AFGE Rep Wing Recap: November 2012

VA VIOLATES OWN POLICY IN DENYING PROMOTION TO EMPLOYEE
The Veterans Affairs Department violated its own policies when the human resources department denied an employee a promotion that had already been approved by her director, an arbitrator has ruled.
The case involves a Hybrid Title 38 Social Worker who learned in 2011 that she had been denied a promotion to GS-12 back in 2009 after the promotion had been approved by the Professional Standards Board and her director. Despite the approval, a classification specialist in the HR department summarily rejected the promotion on the basis that the Social Worker was doing GS-11 work and didn’t warrant the grade increase.
AFGE Local 1206 filed a grievance on the member’s behalf, alleging that the VA had violated its own handbook and policies, and AFGE Legal Rights Attorney Michael Pazder represented the case at arbitration. The VA Handbook says a director’s decision on a promotion following Board action is final, so HR did not have the right to reverse the decision since it was never brought back to the Board or the director for reconsideration. VA policy also makes clear that Hybrid Title 38 employees can be promoted beyond the full performance level of their position based on their qualifications and experience if so determined by the Board, as was the case here.
The agency refused to correct this when notified, claiming the Board had erred in approving the promotion and that processing an allegedly unwarranted promotion would “unjustly enrich” the employee. Testimony at the hearing revealed that HR personnel, and the director who now said his decision was incorrect even though he never formally reversed it, have an astonishing lack of knowledge of VA policies and how promotions are supposed to work for Hybrid Title 38 employees vs. Title 5 employees.
The employee will be retroactively promoted with back pay, including any subsequent step increases she would have received had the promotion been implemented at the time.

BOP FAILURE TO FILL MISSION CRITICIAL POSTS VIOLATES MASTER AGREEMENT
The Bureau of Prisons Federal Correctional Institution in Talladega, Ala., improperly vacated mission critical posts in violation of the Master Agreement between the agency and AFGE, an arbitrator has ruled.
Between 2004 and 2005, BOP instituted the “Mission Critical Roster” program, under which prisons were supposed to place posts on the roster only if they were mission critical. This resulted in a substantial reduction in the number of staffed posts at various prisons. However, even with this reduced number of posts, BOP regularly failed to fill mission critical posts at various facilities, including FCI Talladega.
Local 3844 believed the prison was penny pinching and didn’t want to pay Correctional Officers overtime to fill the positions. The Local filed a grievance, arguing that the failure to fill a mission critical post without good cause violated Article 27 of the Master Agreement, which requires BOP to reduce the inherent hazards of a correctional environment to the lowest level possible without relinquishing any management rights.
AFGE Assistant General Counsel Matthew Milledge represented the Local at the arbitration hearing, where the agency raised a number of procedural and substantive arguments that were struck down by the arbitrator. The arbitrator agreed with AFGE’s argument that Article 27 prevents the BOP from vacating posts without good cause and found that none existed. The arbitrator ordered the agency to pay overtime to any employee who would have received it but for the agency’s violation of the Master Agreement.
D.C. EMPLOYEE WINS REINSTATEMENT, BACK PAY AFTER WRONGFUL REMOVAL
A D.C. Department of Consumer and Regulatory Affairs employee who had been removed without just cause in 2007 finally has been reinstated with full back pay and other entitlements, thanks to dedicated representation of AFGE Assistant General Counsel Leisha Self. An arbitrator in 2009 ruled that the employee, a member of AFGE Local 2725, had been removed improperly but left the remedy up to both parties to settle. DCRA appealed the case at this point, resulting in a long delay for the employee for a remedy.
The agency refused to settle on remedy even after it lost its appeal, so the case was returned to the arbitrator, who ordered the employee reinstated with all of the back pay and benefits requested – including authorizing the employee to use his substantial accrued annual leave without forfeiture. In addition, the arbitrator awarded attorney’s fees of $87,531, plus the amount that AFGE expended on the post-arbitration remedy reply.

