Amended Step 3 Grievance on behalf of Attorneys at the Board of Veterans’ Appeals

Dated: January 30, 2023

To: Christopher Santoro, Senior Deputy Vice Chairman, Board of Veterans’ Appeals (“Board”), Department of Veterans Affairs (“VA” or “the Agency” or “the Department”)

Re: Holding attorneys accountable for factors beyond their control and not distributing overtime in a fair and equitable manner due to the policy of crediting work upon signature of the reviewing Veterans Law Judge

From: Marla Woodarek, Esq., Steward, American Federation of Government Employees (AFGE), Local 17, AFL-CIO.

This grievance is 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”). 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 deciding official.

I. Statement of the Grievance

The Board has approximately 1,000 attorneys who draft decisions for VA compensation benefits for Veterans and their families. Decisions are reviewed and signed by Veterans Law Judges (VLJs) or attorneys who perform the work as acting VLJs. Attorneys must produce either 156 signed decisions or 491 issues for the fiscal year, prorated for leave and various non-decision writing activities, to be fully successful in the critical element of productivity. This grievance concerns when attorneys receive credit for their work. The Board’s current policy is to credit work upon VLJ signature rather than upon submission. This policy violates various provisions of our Master Agreement concerning performance and overtime. And the harm is significant.

The Board’s policy of not crediting work upon submission is greatly compounded by their gross misinterpretation and enforcement of the productivity element, often referred to as the annual quota. Although the subject of a separate grievance, the dispute over the enforcement of the productivity element requires a brief discussion to understand this grievance. The productivity element in the attorney performance plan speaks only to the number of signed decisions/issues an attorney is expected to complete within the fiscal year. However, sometime in fiscal year (FY) 2021, without notifying the Union, the Board began implementing a new requirement that attorneys meet their annual quota on a substantially pro rata basis each week and/or each pay period of the fiscal year. The Board mistakenly believes that the following provision allows for this strict enforcement: “Consistent with performance management, the Board may conduct frequent progress checks to ensure each attorney is on pace to meet their annual production requirement.” However, the parties never agreed to define “on pace” as meeting the annual quota on a pro rata basis each week of the performance year. Consequently, by not crediting work upon submission combined with the Board’s weekly enforcement of the annual quota, attorneys are being unfairly disadvantaged and left feeling demoralized. More importantly, though, the Board’s policy of crediting work upon VLJ signature violates Article 27 concerning performance and Article 21 concerning overtime.

The policy of crediting work upon VLJ signature violates the parties’ agreement that employees shall not be held accountable for factors beyond their control.¹ And these factors are many, including the VLJ’s hearing docket, case docket, leave schedule, work ethic, and Veterans law experience. As a result of these factors, submitted decisions often remain in the VLJs possession unsigned for days, weeks, and even months before being signed and credited to the attorney. A VLJ may occasionally return a case to the drafting attorney for revisions, but this is the exception rather than the rule. This policy has unjustly disadvantaged attorneys’ performance evaluations and has therefore interfered with grade promotions and within grade increases. In response to complaints by attorneys and the Union, the Board points to the policy’s good-cause exception in which credit may be given upon case submission when evaluating an attorney’s performance. Nonetheless, management has full discretion to grant or deny a request for an exception.² So even with the good-cause exception, the policy clearly violates the mandate that employees shall not be held accountable for factors beyond their control.

Furthermore, the policy of assigning credit upon VLJ signature violates the parties’ agreement that overtime be distributed in a fair and equitable manner.³ Beginning in June 2022, the Board restored voluntary overtime for attorneys after it had been suspended in March 2020 due to the pandemic. Supervisory Senior Counsel began sending out emails entitled “Weekly OT

^{1 See Master Agreement, Article 27, Section 8.E.
2 Guidance for the Productivity element also provides that, “[b]ased on a showing of good cause, cases/issues submitted and pending signature may be considered in assessing an attorney’s performance, particularly when the unsigned cases/issues will impact the attorney’s performance under the Productivity critical element. Management will determine whether good cause has been shown.” 3 See Master Agreement, Article 21, Section 4.A.}

[overtime] Solicitation” (“directive”) with various eligibility criteria and parameters, none of which were bargained with the Union. Many attorneys are upset about being denied overtime because they were not “on pace,” according to the Board, despite having the requisite number of cases submitted and pending signature.³ Had these cases been properly credited upon submission, overtime would have been granted for many attorneys, which also helps the Board meet its mission of reducing the backlog.⁴

To remedy the above violations, the Agency must adopt a policy of crediting work upon submission. Doing so would stop holding employees accountable for factors beyond their control and ensure that overtime is distributed in a fair and equitable manner.

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 crediting work upon VLJ signature rather than upon submission, the Department violated, and continues to violate, the following:

• Master Agreement, Article 2: requiring the Agency to comply with federal law and regulations;
• Master Agreement, Article 27, Section 8.E: “When evaluating performance, the Department shall not hold employees accountable for factors which affect performance that are beyond the control of the employee.”
• Master Agreement, Article 21: requiring that voluntary overtime opportunities be extended pursuant to an eligibility roster bargained at the local level according to seniority;
• Master Agreement, Article 21: requiring that voluntary overtime opportunities be distributed in a fair and equitable manner;
• Master Agreement, Article 23, concerning merit promotion;
• Master Agreement, Article 40, concerning within-grade increases;
• Master Agreement, Articles 47 and 49: requiring the Agency to comply with agreed upon procedures for bargaining;
• 5 U.S.C. §7116(a)(1) and (a)(5): requiring the Agency to consult and negotiate in good faith with the Union; and,
• Any other relevant articles, laws, regulations, customs, and past practices not herein specified.

^{3 See Master Agreement, Article 21, requiring that that voluntary overtime opportunities be extended pursuant to an eligibility roster bargained at the local level according to seniority.
4 The Board is also ignoring the U.S. Office of Personnel Management’s pronouncement that offering voluntary overtime to employees is consistent with President Biden’s priority of developing an engaged, innovative, and productive workforce because overtime is a benefit, improves morale, and reduces new hire costs. See M-21-25 Memorandum for the Heads of Executive Departments and Agencies, June 10, 2021.}

III. Statement of Remedy

The Union asks that, to remedy the above situation, the Department agree to the following:

• Credit work upon submission rather than upon VLJ signature;
• To bargain with the Union over changes to the Board’s overtime policy;
• To fully comply with its contractual obligations under Articles 2, 21, 47, and 49 of the Master Agreement and its statutory obligations under 5 U.S.C. §7116(a);
• To distribute an electronic notice posting to all bargaining unit employees concerning the Agency’s failure to satisfy bargaining obligations with the Union;
• To make whole any bargaining unit employee adversely affected by the Agency’s policy of assigning credit upon VLJ signature, including but not necessarily limited to backpay (including attorneys’ fees) for those improperly denied promotions, within-grade increases, and overtime opportunities; and,
• To 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 me at marla.woodarek@va.gov.

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