In a major victory, Local 17 is proud to announce that an Arbitrator has decided in Local 17’s favor regarding the arbitration outlined in detail below. If you are a Board attorney and have been adversely impacted in any way by briefing hearing cases, please contact Local 17.
As a result of this determination, the Board is required to post a notice to employees. We have posted it here for you, but it will also be posted by the Board via SharePoint. You can read the notice and download a PDF copy below.
- NOTICE TO EMPLOYEES
- FEDERAL MEDIATION AND CONCILIATION SERVICE
- DECISION AND AWARD
- INTRODUCTION AND STATEMENT OF THE ISSUE
- ARTICLE 2 – GOVERNING LAWS AND REGULATIONS
- ARTICLE 9 – CLASSIFICATION
- ARTICLE 27 – PERFORMANCE APPRAISAL
- ARTICLE 44 – ARBITRATION
- ARTICLE 47 – MID TERM BARGAINING
- ARTICLE 49- RIGHTS AND RESPONSIBILITIES
- The Duties of the Attorney-Advisors and Extent to Which they Prepared Prehearing Briefs in the Past
- The FY 2021 Negotiations Over the AAs’ Performance Standards
- Download Arbitration Decision PDF
NOTICE TO EMPLOYEES
An Arbitrator has found that the Board of Veterans Appeals violated the Federal Service Labor–Management Relations Statute and the 2022 Master Agreement between the Department of Veterans Affairs and the American Federation of Government Employees and has ordered the Board to post and abide by this notice.
WE HEREBY NOTIFY EMPLOYEES THAT:
The Board shall cease and desist from:
- Requiring Attorney-Advisors (“AAs”) to prepare prehearing briefs unless and until the Board meets its obligation to provide Local 17 of the AFGE, the exclusive representative of the AAs, reasonable advance notice of its plan to implement such a practice and, upon Local 17’s request, bargains with it in good faith over the procedures to be observed in implementing such change and on appropriate arrangements for employees affected thereby.
- In any like or related manner interfering with, restraining or coercing its bargaining unit employees in the exercise of the rights assured them by the Statute.
The Arbitrator has also ordered the Board to make whole those AAs who demonstrate a causal link between the Agency having assigned them since the beginning of FY 22 to prepare hearing briefs and monetary losses they may have suffered as a result. Such losses may include, but are not limited to, lost performance bonuses and missed pay and grade increases resulting from the requirement to prepare prehearing briefs.
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
FEDERAL MEDIATION AND CONCILIATION SERVICE
|In the Matter of Arbitration Between:
|American Federation of Government
|FMCS Case No. 220104-02289
|Employees, Local 17,
|Arbitrator: Elliot H. Shaller, Esq.
|U.S. Department of Veterans Affairs,
|Date: May 15, 2023
|Board of Veterans Appeals,
DECISION AND AWARD
For the Union: April L. Fuller, Esq., Partner, Roberts Labor Law and Consulting, L.L.C. For the Agency: Keta J. Barnes, Esq., Agency Attorney
INTRODUCTION AND STATEMENT OF THE ISSUE
Local 17 of the American Federation of Government Employees (“Union”) initiated this arbitration against the United States Department of Veterans Affairs, Board of Veterans Appeals (“BVA” or “Agency”). The arbitration arises from a grievance the Union filed alleging that the Agency violated various statutory and regulatory provisions and the parties’ Master Agreement, by unilaterally changing performance standards for bargaining unit members occupying the position of Attorney-Advisors (“AAs”).
The parties differed over the statement of the issue. Under Article 44F of the Master Agreement, if the parties fail to stipulate on the statement of the issue, the Arbitrator determines the issue to be heard. Based on the record, I find that the issue is whether the Agency violated the Master Agreement and/or any law, rule, or regulation when it: 1) required Attorney-Advisors to complete hearing briefs without fulfilling the Agency’s bargaining obligation with the Union; and 2) informed Agency employees that the Union unilaterally withdrew from bargaining.
Arbitration hearings were held on June 3, 2022 and September 15, 2022. The parties were represented by counsel and afforded a full and fair opportunity to present witnesses, conduct direct and cross-examination, and present documentary evidence and argument. A stenographic record was made of the hearing and the transcript constitutes the official record. The parties submitted post-hearing briefs on February 16, 2023, at which time the record was closed.
The Parties and the Collective Bargaining Agreement
BVA is an administrative appeals board of the U.S. Department of Veterans Affairs that adjudicates military veterans’ benefit claims, such as for disability compensation, medical benefits, and military pensions. It issues decisions on appeals by veterans of decisions made on their claims at local or regional VA offices.
As of the date of the hearing, the BVA employed about 100 Veteran Law Judges (“VLJs”) to hear and decide cases and about 900 Attorney-Advisors (“AAs”) whose main job is to draft decisions for those judges. The Union is the exclusive bargaining representative of the AAs. The terms and conditions of their employment are governed by a collective bargaining agreement, i.e., the “Master Agreement between the Department of Veterans Affairs and the American Federation of Government Employees 2022.” (“Master Agreement”). The relevant provisions of the Agreement for purposes of this case are as follows:
ARTICLE 2 – GOVERNING LAWS AND REGULATIONS
Section 1 – Relationship to Laws and Regulations
In the administration of all matters covered by this Agreement, officials and employees shall be governed by applicable federal statutes. They will also be governed by government-wide regulations in existence at the time this Agreement was approved.
ARTICLE 9 – CLASSIFICATION
Section 1 – General
- Each position covered by this Agreement that is established or changed must be accurately described in writing and classified to the proper occupational title, series, code, and grade.
- Title 5 position descriptions (PD) must clearly and concisely state the principal and grade controlling duties, responsibilities, and supervisory relationships of the position.
- *** The Department reserves its right to assign work that is not in the PD . If that occurs on a regular basis, the PD must be revised to accurately reflect the job duties.
- Position descriptions will be kept current and accurate, and positions will be classified properly. *** Changes to a position will be incorporated in the PD to assure that the position is correctly classified/ graded to the proper title, series, and grade . ***
ARTICLE 27 – PERFORMANCE APPRAISAL
Section 2- Definitions
C. Critical Element
A work assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee’s overall performance is unacceptable. ***
I. Performance Standard
The management-approved expression of the performance threshold(s), requirement(s), or expectation(s) that must be met to be appraised at a particular level of performance. A performance standard may include quality, quantity, timeliness, and manner of performance. Performance standards can be written for more than one level of achievement where appropriate. However, performance standards must be written at least at the fully successful achievement level.
Section 5 – Performance Standards
- The local union shall be given reasonable written advance notice (no less than 15 calendar days) when the Department changes, adds to, or establishes new elements and performance standards. Prior to implementation of the above changes to performance standards, the Department shall meet all bargaining obligations.
G. Employees will be evaluated based on a comparison of performance with the standards established for the appraisal period. Elements and standards shall be based on the requirements of the employee’s position.
ARTICLE 44 – ARBITRATION
- The parties will attempt to submit a joint statement of the issue or issues to the Arbitrator. If the parties fail to agree on a joint submission, each shall make a separate submission. The Arbitrator shall determine the issue or issues to be heard.
ARTICLE 47 – MID TERM BARGAINING
- Proposed changes in personnel policies, practices, or working conditions affecting the interests of one local union shall require notice to the President of that local. ***
- Upon request, the parties will negotiate as appropriate. ***
- Ground Rules for local bargaining shall be established by the parties at the Local level.
ARTICLE 49- RIGHTS AND RESPONSIBILITIES
Section 4 – Notification of Changes in Conditions of Employment
- The Department shall provide reasonable advance notice to the appropriate Union official(s) prior to changing conditions of employment of bargaining unit employees.