ARBITRATOR OVERTURNS BOP OFFICER SUSPENSION
An arbitrator has overturned a seven-day suspension against a Bureau of Prisons senior officer specialist that was ordered by the agency 16 months after the incident in question.
In March 2009, the officer at the U.S. Penitentiary in Leavenworth, Kan., shoved a fellow officer twice during a workplace dispute. In accordance with agency policy in such matters, a Threat Assessment Committee was convened within days of the incident and issued its findings several days later, ruling that the incident was an isolated occurrence that warranted no further action. The agency assigned an investigator to the case nearly a year after the incident and re-interviewed the key witnesses who had earlier provided statements to the Committee. Based on this investigation, BOP proposed a 14-day suspension against the officer in May 2010 that was subsequently reduced to a 7-day suspension by the prison warden in July 2010.
AFGE Local 919 then filed a grievance against the agency, contending the suspension was too harsh considering the circumstances and that the agency violated the terms of the Master Agreement, which requires the timely disposition of disciplinary matters. AFGE Legal Rights Attorney Hampton H. Stennis argued the case at arbitration. The arbitrator agreed with the union, stating, “While some discipline would have been justified had it been timely imposed, the delay in this case leads me to conclude that the grievance should be sustained in its entirety.” The suspension will be expunged from the officer’s record and the officer will be made whole for any earnings lost as a result of the suspension.
AFGE SETTLES CASE IN FAVOR OF DC HHS EMPLOYEE
District 14’s newest National Representative Johnnie Walker recently settled a case for a D.C. Department of Health and Human Services employee and AFGE member. The member faced removal from his position after being charged with inappropriate conduct, negligence in the performance of his job duties, disruptive conduct and failure to complete tasks. Despite the evidence mounted against the employee, AFGE was able to settle the case in the employee’s favor. The member received triple the settlement initially offered and was able to retire early on disability after 30 years of government service. This enabled the member to save his home from foreclosure while also affording him enough money to pay his mortgage through December. DETAILS ON AFGE LEGAL VICTORIES AVAILABLE ONLINE For a full view of cases published in the Rep Wing, click here or go to Casetrack at https://www.afge-casetrack.org/. Back issues of the Rep Wing are available online. To receive printed copies for distribution, please email communications@afge.org.

AFGE SCORES MAJOR WINS IN TSA REMOVAL CASES
The Office of Professional Responsibility Appellate Board (OPRAB) mitigated a removal to a 30-day suspension at Quad City International Airport near Moline, Ill. The TSO was charged with inattention to duty and failure to follow Standard Operating Procedures. The TSO at no time denied the charges and was honest about his unintentional violations, which did not cause any security breaches. AFGE sought a mitigated penalty due to his nearly 10-year service at TSA and prior military service. –Staff Counsel Bobby Walia
An Expert Security Training Instructor (ESTI) from George Bush Intercontinental Airport in Houston who was removed for off-duty misconduct, lack of candor and unprofessional conduct received a mitigated 14-day suspension with back pay after OPRAB sustained the unprofessional conduct charge. This unusual case stems from a February 2010 off-duty incident in which the ESTI was chased from an acquaintance’s apartment by a woman wielding a large butcher’s knife. No arrests were made and all witness accounts indicated the ESTI was not the aggressor. In October 2011, the ESTI was taken to a hotel by a TSA Office of Inspection agent, coercively interrogated and forced to take a polygraph. The ESTI then was removed from his position in August 2012. Thanks to GCO Intern Patrick DePoy for his great work. –Staff Counsel Gregory G. Watts
AFGE is making headway on appeals from terminations involving failure to pass recertification tests. In a series of recent decisions, OPRAB reviewed the cases of TSOs who failed the test and reversed the terminations due to, among other things, management’s failure to offer appropriate remediation. Recent wins include: O’Hare International Airport in Chicago, Newark Liberty International Airport and Bradley International Airport in Connecticut (Staff Counsel Julie Yeagle); Miami International Airport and Birmingham-Shuttlesworth International Airport (Staff Counsel Denise Duarte Alves); three cases at Los Angeles International Airport (Staff Counsel Bobby Walia); and two cases at Detroit Metro Airport (Assistant General Counsel Martin Cohen and Staff Counsel Julie Yeagle).
A TSO at Seattle-Tacoma International Airport who failed the Standard Operating Procedures Assessment (SOPA) three times got a last-minute reprieve. After an appeal was sent to OPRAB, AFGE reached agreement with management for the TSO to re-take the Assessment for a fourth and final time after 40 hours of remediation. The TSO was a nine-year exemplary employee who received a Level 5 PASS score in 2011. The TSO successfully passed the Assessment and will be fully reinstated. –Staff Counsel Bobby Walia

