary to law.” The FLRA acknowledged that it was clear from the pleadings filed by the parties that they disagreed on how to resolve the grievance in the wake of the FLRA’s 2019 decision, but that this disagreement did not “demonstrate that the Authority erred in its remedial order by vacating the award.”
For the above stated reasons, the FLRA denied the Department of Veterans’ Affairs motion for reconsideration.
Read the full decision: AFGE v. U.S. Dep’t of Veterans Affairs.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.