The Duties of the Attorney-Advisors and Extent to Which they Prepared Prehearing Briefs in the Past
The key facts in this case concern the job duties of the AAs and whether the Agency improperly changed their conditions of employment in late 2020 by requiring them to prepare prehearing briefs (also referred to as “hearing briefs”). Each VLJ works with a team of about eight AAs. It is undisputed that the AAs’ principal job duty is to draft appellate decisions for the judges to whom they are assigned. Performing that duty entails reviewing the evidence file containing the veteran’s medical documents, reviewing the procedural documents and hearing transcript, applying the law to facts, drafting the decision, submitting the decision for the VLJ’s signature, and discussing the decision with the VLJ if necessary. Generally, the AAs do not attend the hearings.
The hearing brief is prepared prior to the hearing to assist the VLJ in its conduct. According to the record evidence, the hearing brief, depending on the specific requirements of each VLJ, may include a summary of the issues on appeal, a summary of the relevant evidence, an explanation of why the claim was denied at the regional level, and a briefing on issues that may impede the hearing, such as evidence that may be missing from the file. It is undisputed that it does not include any legal analyses or recommendations.
The parties dispute whether the AAs’ position descriptions (“PDs”) and/or Performance Standards cover the task of preparing hearing briefs. There are separate PDs for each of the four pay grades that AAs occupy, ranging from GS-11 to GS-14. The PD for the GS-11 and GS-12 positions, dated April 2010, states, in pertinent part, as follows:
- Reviews and evaluates the evidence in claims folders and prepares tentative appellate decision in written form for consideration by the Board section. ***
- Conducts research on occasion on questions encountered in case review or as requested by the Section. Drafts legal briefs outlining the facts at issue and containing recommendations for appropriate action.
The PD for the GS-13 position, dated April 2010, states, in pertinent part, as follows:
- Reviews and evaluates the evidence in claims folders. Applies the laws administered by the Veterans Administration to the facts in the individual cases; then, prepares tentative decision in written form for consideration by the Board Section. ***
- Conducts research on occasion on questions encountered in case review or as requested by the Section. Drafts legal briefs outlining facts at issue and containing recommendations for appropriate action.
D. When so requested by the Chief Member, attends hearings on appeals conducted before the Board in particularly involved cases for the purpose of assisting the Section members in e examining witnesses so as to assure that all relevant evidence is elicited.
The PD for the GS-14 position, dated December 2013, states, in pertinent part, as follows:
- Prepares decisions on extremely complex and controversial appeals, including those involving formal personal hearings held before members of the Board.
- Attends formal personal hearings with the Board member.
All of the AA PDs included the following provision:
In the context of the incumbent’s current responsibility, supports the Board of Veterans Appeals’ efforts to provide “world class” service to customers by performing the following duties.
Works as a member of a BVA team….. [C]ontributes constructively to help advance the overall mission and objectives of the Board and the efficiency of its operations. Participates in appropriate … and new and varied assignments. Works cooperatively with others in the Team… in order to ensure that individual effort is integrated into an overall product or major component thereof.
Performance standards are used to evaluate the AAs’ performance on their annual appraisals. The performance standards for fiscal year (“FY”) 2021 included five critical elements, i.e., Productivity, Case Management, Quality, Customer Service and Organization Support, and Information Security. Under the Productivity Element, the AA was required to produce a certain number of signed decisions (i.e., 156) to be rated “Fully Successful” and a higher number of signed decisions (i.e., 185) to be rated “Exceptional.” This production quota is subject to “proration,” a reduction in the required number to compensate for approved leave time or decision writing time lost for other legitimate reasons, such as information technology problems and training.
Relevant to the dispute in this case are the criteria described under the Customer Service and Organizational Support critical element for earning a Fully Successful or Exceptional rating. It stated as follows:
Fully Successful: The attorney exhibits VA’s core values of Integrity, Commitment, Advocacy, Respect and Excellence (I CARE). The attorney functions as a team member. *** Requests for assistance, to include but not limited to requests for changes to decisions from judges or requests for clarification from administrative staff are provided in timely and courteous fusion.
Exceptional: In addition to meeting the criteria for the fully successful rating, the attorney regularly goes above and beyond in their efforts to advance the organization, mission and or culture. Additionally, the attorney actively contributes to the organization by engaging in activities which simultaneously serve to promote the development of others and meet the needs of veterans and their families by supporting the organization’s mission of issuing quality and timely decisions and conducting hearings.
Robert Scharnberger, Deputy Vice Chairman (“DVC”), testified that the PDs and the Performance Standards cover the task of preparing hearing briefs. Regarding the PDs, he cited the listing of “drafting of legal briefs” as a major duty. Regarding the performance standards, DVC Scharnberger cited the language of the Customer Service and Organization Support critical element requiring the AA to function as a “team member” and “support the organization’s mission of issuing quality and timely decisions and conducting hearings.” He explained that the AA is a member of team that includes the VLJ, and preparing herring briefs supports the Agency’s mission.
However, the Union’s witnesses, who are current or former AAs, testified that except in connection with “Travel Boards,” prior to about December 2020 they did not and were not required to prepare hearing briefs. Travel Boards refer to those appeals hearings the Agency conducts at regional offices to which the VLJ travels. Before 2014, the files for these cases were only available in hard copy at the regional offices. As a result, the VLJs could not do the prehearing work they typically do for hearings at headquarters in advance. For that reason, AAs would accompany their VLJs on Travel Boards to assist the VLJ in preparing for the hearing, including by reviewing the paper files and preparing hearing briefs. AA participation on Travel Boards was purely voluntary and, in fact, AAs had to compete to be selected for what was viewed as a privilege. Sometime in about 2014 the Agency began using electronic files, which enabled the VLJs to review the file in advance of the hearing before traveling. As a result, the AAs ceased participating in Travel Boards.
The record indicates that once the AAs stopped participating in Travel Boards, AAs rarely, if ever (before late 2020), prepared hearing briefs. In this regard, Union President Doug Massey testified that, in the 25 years he worked as an AA, during which time he worked for eight VLJs regularly and another ten VLJs intermittently, except for when he participated in Travel Boards, he was never assigned to prepare hearing briefs.
Calanit Kedem testified that he started working as an AA in November 2000. He became the Union’s First Vice President in 2018 and has been on 100 percent official time since then. He stated that in the eighteen years he worked as an AA, during which he worked for fifteen VLJs, except for when he participated in Travel Boards, he never had to prepare a hearing brief.
Benton Komins, who has worked at the Agency as an AA since November 2016, (and is currently a Union advocate on 50% official time), testified that, during his seven years at the Agency, he has worked for six different VLJs and that he has never had to prepare hearing briefs.
Eric Sametshaw, an AA at the Agency since March 2019, testified that, prior to December 2020, he never had to prepare hearing briefs.
VLJ John Jones worked as an AA from 1995 to 2010. He testified that he prepared hearing briefs when he worked on Travel Boards. When asked if he had otherwise prepared these briefs, he stated that he suspected that he did but had no specific recollection of doing so. He added that, “It wasn’t a practice that I recall my judges doing on a regular basis.”
Jenna Brant, who currently serves as a Supervisory Senior Counsel, worked as an AA from September 2013 until December 2018. She testified that she did not recall ever preparing a hearing brief.
DVC Scharnberger worked as an AA from 1999 to 2005. He testified that he prepared hearing briefs when he participated in Travel Boards but did not recall doing so otherwise.