FLRA UPHOLDS AFGE WIN AGAINST OFFICE OF CUBA BROADCASTING
The Federal Labor Relations Authority has upheld an arbitrator’s ruling in a case brought by AFGE that found the Broadcasting Board of Governor’s Office of Cuba Broadcasting (OCB) illegally used a reduction in force action to fire union activists and other employees who had been outspoken critics of the agency. In a November 2011 decision, an arbitrator ruled that former OCB Director Pedro Roig had ordered the RIF and conducted it in such a way to target employees who had spoken out to Government Accountability Office investigators. The arbitrator discounted agency claims that the RIF was necessary because of budget shortfalls and lack of work, finding compelling evidence that Roig rejected attempts to explore cost savings in other areas before implementing a RIF, because he wanted to use budget shortfalls to target employees. The agency also refused the union’s demand to bargain over the impact of the RIF as required under the negotiated labor-management agreement. The agency had appealed the arbitrator’s ruling, but the FLRA rejected every argument made by the agency. AFGE Assistant General Counsel Leisha Self, who represented the AFGE Local 1812 members in their grievance, said that the decision should put every agency on notice that they cannot use budget shortfalls or funding cuts as an excuse to go after specific federal workers who the agency doesn’t like. The FLRA’s decision should have cleared the way for the 16 employees who were separated or otherwise affected during the RIF to be reinstated without loss of seniority or benefits. However, BBG has appealed the FLRA’s ruling to the D.C. Court of Appeals, which will result in further delay for the employees.
DO YOU OR YOUR LOCAL NEED REPRESENTATION? The Legal Representation Fund now refunds to AFGE local unions $2,000 from the Fund, in winning cases handled by AFGE attorneys in which attorney’s fees are awarded and deposited into the Fund. These refunds help to offset some of the costs incurred by the Local going to arbitration. For more information on this unique AFGE program, which provides a free attorney for your back pay arbitrations, email AFGE’s Office of General Counsel at backpay@afge.org.

Save the Hot Springs VA, Sign our Petition

AFGE is working with The Veterans Town to gather signatures for our online petition on Care2.com, a petition site that allows the public to access a wide range of petitions. Help the cause by signing the petition “Help Veterans- Save the Hot Springs VA!” by clicking on the link below.

The Department of Veterans Affairs has proposed shuttering this facility, which is part of the Black Hill Health Care System, covering South Dakota, and portions of Nebraska, North Dakota, Wyoming and Montana. The dismantling of this facility would force veterans to attend other facilities in the network that are between 50 and 100 miles away or be pushed to private sector health care centers that may lack the expertise in treating veterans. The more signatures we gather, the greater the chance that the VA will reconsider its decision to shut down the Hot Springs VA.

Sign here: http://www.thepetitionsite.com/915/200/647/help-veterans-save-the-hot-springs-va/

Hundreds rally in front of White House demanding an end to the discriminatory downgrade of VA employees

Hundreds of protestors packed Lafayette Square on Wednesday for AFGE’s rally against the discriminatory downgrade of VA employees. In an event that took activists from the steps of the Department of Veterans Affairs building to the shadow of the White House, protestors from more than 20 states marched and called for a moratorium on the arbitrary position downgrades, as well as the resignation of John Sepulveda, the assistant secretary for Human Resources and Administration for the Department of Veterans Affairs and head of labor-management relations. AFGE National President John Gage spoke about his dealings with the agency and trying to make his grievances known. He talked about how he was continually met with broken promises and outright “lies” from Sepulveda, resulting in the large crowd erupting in chants demanding Sepulveda to resign from his position.

“VA employees take care of the troops coming back from Iraq and Afghanistan and from other parts of the world where they are deployed, and they do a tremendous job supporting them,” said Dwight Bowman, AFGE’s District 14 National Vice President. “But in order for them to be able to do the job, they have to have decent pay just like everybody else because they have families to support. They are just an integral part of everything that goes on.”

