The memorandum below addresses the failure of the Board of Veterans’ Appeals (BVA) to provide appropriate proration to attorneys and other bargaining unit employees for work stoppages and delays caused by technology issues. The memo highlights the impact of IT problems on productivity, the existence of a Memorandum of Understanding (MOU) governing proration, and the continued systemic issues in fiscal year 2023. It asserts that the current productivity standards are unreasonable due to technology-related work stoppages and slowdowns, violating the Master Agreement, Article 27 of the MCBA, and relevant laws and regulations. The Union requests appropriate proration, a time-and-motion study, compensation for affected employees, compliance with obligations, and any other necessary remedies.
Step 3 Grievance on behalf of bargaining unit employees at the Board of Veterans’ Appeals
Dated: May 16, 2023
To: Christopher Santoro, Senior Deputy Vice Chairman (DVC), Board of Veterans’ Appeals (Board/BVA), Department of Veterans Affairs (“Department,” “Agency,” or “VA”)
Re: Failure to Provide Appropriate Proration in FY 2023 to BVA Attorneys and other Board BUEs for Systemic Work Stoppages and Delays Caused by BVA Technology Issues
From: Douglas E. Massey, Esq., President, American Federation of Government Employees (AFGE), Local 17, AFL-CIO.
This is a grievance filed under the provisions of Article 43, Section 7 of the Master Agreement Between the Department of Veterans Affairs and the American Federation of Government Employees (2011) (“Master Agreement” or “MCBA”). In accordance with Article 43, Note 5, this Grievance is initiated at Step 3 because the requested relief and corrective action is beyond the authority of any Step 1 or Step 2 supervisor.
I. Statement of the Grievance
This is a class action grievance filed on behalf of attorneys and other employees in our bargaining unit at the Board. As to Board attorneys, they prepare VA benefits decisions for signature by Veterans Law Judges (VLJ). Other non-attorney employees conduct administrative tasks related to Board operations. One critical element of the Board attorney performance plan is Productivity. Productivity is measured using spreadsheets updated every pay period (biweekly), with proration provided for categories including leave, IT downtime, etc. The annual quota is 156 decisions, which is 3 cases for every 40 hours of work subject to proration. Attorneys can also meet their annual quota be completing 491 issues. Other Board bargaining unit employees are also subject to quota requirements, which are difficult to achieve with malfunctioning IT systems.
On September 28, 2020, Board management and Local 17 signed a Memorandum of Understanding (MOU) governing the critical element of Productivity. That MOU has remained in effect since October 1, 2020 and provides that “[a]n attorney’s productivity goal will be prorated for time lost due to all Information Technology (IT) problems resulting in a total work stoppage and, as defined by Board management, a near work stoppage.” Other non-attorney employees have productivity embedded in their performance standards as well.
The Board experienced wide-spread IT problems last summer. Consequently, Senior Deputy Vice Chairman Christopher Santoro sent a Board-wide email on August 30, 2022, advising that all full-time attorneys would receive 40 hours of proration for the fiscal year to reflect the impact of technology issues. The Union is unaware of any consideration afforded non-attorney employees. The impacted attorneys and the Union were grateful for that fair consideration. Unfortunately, however, these systemic issues have continued through fiscal year 2023.[1] In fact, they are more disruptive than at any time during the past three years. Accordingly, because these IT issues have not been resolved, a Board-wide grant of proration should once again be provided.
Indeed, reports to the Union from employees and the experiences of Local 17 officials who work as Board attorneys indicate that the systemic technology issues have worsened during FY 2023. There are significant and widespread issues with both Caseflow (used to review claims files) and the interactive decision template or IDT (used to prepare Board decisions). Even the simple act of cutting and pasting from one document into another can cause the VA issued laptops to freeze. Many attorneys report multiple daily reboots of their VA issued laptops are necessary due to IT issues. Additionally, system latency results in vastly reduced productivity by significantly slowing the rate that attorneys can review a claims file due to issues with documents opening on Caseflow. Widespread issues with IDT, based on Microsoft Word, have also been noted and have resulted in reduced productivity due to constant system crashes. Board attorneys are required to open “tickets” with the VA IT Helpdesk to document IT issues. Often, the “tickets” are closed without further action. Opening and documenting “IT tickets” is time consuming.
The intent of the current MOU governing proration for attorneys is to make sure that time lost due to factors beyond their control, such as IT outages, are appropriately prorated. The Master Agreement also mandates that the Agency shall not hold employees accountable for factors that affect performance that are beyond their control. Master Agreement, Article 27, Section 8E.5. Moreover, U.S.C. §4302(b)(1) provides that federal agencies are responsible for “establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . related to the job in question . . . .”. See also 5 C.F.R. part 430. Performance standards must therefore be reasonable, realistic, and attainable to accurately assess employee performance.
The current productivity standards are not currently reasonable, realistic, or attainable due to systemic technology issues with Caseflow, IDT, VACOLS, and other Board technology programs that result in significant amounts of lost time beyond the control of employees who are subject to quotas and other performance measures hinged on functional IT platforms. Accordingly, proration should be provided to compensate for Board technology-related work stoppages and slowdowns.
II. Statement of Violation
The Union asserts the right to amend this Grievance if violations of any other applicable sections of the contract, laws, or regulations are discovered. By not providing appropriate proration to Board attorneys and other Board employees for work stoppages and delays caused by technology issues beyond the control of employees, the Department violated, and continues to violate, the following:
- Article 27 of the MCBA: which governs the process for assessing bargaining unit employee performance and the taking of performance-based actions;
- Article 27 of the MCBA: requiring that circumstances beyond the control of the employee are not held against the employee in evaluating performance;
- The 2020 MOU governing proration policy agreed to between the parties; and
- any other relevant articles, laws, regulations, customs, and past practices not herein specified.
III. Statement of Remedy
The Union asks that, to remedy the above situation, the Department agree to the following:
- Provide appropriate proration to all bargaining unit employees with a production requirement in the in the performance plan to reflect the amounts of work stoppages and delays caused by technology issues;
- Perform a time-and-motion study to determine appropriate performance standards, and to modify existing standards to ensure they accurately reflect the systemic nature of the work stoppages and delays caused by Board technology issues;
- Make whole any employee adversely affected by a lack of appropriate proration for work stoppages due to technology issues, to include, but not limited to, back pay, restored leave, performance award payouts, missed overtime, missed career-ladder or merit promotions or within grade increases, and attorneys’ fees;
- Fully comply with its obligations under Articles 27; the 2020 MOU, and any and all other relevant articles, laws regulations, and past practices not herein specified;
- Agree to any other remedies appropriate in this matter.
The time frame for resolution of this matter is not waived until the matter is resolved or settled. If you have any questions regarding this Grievance, please contact the undersigned.
_________________
Douglas Massey, President AFGE Local 17
[1] The 2023 fiscal year began on October 1, 2022.