The FY 2021 Negotiations Over the AAs’ Performance Standards
During the parties’ negotiations over the performance standards for FY 21, the Agency proposed and the parties agreed to lower the quota of signed decisions AAs had to write to be rated “fully successful” on the productivity critical element in their performance appraisals. Nicholas Keogh, the Union’s Third Vice President and who served as the Union’s chief negotiator, testified that the Agency indicated that the reason it was lowering the quota was to account for the large backlog of cases that accumulated during the beginning of the COVID pandemic when the Agency was not holding hearings. Because of this backlog, VLJs did not have sufficient time to sign enough decisions to ensure their AAs could meet the production quota. According to Mr. Keogh, during the negotiations, management proposed to allow AAs at
the GS-14 level to serve as Acting VLJs to assist in hearing cases to enable the Agency to move through the backlog, and the Union did not object to this proposal. Union President Douglas Massey testified that the Agency did not inform the Union that it proposed lowering the quota because it was planning to shift prehearing brief work from VLJs to AAs. The Agency did not call any witness who participated in the FY 21 negotiations to testify and neither party introduced any documentary evidence on the bargaining history.
In September 2020, after the bargaining on the FY21 Performance Standards was completed, Ken Arnold, the Agency’s Chairman, sent an email to the AAs and VLJs regarding the lowering of the production quota. In pertinent part it stated as follows:
This will require our judges and many counsel to shift some of their time to supporting our hearing docket. In recognition of that, we chose to lower the goals and associated performance standards related to decision-writing. Bottom line up front, we dropped the minimum individual expectations for the number of decisions signed each year from an average of 3.25 per week to 3 decisions per week.
(Emphasis in original)
DVC Scharnberger (who did not participate in the negotiations) testified that he interpreted this email to mean that, because the Agency would be doing more hearings, it expected the AAs to support the VLJs in conducting them, including by preparing hearing briefs and, in return, the production quota was lowered. However, Mr. Keogh testified that this email reinforced his understanding that some AAs at the GS-14 level could now volunteer to act as VLJs and hear cases to clear out some of the backlog, and that is why the Agency lowered the production quota.
Sometime in the latter part of 2020, Agency management informed the VLJs that they could assign AAs the task of preparing hearing briefs. DVC Scharnberger testified that, although VLJs always had the right to do so, he did not believe many of them were aware of that. There is no evidence that the Agency informed the Union that the VLJs would now start having their AAs do hearing briefs.
The record reflects that, at about this time, some of the VLJs started assigning their AAs the task of preparing hearing briefs. One of the VLJs, Eric Leboff, emailed his AA team on October 2, 2021 that because of an increased workload, he would begin delegating to them the task of preparing hearing briefs which, according to the record, he had not previously done. In the email, VLJ Leboff apologized for the “extra work” this would cause.
VLJ Jones testified that at about this time when hearings resumed after being halted due to COVID and because his caseload had nearly doubled, he started requiring his AAs to prepare hearing briefs. He further testified that, in approximately October 2021 when his caseload was reduced, he stopped assigning AAs to prepare hearing briefs and started taking volunteers instead.
Mr. Kedem testified that it was not until August 2021 that the Union discovered that some VLJs required their AAs to prepare hearing briefs. On August 30, 2021, he emailed Vice Chairman Ken Arnold and then Principal Deputy Chairman Chris Santoro protesting that action, asserting that preparing hearing briefs was not a job requirement under the performance standards. Mr. Kedem further stated in the email that, if the practice were to continue, the Agency was required to provide notice and an opportunity to bargain and demanded that the practice cease and desist in the meantime. On August 31, 2021, Mr. Kedem sent another email to Vice Chairman Arnold and Principal Deputy Chairman Santoro iterating his opposition to VLJs assigning AAs the task of preparing hearing briefs. Mr. Kedem noted that the performance standards for VLJs indicate that they are responsible for hearing preparation and do not contemplate that this duty may be transferred to others.
On the same day, DVC Scharnberger emailed the Union proposed performance standards for FY 2022. The proposal called for changes in the production standard and proration but did not include any language about hearing briefs.
On September 2, 2021, Vice Chairman Arnold responded to Mr. Kedem’s emails. He stated that the Agency believed that preparing hearing briefs was part of the AAs’ duties and encompassed within both their PDs and the current performance standards. Specifically, in pertinent part, the email stated as follows:
The attorney-advisor PDs for each grade level (GS-11 through GS-14) use different language when describing the major duties and responsibilities of the positions; however, all of them fairly encompass researching case files and preparing briefs for a judge to use in support of hearings. Some require actual attendance at hearings to assist VLJs. That said, I do think it’s time for us to re-fresh those PDs to better reflect the operational realities we face….
In his email, Chairman Arnold cited the language in the performance standards that to achieve a rating of “Exceptional” on the critical element of Customer Service and Organizational Support, the AA had to “actively contribute to organization by engaging in activities [that support] the organization’s mission of issuing quality and timely decisions and conducting hearings.”
The next day, September 3, 2021, DVC Scharnberger emailed the Union amended AA Performance Standards for FY22. Mr. Scharnberger stated in the email that the Agency was “adding some language to the Customer Service and Organizational Support element to make it clear that attorneys should assist with hearing preparation.” The new language on this critical element stated as follows:
The attorney assists with preparing for hearings when needed by preparing prehearing bench briefs or memos for the Judge in advance of the hearing as well as attending hearings when appropriate and otherwise providing support for the Judge.
Later that day, President Massey sent a memorandum to DVC Scharnberger stating that the Union was demanding to bargain the FY 2022 Performance Standards under the provisions of Article 47, Section 4 of the Master Agreement.
On September 9, 2021, the Agency briefed the Union on the proposed changes to the performance standards. At the briefing, DVC Scharnberger reiterated that the amendment’s language did not represent the addition of a new duty, but was merely a clarification, as the AAs’ had always done hearing briefs. President Massey testified that he stated at the briefing that the Union was not necessarily opposed to the new standards but sought to bargain over procedures and appropriate arrangements and wanted some proration from the production quota because of the significant amount of time involved in preparing hearing briefs.
On September 13, 2021, the Union filed a grievance (not the grievance that led to this arbitration) over the Agency’s action in requiring AAs to prepare hearing briefs in FY 2021.
The parties held two bargaining sessions, one on September 22 and another on September 27, 2022. At both sessions, the parties discussed groundrules and failed to reach agreement on them. They discussed scheduling a third bargaining session on September 29. According to the record evidence, at the September 27 session, the Agency’s negotiator stated that management did not intend to continue negotiating after September 30, 2021. Mr. Schamberger testified that he thought it important that, if there was to be a change in the performance standards, in fairness to the AAs, they needed to be implemented prior to the start of the new fiscal year on October 1.
After the bargaining session on September 27, Benton Komins, who served as the lead negotiator for the Union at that session, emailed DVC Scharnberger and Ms. Brant, stating that he wanted to confirm that management stated during bargaining that if negotiations did not conclude by October 1, 2021, management “would walk away from the bargaining process.”