The downgrades are targeting the lowest pay grade levels within the agency, but the agency has failed to prove that they will improve the functionality or finances of the VA. Activists argued that these potential cuts could mean the difference between workers being above or below the poverty line.

“We want to make the community aware, make the country aware, and certainly get the attention of the Veterans Administration in that we’re not going to stand by and let them cut the bottom of the pay scale,” said Colleen Stewart, a VA nurse from Salisbury, N.C.

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AFGE Celebrates National Nurses Week with Renewed Fight to Strengthen Voice at Work for Federal Health Care Professionals

The American Federation of Government Employees (AFGE) is proud to honor the work of nurses throughout the federal government as it celebrates National Nurses Week, May 6–May 12. AFGE represents thousands of nurses nationwide at VA medical centers, military hospitals, federal correctional facilities and other federal health care sites. These dedicated health care professionals are on the front lines every day delivering specialized, high quality care to patients of all ages with complex medical and mental health needs.

A strong voice in the workplace is essential to the ability of federal sector nurses to deliver safe, quality care, and also is a valuable recruitment and retention tool for employers. AFGE applauded the Obama administration for its December 2009 Executive Order on Labor-Management Forums (E.O. 13522) that serves as an effective antidote to anti-union labor relations that exclude the input of front-line workers. Sadly, some federal employers retain policies that weaken the voice at work of health care professionals. AFGE is responding on multiple fronts to change these counterproductive policies. For example, AFGE and the National VA Council are pursuing legislation to restore full and equal bargaining rights for registered nurses and other Title 38 health care professionals at the VA. The VA continues to impose policies from the prior administration that prevent VA health care professionals from bargaining over routine workplace matters such as schedules, reassignment, and proper payment for weekend and evening work. This extreme and unreasonable interpretation of the law is not what Congress intended when it passed Section 7422 of Title 38 in 1991.

“This overly broad interpretation of the law has made it extremely difficult for the VA to recruit and retain qualified health care professionals,” said AFGE National Secretary-Treasurer J. David Cox. “Management has distorted the intent of this law, silencing employees’ ability to fully exercise their rights. This only hinders the agency’s ability to maintain excellence in care and honor the trust between health care professionals and the veterans they serve.” AFGE and its National VA Council appreciate the leadership of Senator Sherrod Brown (D-Ohio) and Representative Bob Filner (D-Calif.) in introducing legislation again this year to permit bargaining over compensation matters other than setting pay.

Federal nurse issues also are addressed through the AFGE Nurse Steering Committee, led by AFGE District 8 National Vice President Jane Nygaard. The Steering Committee convenes monthly to address legislative and legal concerns, and disseminate information to AFGE members and lawmakers. Bargaining rights for VA nurses has been a top issue for the committee, along with legislation to provide true overtime for nurses within the Bureau of Prisons and Department of Defense, safe patient handling and ensuring safe staffing levels for nurses who work throughout the federal government.

“This committee plays a vital role in organizing our members and highlighting the unique challenges faced by nurses nationwide,” said Nygaard.  “We will continue to move forward, especially legislatively, to address issues that will strengthen nurses’ voices at work.”

To commemorate National Nurses Week AFGE has launched radio ads in select markets around the country that highlight the work of America’s nurses. The two ads, narrated by Cox and Nygaard, urge listeners to honor the work of our nation’s nurses and support their voice at work within the VA.

Click here to listen to the radio ads.

AFGE, VA SIGN NEW COLLECTIVE BARGAINING AGREEMENT

(Left to Right) Secretary of Veterans Affairs Eric K. Shinseki, AFGE National VA Council President Alma Lee and AFGE National President John Gage at the signing of the new AFGE,VA master agreement.

Officials from the American Federation of Government Employees and the Veterans Affairs Department today signed a new national collective bargaining agreement covering more than 200,000 bargaining unit employees.

The new master agreement strengthens AFGE’s working relationship and partnership with the VA and enhances working conditions for VA’s employees, leaders said.

“This is a morale booster for our employees. A good contract behind our workers gives them the incentive to do their best work,” AFGE National President John Gage said.

Alma Lee, the president of AFGE’s National VA Council, said the new master agreement will ensure a working environment in which employees can focus on providing world-class service to our nation’s veterans.

“This master agreement is on the cutting edge of technology and incorporates wellness, telework, partnership and many other initiatives designed to make the Department of Veterans Affairs an employer of choice,” Lee said during the signing ceremony at the VA headquarters in Washington.
The new master agreement replaces the previous contract signed in 1997. Highlights of the new contract are provisions that:

• Expand opportunities for VA employees to telework, making it easier to balance work-life issues and improving employee morale.
• Add protections to health care workers who are exposed to on-the-job hazards while treating wounded warriors.
• Provide for a clearer understanding of employee rights and protections under Title 38.
• Call for creating new training program for employees to learn new skills, obtain new certifications and advance in their careers.

Click here to view more photos from the signing ceremony.

VA Healthcare Professionals Collective Bargaining Bill Clears First Hurdle

      

AFGE Applauds Senator Sherrod Brown’s Leadership

 AFGE Praises Leadership of Sen. Brown                

 (WASHINGTON) – Today, the Senate Veterans Affairs Committee approved legislation clarifying the right of VA health care professionals to grieve and negotiate over some compensation disputes. The committee’s vote was cheered by the American Federation of Government Employees, AFGE, which represents over 200,000 VA employees, most of whom work in the Veterans Healthcare Administration, VHA.                 

 The union applauded Senator Sherrod Brown (D-OH), who introduced the language as an amendment at the August 5th mark up of the Senate VA Committee. Senators Jay Rockefeller (D-WV), Bernie Sanders (I-VT), Arlen Specter (D-PA),  Roland Burris (D-IL), Jon Tester (D-MT), Jim Webb, (D-VA),  Patty Murray (D-WA) and Mark Begich (D-AK), signed on to the legislation as cosponsors.                  

 “VA health care professionals are committed men and women, who have chosen to dedicate their careers serving those who’ve sacrificed for our nation,” said J. David Cox, AFGE national secretary-treasurer and a former VA nurse for over 23 years. “They deserve the ability to seek redress when pay laws and regulations are not followed, just like their counterparts in other federally-run medical facilities.”                  

 Under current law, VA health care professionals classified as Title 38 employees, do not have the same rights as their counterparts in the Department of Defense or Bureau of Prisons to use their bargaining rights to enforce pay laws and regulations. The current law hampers VA doctors, dentists, registered nurses, physicians’ assistants, chiropractors, optometrists, podiatrists, and dental auxiliaries from exercising their collective bargaining rights when management withholds overtime or weekend premium pay, or wage survey data or does not properly implement performance pay systems enacted by Congress.                  

 Senator Brown’s amendment will allow unions representing Title 38 VA employees to negotiate over some compensation matters, similar to the bargaining rights of Title 5 VA and DoD clinicians. Contrary to some claims put forth by the agency, however, the amendment does not give employees the right to bargain over basic rates of pay, which are set by Congress.                  

  “This bill is not and will never be about interfering with Congress’ right to set federal pay,” said Alma Lee, president of AFGE’s National VA Council. “It is entirely about allowing VA healthcare professionals to exercise their congressionally mandated rights to bargain over other types of compensation.”                  

 In addition to providing equity between Title 38 VA health care professionals and their counterparts in other agencies, the legislation will level the playing field for Title 38 and Title 5 employees in the same agency. Without passage of this legislation, VA employees working side by side lack equal rights. For example, registered nurses cannot enforce their rights to overtime pay while licensed practical nurses have that right. Likewise, VA psychiatrists have no recourse when pay rules are violated, yet VA psychologists working in the same mental health settings have the ability to exercise their collective bargaining rights under Title 5.                  

 The bill could also have benefits with respect to the VA’s ability to recruit and retain quality talent. “In the fierce marketplace for top talent, the VA must be able to compete with the lure of the private sector, where pay and benefits far exceed those in the federal government” said Cox.                  

 “If employees cannot force the VA to comply with the pay laws and regulations that are in place Local VA human resources personnel will continue to abuse ambiguity in the law, undermining the VA’s ability to be a competitive employer,” said Lee.                  

 The legislation will now be sent to the full Senate for a vote. Companion legislation HR 5543 was previously introduced in the House VA Committee by Chairman Bob Filner, (D-CA). The House VA Committee plans to hold a hearing on the legislation following the summer recess.                  

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