On the following day, September 28, DVC Scharnberger emailed the following response to Mr. Komins and President Massey:
As I stated, we do not intend to change the performance standards part way through a performance year. We think our employees deserve clarity about expectations as they begin a new performance year and changing those expectations part way through the year can be confusing and disruptive. Our current standards are already well known to our employees and we are reasonably confident these existing standards will enable the Board to meet the ambitious organizational goals set for us by the Secretary and Chairman for the coming fiscal year. I thought we had mutually agreed to some wording on ground rules that we would continue to negotiate two or three times a week until agreement was reached or management withdraws its original proposal to change the current standards. However, the new performance year is just around the corner and we still appear unable to even agree on just the ground rules for impact and implementation bargaining of our proposal originally provided to the union back in August. It does not seem like we are making a lot of progress towards implementing a new set of standards before the new performance year begins on October one, and I feel like I need to advise the Chairman that we may just need to stick with the existing standard as our best option to achieve our FY22 organizational performance goals. ****
Later the same day (September 28), Mr. Komins emailed a reply to Mr. Scharnberger thanking him “for the clarification” and stating that he “guess[ed] that Jenna [Brant] needs to cancel tomorrow’s meeting.” On September 29, Ms. Brant sent an email to the Union stating that the “[p]er Benton’s email” the meeting that had been scheduled for that day “is being cancelled.” About 25 minutes later, President Massey sent the following email to Ms. Brant and other management officials involved in the negotiations:
That’s not my understanding. Per management’s unilateral proclamation that bargaining had ended, there’s obviously no need to meet. Lest there be any question, canceling the meeting was a mere formality based on management’s decision not to change the standards. Bob’s email from yesterday specifically mentioned that [management] do[es] not intend to change the performance standards….
Neither DVC Scharnberger nor Ms. Brant responded to President Massey’s email. DVC Scharnberger testified that he did not respond because he did not care that President Massey’s statement was inaccurate. Ms. Brant testified that, although it may have been useful for her to respond, she did not do so out of concern that it would antagonize President Massey.
The September 29 negotiation session was canceled and there were no further negotiations. The parties stipulated that the Agency withdrew its initial proposal to change the standards and implemented the FY 21 standards.
On October 4, 2021, President Massey sent an email to DVC Scharnberger, identifying the subject as “Alternate Facts,” quoting from an email that one of the VLJs, Rebecca Poulson, had sent to the AAs on her team. That email stated, in pertinent part, as follows:
I would like to address the email that Doug Massey sent to decision drafting attorneys las week. It contains inaccuracies with respect to the proposed FY 22 attorney performance standards and the bargaining process. *** Unfortunately, the parties were unable to come to an agreement and the union unilaterally decided they were done bargaining
While the earlier grievance over AAs having to do hearing briefs in FY 21 was pending, the Agency suspended the requirement. On October 8, 2021, the Agency denied that grievance. Later that day, Principal DVC Santoro emailed the VLJs, notifying them that the Vice Chairman had denied the grievance and had determined that preparing hearing briefs was a required duty encompassed within the AAs’ Customer Service and Organizational Support performance element. Principal DVC Santoro further stated that the VLJs were now free to begin assigning AAs to prepare hearing briefs. However, he encouraged the VLJs to “exercise circumspection when assigning these to AAs who did not volunteer for the work assignments.” Also, on October 8, 2021, Chairman Arnold sent an email to the AAs notifying them that the performance standards for FY 22 would be unchanged from the FY 21 standards. In pertinent part, his email stated as follows:
Attorney-Advisors will be receiving the attached performance standards for FY2022 from their supervisors. There are no changes from last year. We ultimately decided to keep the same performance standards that were in place for all of FY2021, to include the lower productivity standard we instituted last fall that equated to 3 cases per week (without proration) in lieu of the previous 3.25 cases per week.
*** [O]ur leaders reduced our production goal for this past year in recognition that a trade off was necessary because of our growing hearings workload. *** In announcing my lower goal in my email to you last Fall, I emphasized the increased number of pending hearings would require our judges and some counsel to focus on the hearings portion of our mission. And that was the key to our decision to lower the production standard.***
The Union introduced into evidence emails a few of the AAs submitted responding to an email President Massey had sent to all of the AAs on September 13, 2021 inquiring whether they had been asked or directed to prepare prehearing briefs. By email dated September 30, 2021, one of the AAs, Mikel Espinoza, responded that he has been required to brief 31 cases in the preceding nine months and that it took him about one hour to prepare each one.
Another AA, Cody Sametshaw, emailed President Massey on October 12, 2021, stating that on October 8 he “received a fresh round of hearing case briefing assignments” from his VLJ. Mr. Sametshaw testified that the time it took to draft a hearing brief fluctuated greatly, from ten minutes to an hour, depending on the number of documents and issues involved in the case. He indicated that the briefs did not include legal analyses or recommendations; rather, they were limited to a review of the facts and a summary of the case’s procedural posture.
Another AA, Gordon Fraser, emailed President Massey on October 14, 2021 about how the VLJ he worked for assigned him to prepare about eight to ten hearing briefs a month and that it took him two to three hours to write each one. He further stated that this assignment impeded his ability to meet the production goals and that he might have to work on his off days in order to do so.
Mr. Kedem testified that based on the feedback the Union received, the VLJs had more or less stringent requirements on what information needed to be included in their AAs hearing briefs and that in some cases it would take an hour to several hours to prepare one.
VLJ Jones testified that he instructs his AAs not to take more than ten to twenty minutes to brief a case. However, he stated that he does not record the time his AAs devote to the task and does not know how long it takes. He also testified that other VLJs require their AAs to include more details in the hearing briefs than he does.
Regarding the consequences that may result from the quality of an AA’s work on hearing briefs or their willingness to do them, VLJ Jones testified that each VLJ has discretion on how to respond to an AA’s failure to complete hearing briefs satisfactorily and that AAs who volunteered to do them may receive a boost in their performance ratings. The Union introduced evidence that one VLJ threatened to put an AA on a Performance Improvement Plan (“PIP”) for failing to brief cases to that VLJ’s satisfaction. Ultimately, this AA was not placed on a PIP but was reassigned to work for another VLJ who did not require her AAs to complete hearing briefs.
The Union introduced evidence concerning the VA’s ICARE program. ICARE is an acronym that stands for Integrity, Commitment, Advocacy, Respect, and Excellence, which are the Agency’s core values. Regulations on ICARE are set forth at 38 C.F.R. § 0.601 and state as follows:
VA’s Core Values define VA employees. They describe the organization’s culture and character, and serve as the foundation for the way VA employees should interact with each other, as well as with people outside the organization. They also serve as a common bond between all employees regardless of their grade, specialty area, or location. These Core Values are Integrity, Commitment, Advocacy, Respect, and Excellence. Together, the first letters of the Core Values spell “I CARE,” and VA employees should adopt this motto and these Core Values in their day-to-day operations.
- Integrity. VA employees will act with high moral principle, adhere to the highest professional standards, and maintain the trust and confidence of all with whom they engage.
- Commitment. VA employees will work diligently to serve veterans and other beneficiaries, be driven by an earnest belief in VA’s mission, and fulfill their individual responsibilities and organizational responsibilities.
- Advocacy. VA employees will be truly veteran-centric by identifying, fully considering, and appropriately advancing the interests of veterans and other beneficiaries.
- Respect. VA employees will treat all those they serve and with whom they work with dignity and respect, and they will show respect to earn it.
- Excellence. VA employees will strive for the highest quality and continuous improvement, and be thoughtful and decisive in leadership, accountable for their actions, willing to admit mistakes, and rigorous in correcting them
DVC Scharnberger testified that the Agency expects all employees to observe the ICARE regulations and that a violation is not trivial. He also indicated that the ICARE values apply to all employees, including managers. President Massey asserted in his testimony that the Agency has weaponized ICARE, using it to discipline employees. He cited an instance where the Agency proposed reprimanding him for allegedly violating ICARE values. He asserted that the Agency should be held to the same standard it holds employees.
On October 3, 2021, the Union filed a Step 3 grievance (the one at issue in this case) which it amended on October 19, 2021. It alleged that by unilaterally changing the AAs’ performance standards without bargaining in good faith and then spreading false and defamatory information about President Massey and how the Union unilaterally withdrew from bargaining, the Agency violated: 5 U.S.C. § 7116(a), providing that it is an unfair labor practice to refuse to consult or negotiate in good faith with a labor organization; 5 U.S.C. § 7114, stating that the Union is the exclusive representative of employees in the unit it represents and is entitled to negotiate collective bargaining agreements covering those employees; Article 2 of the Master Agreement, due to its failure to comply with applicable federal statutes and regulations in the administrative matters covered by the agreement, including the Federal Service Labor- Management Relations Statute (“FSLMRS”); and the ICARE regulations, set forth at 38 C.F.R. § 0.601.
The Agency denied the grievance on December 1, 2021. On December 17, 2021, the Union invoked arbitration.
The Union’s Contentions
The following is a summary of the Union’s contentions in this matter.
Under the FSLMRS, 5 U.S.C. § 7114(b), federal agencies have a duty to bargain in good faith with its employees’ exclusive representative over changes to conditions of employment for employees in the bargaining unit the Union represents. This duty goes beyond the negotiation of a collective bargaining agreement and extends to changes in conditions of employment made during the term of the agreement. While the Statute does provide an agency with certain reserved management rights (see 5 U.S.C. 7106(1)), an agency must still bargain over the procedures and appropriate arrangements of its exercise of these rights (See 5 U.S.C. § 7106(b)).
The Federal Labor Relations Authority (“FLRA” or “the Authority”) has held that to determine whether there was a change to conditions of employment, the Arbitrator must determine: “(1) whether there was an actual, agency-initiated change to a personnel policy, practice or matter; and (2) whether the change affected working conditions.” U.S. Dep’t of Homeland Sec. U.S. Customs and Border Protection El Paso, Tex. & AFGE Nat’l Border Patrol Council Local 1929, 72 F.L.R.A. 7, 9 (2021) (“AFGE Local 1929”).
The AAs’ primary duty is to write decisions for the VLJs’ signatures, which they perform after the hearing. Except for Travel Boards, the AAs do not participate in the hearings. The Agency, therefore, made an actual change to personnel practices when it began requiring the AAs to prepare prehearing briefs. The Union’s witnesses (Kedem, Komins, Sametshaw and Massey) testified that they were not previously required to perform this duty. Moreover, the Agency’s witnesses (Jones, Scharnberger, and Brant) testified that when they served as AAs, they were not required to prepare these briefs and, as VLJs, they did not assign the AAs on their team to do so prior to the COVID pandemic. The Union has therefore met the first prong of the Authority’s test, i.e. that the requirement to prepare hearing briefs constituted an actual change to a personnel policy, practice or matter.
Regarding the second prong, whether the change affected working conditions, the Union demonstrated that the new duty of preparing hearing briefs deprived the AAs of time that would have otherwise been available to perform their main duty of writing decisions. Both AA Fraser and AA Sametshaw testified that it took substantial time to prepare hearing briefs, which diverted their time and attention from writing decisions and meeting the production quotas. VLJ Jones testified that he understood that assigning AAs to prepare hearing briefs was something new, and that it caused consternation and anxiety amongst the AAs and impacted their ability to meet their decision-writing quota.
Further, failure to meet the production quota or prepare hearing briefs to the VLJ’s satisfaction could have a negative impact on an AA’s performance appraisal. In this regard, VLJ Jones testified that the submission of hearing briefs that misidentified the issues or was otherwise of poor quality may have a negative effect on the AA’s performance appraisal ratings. Moreover, a less favorable rating could result in the denial of a pay increase, the imposition of a PIP, and might ultimately lead to the AA’s removal. At the same time, according to VLJ Jones, AAs may boost their ratings by volunteering to prepare hearing briefs.
The impact on AAs of the Agency’s change in the conditions of their employment by adding the requirement that they prepare hearing briefs was more than de minimis. The record reflects that preparing a hearing brief took a significant amount of time, although such time varied based on a variety of factors. It thereby increased the AAs’ workload, deprived them of time to work on their principal duty of writing decisions, and put them at risk of being placed on PIPs or disciplined.
The parties are required to negotiate in good faith, which requires a sincere resolve to reach agreement and to meet at reasonable and convenient times and as frequently as necessary. 5 U.S.C. § 7114(b)(1), (b)(3). Integral to discharging this duty is a commitment to completing bargaining with the union prior to implementing changes in established working conditions.
Dep’t of Air Force, Scott AFB and NAGE, Local R7-23, 5 F.L.R.A. 9, 11 (1981). The Agency in this case failed to negotiate in good faith. It admitted that it did not notify the Union when it informed VLJs that they could begin assigning prehearing briefs to their AAs. Further, when on August 31, 2021 the Agency notified the Union of proposed changes in the performance standards for FY22, that proposal did not include language on hearing briefs. The Agency only provided notice of such changes on September 3, 2021 when it sent the Union amended standards.
Further, before bargaining was completed, the Agency declared that it would maintain and rollover the FY21 Performance Standards and withdraw the proposed changes to the FY22 Performance Standards. Despite withdrawing the proposed changes, the Agency continued to assign AAs the task of preparing hearing briefs. The Agency’s failure to fulfill its bargaining obligation with respect to this new duty constitutes an unfair labor practice under 5 U.S.C. §§ 7116(a)(1), (5) and (8).
The Agency violated Articles 47 and 49 of the Master Agreement. Article 49 recognizes that 5 U.S.C. Chapter 71 imposes bargaining obligations on the parties and requires the Agency to “provide reasonable advance notice to the appropriate Union official(s) prior to changing conditions of employment of bargaining unit employees.” Article 47 requires the Agency to notify the President of the local union when it proposes a change in working conditions. In this case, the Agency failed to provide any advance notice when it changed conditions of employment for AAs by adding the new duty of prehearing briefs in late 2020. It instead unilaterally implemented the change and failed to provide notice until September 3, 2021, nearly a year after the AAs had already been required to perform the new duty. Further, while the Agency declared that it was withdrawing the proposed changes to the performance standards for FY 22, which included the language on hearing briefs, it continued to assign AAs to prepare them without completing bargaining.
The Agency’s actions: lacked integrity as it was not in accordance with high moral principles and degraded trust and confidence between labor and management; evinced disrespect for the labor-management relationship; and lacked excellence as the Agency was not striving for or achieving any quality. By its actions, the Agency violated the VA’s ICARE regulations, set forth in 38 C.F.R. § 0.601. The Agency requires its employees to adhere to ICARE standards and has disciplined employees for violating them. The Union maintains that by terminating the negotiations and stating it was withdrawing the proposed FY 22 performance standards, but then implementing them unilaterally in violation of its contractual and statutory bargaining obligations, the Agency violated the ICARE values. The Agency further violated ICARE by spreading false information to the AAs and VLJs to the effect that the Union walked away from the bargaining table.
The Arbitrator should award a status quo ante (“SQA”) remedy requiring the Agency to return to the pre-implementation conditions of employment related to the AAs’ duties. The Authority has held that the determination of whether a SQA remedy is appropriate when an Agency fails to satisfy its duty to bargain over the impact and implementation of its exercise of a management right is based on a consideration of the following factors: (1) whether and when the agency gave notice of the change at issue; (2) whether and when the union requested impact-and- implementation bargaining; (3) the willfulness of the agency’s conduct in failing to properly bargain (4) the nature and extent of the impact experienced by adversely affected employees; and
(5) whether, and to what degree, an SQA remedy would disrupt or impair the efficiency and effectiveness of the agency’s operations. Federal Prison System, Correctional Institution, Petersburg, VA and AFGE, Local 2052, 8 F.L.R.A. 604 (1982). Application of these factors weigh in favor of an SQA remedy in this case.
First, the Agency failed to provide any notice prior to when in late 2020 it started to require the AAs to prepare hearing briefs.
Second, on September 3, 2021, upon receiving the notice of the change from the Agency, the Union promptly demanded to bargain the impact and implementation of the new duties.
Third, the Agency willfully failed to meet its bargaining obligation. Notwithstanding that the Agency asserted that requiring AAs to prepare hearing briefs did not represent a new duty, the Agency incorporated that duty in its proposed amended FY 22 performance standards, claiming this was merely a “clarification.” Then, the Agency withdrew the amended standards but continued to require AAs to prepare hearing briefs anyway.
Fourth, the change had a significant adverse affect on the AAs. By requiring the performance of the new duty without providing any training and disregarding how it impeded their ability to meet the onerous production quota, the Agency added stress and anxiety to the AAs. The AAs were also subject to being placed on PIPs or disciplined if they failed to perform the new duty to their VLJs’ satisfaction.
Fifth, an SQA remedy would not affect the Agency’s ability to carry out its mission of holding hearings and issuing decisions. The Agency did not present evidence that an an SQA remedy would be disruptive.
Alternatively, the Arbitrator should order a retroactive bargaining order.
The Arbitrator should also issue a cease and desist order and require the Agency to post a notice signed by the Chairman regarding the Order. The statute states that if the Authority determines that an agency has engaged in an unfair labor practice, it must issue an order to “cease and desist from any such unfair labor practice in which the agency  is engaged.” 5 U.S.C. § 7118(a)(7)(A). The Authority typically issues cease and desist orders accompanied by the posting of a notice to employees as a remedy where it finds violations of the Statute. F.E. Warren Air Force Base, Cheyenne, Wy. & AFGE Local 2354, 52 F.L.R.A. 149, 161 (1996).
Further, the Agency should be ordered to make affected employees whole for monetary losses resulting from implementing the new duty. Such an order would be warranted under the Back Pay Act, 5 U.S.C. § 5596(b).
Further, should the grievance be sustained in whole or in part, the Union requests that the Arbitrator retain jurisdiction for purposes of implementation of the award and for resolving any question of attorney’s fees to which the Union may be entitled.
The Agency’s Contentions
The following is a summary of the Agency’s contentions in this matter.
Under the statute the assignment of work in the federal sector is a management right. 5 U.S.C. 7106(a). The Agency, therefore, is not required to bargain over a change in a condition of employment involving the assignment of work.
Further, the Agency did not add a new duty to the AA’s job as there was a long-standing practice of having AAs prepare hearing briefs. Several witnesses testified that they prepared such briefs while working on Travel Boards. The record also reflects that the VLJs have AAs brief cases when their workloads are high. In this regard VLJ Jones testified that before the pandemic he did not ask the AAs to brief cases because the workload was such that he could do all the briefing himself. But when coming out of the pandemic there was a large backlog of cases and a near doubling of hearing days, he tasked his AAs with preparing hearing briefs. Once the backlog eased, in about October 2021, he no longer required them to prepare the briefs but sought volunteers to perform that duty.
VLJ Jones also testified that some judges asked their attorneys to brief cases even pre- pandemic. The Agency merely proposed to add language to the FY 22 performance standards on the pre-existing task of briefing hearing cases and it ultimately withdrew the proposal.
The Union failed to meet its burden of proof associated with a change in past practice. To establish a change in practice, there must be evidence of the practice “before and after” a given time. Evidence from a few employees involving isolated incidents, without evidence showing how those incidents reflect either present practice or a departure from a defined past practice, do not make out a prima facie unfair labor practice case. VA Medical Center, Memphis, Tenn. and National Association of Gov’t Employees, Local R5-66, 42 F.L.A. 712 (1991).
The Authority has held that an agency is not obligated to bargain over changes in conditions of employment that are de minimis. U.S. Dep’t of Treasury, IRS, 56 F.L.R.A. 906, 910 (2000). To the extent the Agency implemented any change in the AAs’ condition of employment in this case, such change was de minimis. According to the record evidence, relatively few judges asked their attorneys to brief cases. Moreover, the hearing briefs only contained a summary of the record and did not require legal analyses. As such, preparing a hearing brief did not require a deep dive into the case and could be accomplished quickly, in about ten to twenty minutes.
The Union’s position is based on the erroneous assumption that performance standards include all of an employee’s job duties. However, they only list those duties use to appraise an employee’s performance. There was no evidence that the Agency changed how it evaluated the AAs before or after the Agency proposed, and then withdrew, the amended FY 22 performance standards. The record reflects that no AAs were disciplined over their performance in preparing hearing briefs. In this regard, VLJ Jones testified that he would not have disciplined or placed AAs on PIPa due to their performance in preparing hearing briefs and he had not heard of any case in which a VLJ had done so. The Union only presented evidence of a single case in which a VLJ threatened to place an AA on a PIP for submitting hearing briefs of poor quality. But the Union acknowledged that this AA was not ultimately placed on a PIP but was reassigned to work for a different VLJ.
The Agency did not breach any bargaining obligation. Article 27, Section 5.E. of the Master Agreement requires the Agency to give the local union at least fifteen days notice of additions to performance standards and to meet its bargaining obligations before implementing them. Under Article 27, Section 5.A. the local union may provide “input” on changes to or the establishment of new performance standards.” The Master Agreement does not create a broader obligation to bargain than what otherwise exists under prevailing law.
On August 31, 2022, the Agency emailed proposed new performance standards to the Union, stating that they were a “starting point for any discussion or I & I bargaining,” and the parties met to bargain. The Agency thereby complied with the notice and input requirements of Article 27.
Further, any obligation the Agency had to bargain over the new performance standards was negated by two events: 1) the Union’s withdrawal from bargaining; and 2) the Agony’s withdrawal of its proposal. The parties had agreed that bargaining would continue until either agreement was reached or the Agency withdrew its proposal. Indeed, during the hearing the parties stipulated that the Agency withdrew its proposal and implemented the prior year’s standards.
The Agency did not violate the ICARE regulations. The Union bases its ICARE claim on what it characterizes as the defamatory statement that VLJ Paulson made in an email she sent to seven AAs stating that the Union unilaterally decided that it was done bargaining. The statement does not meet the elements of defamation. There is no evidence that Ms. Poulson made the statement despite knowing it was false. As she was not a member of the Agency’s bargaining team her knowledge of what occurred in the negotiations was based on second-hand information. It would be unreasonable to assume that when she made the statement she knew the full context of Mr. Komins’ email calling for the next session to be cancelled.
The Union has presented no proof of its allegation that Vice Chairman Arnold declared at an October 1, 2021 meeting with the VLJs that the Union unilaterally withdrew from bargaining. He did not even attend that meeting and has stated he never spoke to the VLJs about the negotiations.
Further, it would be reasonable to conclude that the Union, and not the Agency, terminated the negotiations. The Union read much more into DVC Scharnberger’s tentative statement – that management may need to stick with the existing standards – than he intended. In response to that less-than-definitive statement, Mr. Komins said that he “guess[ed]” Ms. Brant “need[ed] to cancel” the September 29 bargaining session.
FINDINGS, DISCUSSION AND DECISION
Upon careful consideration of the entire record, I find that the Union demonstrated by preponderant evidence that the Agency breached its duty to bargain on procedures and appropriate arrangements before it started to require AAs to prepare hearing briefs. It thereby violated the FSMLRS and Articles 27 and 47 of the Master Agreement. I am not persuaded, however that the Union demonstrated by preponderant evidence that the Agency violated the ICARE regulations. The grievance will therefore be granted in part and denied in part. The following discussion sets forth the findings and rationale for this decision.
The Duty to Bargain Claim
Under the FSMLRS, federal agencies have a duty to bargain in good faith with its employees’ exclusive representative over changes to conditions of employment for employees in the bargaining unit. 5 U.S.C. § 7114(b). The statute defines conditions of employment as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions.” 5 U.S.C. § 7103(a)(14). The Authority has held that, to determine whether there was a change to conditions of employment, the Arbitrator must determine: “(1) whether there was an actual, agency-initiated change to a personnel policy, practice or matter; and (2) whether the change affected working conditions.” AFGE 1929, supra at 9
Regarding the first prong, the Agency contends that it did not change working conditions because the task of preparing hearing briefs is covered by the PDs and the performance standards for AAs and that they had always prepared these briefs. Although the PDs do not refer to prehearing briefs, the Agency relies on the language in the PDs for the Gs-11, GS-12 and GS-13 positions under the listing of “Major Duties,” paragraph B of which states: “Drafts legal briefs outlining the facts at issue and containing recommendations for appropriate action.” (Emphasis added) (The PD for the GS-14 position does not include this reference to legal briefs.) Although at first blush the reference to “legal briefs” might seem to cover hearing briefs, based on the evidence as to the type of information included in hearing briefs, I find that that language does not cover the task of preparing them.
According to the preponderance of the record evidence, the hearing brief fundamentally differs from the “legal brief” alluded to under the major duties section. All of the witnesses who currently or in the past served as AAs testified that the hearing briefs they were asked to prepare essentially included a summary of the issues and perhaps of the evidence in the file. They did not include the elements typically included in a legal brief, i.e., a review of the facts, an analysis of the law and its application to the facts, and recommendations for appropriate action. The AAs only included those elements in the draft decisions they submitted to their VLJs.
The Agency also relies on language in the PDs (although not under the “Major Duties” section) and in the performance standards as to how the AAs are expected to function as “team members.” In this regard, the PDs include the following provision:
Supports the Board of Veterans Appeals’ efforts to provide ‘world class service to customers by performing the following duties: … provides services to [supervisors} that contribute to the accomplishment of the Board’s mission and objectives”; and [p]articipates in new and varied assignments … [and w]orks cooperatively with others in the Team ..to ensure that individual effort is integrated into an overall product or major component thereof.
Similar language is included under critical element 4, Customer Service and Organizational Support, of the performance standards in describing what constitutes “Fully Successful” and “Exceptional” performance. In pertinent part, it states as follows:
Fully Successful: *** The attorney functions as a team member. ***
Exceptional: *** [T[he attorney regularly goes above and beyond in their efforts to advance the organizations, mission and or culture. Additionally, the attorney actively contributes to the organization by engaging in activities … by supporting the organization’s mission of issuing quality and timely decisions and conducting hearings.
I find that such language is too general to cover the task of preparing hearing briefs. Following the Agency’s argument that the reference to functioning as a “team member” and supporting the agency’s mission to its logical conclusion would arguably permit the VLJ to assign the AA to virtually an unlimited number of different duties. Moreover, such general language is in sharp contrast to the specific language in the performance standards for VLJs about hearing preparation work. Unlike the AA performance standards, the VLJ performance standards includes “Prehearing Management” as a critical element, and under that element states that the VLJ “identifies, prehearing, issues to ensure efficient conduct of hearing.” Including this language in the VLJ’s performance standards indicates that the Agency knew how to draft performance standards to include working on prehearing matters but did not include such language in the performance standards for AAs. Further, comparing the performance standards of the AAs versus the standards for the VLJs indicates that it is normally the job of the VLJ, not the AA, to perform the duties related to preparing for the hearing, including by identifying the issues in the case, which is the essential information included in hearing briefs.
Regarding the extent to which AAs have prepared hearing briefs in the past, all of the Union’s witnesses testified that they either never did them or that they did but only when they volunteered to participate on Travel Boards. VLJ Jones testified that, when he was an AA between 1995-2010, he did hearing briefs when he participated on Travel Boards. Although he testified that he “suspected” he may have done hearing briefs on other occasions, he could not recall any specifics, and he did not suggest that he was ever required to prepare them as opposed to having volunteered to do so. Similarly, DVC Scharnberger testified that, when he was an AA in the years 1990-2005, he did hearing briefs when he participated on Travel Boards. He stated that it was not otherwise the practice to have AAs prepare hearing briefs and he did not refer to any occasion, other than in connection with Travel Boards, when he did them. None of the witnesses testified to having a clear or specific recollection of preparing a hearing brief other than in connection with a Travel Board or indicated that they ever prepared one other than on a voluntary basis.
Based on the preponderance of the record evidence, I find that, before late 2020, the Agency never required AAs to prepare hearing briefs. Although up until 2014 some AAs had done hearing briefs when participating on a voluntary basis in connection with Travel Boards, there is no concrete evidence that the Agency ever required AAs to do these briefs. I therefore find that in late 2020 the Agency added a new duty by, for the first time, requiring some AAs to prepare hearing briefs. The Union has, therefore shown the first element necessary to trigger a duty to bargain, namely, that the Agency initiated a change to a personnel practice.
I further find that the Union established by preponderant evidence the second element necessary to trigger a bargaining obligation, i.e., that the change affected working conditions. The Authority defines working conditions as “the circumstances or state of affairs attendant to one’s performance of a job” AFGE Local 1929, supra at 10-11. The Union demonstrated that preparing hearing briefs consumed a not insignificant amount of the AAs’ time, potentially making it more difficult for them to meet their decision-writing production quotas. This could negatively affect their performance ratings and lead to other negative consequences.
The record reflects that the number of hearing briefs assigned to individual AAs and the amount of time it took to prepare them varied considerably based on the AA, the number of issues in the case file, the number of documents in the file, and the expectations of the VLJ to whom the AA was assigned. AA Fraser indicated that it took him two to three hours to complete each brief and he was assigned eight to ten of them per month and that this assignment took much time away from drafting enough decisions to meet his quota. AA Espinoza indicated it took him about an hour to complete each hearing brief. AA Sametshaw testified that it took him anywhere from ten minutes to an hour to draft a hearing brief and that the task diverted his time and attention from drafting decisions to meet his quota. VLJ Leboff, in assigning AAs to prepare hearing briefs, apologized for what he called “the extra work.” VLJ Jones testified that his assigning AAs to prepare hearing briefs caused them anxiety and impacted their ability to meet their decision-writing quota.
The record further reflects that the AAs’ performance on hearing briefs could affect their performance appraisal ratings or potentially lead to discipline. For example, VLJ Jones testified that, if an AA submitted a hearing brief that misidentified the issues or was otherwise of poor quality, it could negatively impact the AA’s rating. Alternatively, he stated that AAs might boost their ratings by volunteering to prepare hearing briefs. DVC Scharnberger testified that an employee could be placed on a PIP for failing to complete hearing brief assignments satisfactorily and disciplined for refusing the assignment. In this regard, there is evidence in the record of an instance in which a VLJ threatened to place an AA on a PIP for poor performance in preparing hearing briefs, although ultimately the employee was not placed on a PIP but was reassigned to another VLJ.
The Agency contends that even if preparing hearing briefs was a new duty for the AAs, bargaining was not required because the change was de minimis. Indeed, an agency is not required to bargain over a change that has only a de minimis effect on the conditions of employment. See, e.g., U.S. Dep’t. of the Air Force, 355th MSG/CC, Davis-Monthan Air Force Base, Ariz., 64 FLRA 85, 89 (2009). To determine whether a change has only a de minimis effect the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees’ conditions of employment. U.S. Dep’t of Treasury IRS and National Treasury Employees Union, 56 F.L.R.A. 906, 913 (D.C. Cir. 2000). The United States Court of Appeals for the District of Columbia Circuit has interpreted the de minimis standard to “imply a narrow exception to the statute’s collective bargaining requirement; one that pertained to management decisions that had only a trivial effect on conditions of employment.” AFGE v. FLRA, 25 F.4th 1, 3 (D.C. Cir. 2022). In light of the above findings on the amount of time it took AAs to prepare hearing briefs and how doing so potentially impeded their ability to meet their production quotas and could thereby negatively affect their ratings and lead to other negative consequences, I find that the addition of this job duty had more than a trivial effect or de minimis effect on the AAs’ conditions of employment. See U.S. Dep’t of Labor and AFGE Local 12, 70 F.L.R.A. 27, 30 (2016) (A change involving the assignment of tasks that employees had not performed before is more than de minimis).1
Although under 5 U.S.C. § 7106(a), the Agency had the management right to assign the task of preparing hearing briefs to the AAs, under section 7106(b) it was required to bargain with the union over the “procedures which … the agency will observe in exercising [such] authority” and “appropriate arrangements for employees adversely affected by the exercise of [such] authority.” It was also required by the Master Agreement to provide the union: reasonable advance notice of the change in conditions of employment (see Article 49, Section 4A); and advance notice of at least fifteen days prior to implementation of the change in or new performance standards and opportunity to provide input (see Article 27, Section E).
Regarding the notice requirement, on September 3, 2021, 28 days before the start of FY 22 on October 1, 2021, the Agency sent the Union its proposed amended performance standards for FY 22 containing language, which was not included in the existing performance standards, on the requirement that AAs prepare hearing briefs. Although this notice was provided after the Agency started having AAs prepare hearing briefs sometime in late 2020 during FY 21, the alleged failure to provide notice and to bargain prior to implementing the practice in that year is the subject of another grievance and not the one from which this arbitration stems. The subject of this arbitration is limited to the Agency’s alleged failure to satisfy its duty to bargain over the performance standards prior to FY 22. I find that the Agency complied with the notice obligation with respect to FY 22.2
I am persuaded, however, that the Union demonstrated by preponderant evidence that the Agency did not comply with its obligation under the statute to bargain with the Union over procedures and appropriate arrangements and the requirement of the Master Agreement that it afford the Union an opportunity to provide input. It is undisputed that the parties met twice, on September 22 and 27, 2021, for relatively brief bargaining sessions. At these sessions, the parties only negotiated ground rules and did not reach agreement on them, and never negotiated over procedures and appropriate arrangements related to hearing briefs. The Agency indicated during the September 27 session that it did not intend to continue negotiating after September 30, 2021because it felt that if there were to be a change in performance standards, in fairness to the AAs they needed to be in effect before the start of FY 22, on October 1, 2021.
A third bargaining session was scheduled for September 29, 2021. The session did not occur, and the parties vigorously contest which side was responsible for cancelling that session. Their respective positions on this point are based on the emails described above they exchanged after the September 27 bargaining session. Later that day, Mr. Komins stated in an email to Mr. Scharnberger and Ms. Brant that he wanted to confirm that management stated during bargaining that if negotiations did not conclude by October 1, 2021, it would “walk away from the bargaining process.” In his email response of September 28, Mr. Scharnberger stated that it appeared the parties were unable to even agree on ground rules, that he did not feel they were making progress on implementing the new standards before October 1, and that he felt like he “need[ed] to advise the Chairman that we may just need to stick with the existing standard as our best option to achieve our FY22 organizational performance goals.” In his email reply, Mr. Komis thanked Mr. Scharnberger “for the clarification” and stated that he “guess[ed] that Jenna [Brant] needs to cancel tomorrow’s meeting.” On September 29, Ms. Brant sent an email to the Union stating that the “[p]er Benton’s email” the meeting that had been scheduled for that day “is being cancelled.”
In light of these messages, both parties may plausibly maintain that the other party was responsible for canceling the September 29 session and terminating the negotiations. Although Mr. Scharnberger’s September 27 email was not definitive, as he did not specifically say that management was “walking away” or terminating the negotiations, his message conveyed his pessimism about the lack of progress in the negotiations and how the Agency may need to keep the existing standards in effect. I find that it was not unreasonable for the Union to have interpreted the email as essentially saying that further bargaining would be futile and, therefore, there would be no reason to have another bargaining session.
At the same time, the Union could be viewed as the party responsible for canceling the September 29 session in light of Mr. Komins statement that he “guess[ed] that Jenna [Brant] needs to cancel tomorrow’s meeting.” However, Ms. Brant, rather than responding as she did by canceling the meeting, could have clarified Mr. Schanrberger’s September 27 email, or indicated that Mr. Komins had misinterpreted it or said that his “guess” that the meeting needed to be canceled was incorrect. Moreover, neither Ms. Brant nor Mr. Scharnberger responded to what they viewed as the incorrect statements in President Massey’s subsequent email that “cancelling the meeting was a mere formality based on Mr. Scharberger’s statement that management did not intend to change the performance standards.”
Although to some extent both parties contributed to the premature termination of the negotiations, in light of this evidence, I find that management bears the principal responsibility. Mr. Scharnberger initiated the chain of events that led to the cancellation of the September 29 bargaining session by expressing his pessimism about the negotiations and how the existing standards may need to be retained, and management failed to respond to what it perceived to be the Union’s false assertion that the session was only cancelled due to Mr. Scharnberger’s statement. The reason Mr. Scharnberger gave for not responding – i.e., that he did not care that the statement was inaccurate – and the reason Ms. Brant gave – i.e., that she did not want to antagonize President Massey – are not compelling and do not adequately explain their failure to respond to clarify the Agency’s position.
The Agency contends that it did not implement any changes in performance standards for FY 22, but that it just rolled over the FY 21 standards, and the parties had agreed that bargaining would continue until an agreement was reached or the Agency withdrew its proposal. Although it is the case that the Agency did not change the written performance standards for FY 22, in that year it required some of the AAs to prepare hearing briefs, notwithstanding that it withdrew its amended proposed performance standards that specifically referred to this task.
The Agency also contends that, in the negotiations over the FY 21 performance standards the parties agreed that in return for the lowering of the production quota for decisions from the prior year, the AAs would be asked to provide additional support for hearings, including by preparing hearing briefs. In support of this contention, the Agency points to the email Chairman Arnold sent to the VLJs and AAs in September 2020 after the bargaining on the FY21 performance standards was completed. He stated in that email that many AAs would have “to shift some of their time to supporting the hearing docket” and “[i]n recognition of that, we chose to lower the goals and associated performance standards related to decision-writing.”
Neither party introduced any evidence reflecting that the subject of hearing briefs was discussed during the FY 21 negotiations or that management indicated at the bargaining table that AAs would be expected to start doing them in return for which their production quotas for decisions would be lowered. Thus, to the extent it may have been the Agency’s intent to lower the production quota to compensate for having AAs prepare hearing briefs, there is no evidence that it conveyed such intent in bargaining with the Union. Further, Mr. Keogh, the principal negotiator for the Union in the FY 21 negotiations, testified that the Agency indicated during the negotiations that the reason it was lowering the quota was to account for the large backlog of cases that accumulated during the pandemic when the Agency was not holding hearings, as a result of which VLJs did not have sufficient time to sign enough decisions to ensure the AAs could meet their quotas. He explained that the quota was lowered to allow AAs at the GS-14 level to move into Acting VLJ roles and assist in hearing cases so as to move through the backlog. The Agency did not refute Mr. Keogh’s testimony, or call as a witness any management official who participated in the FY 21 negotiations, or present any documentary evidence of bargaining history. I therefore find that the Agency failed to demonstrate that the parties agreed in the FY 21 negotiations that the production quota would be lowered to compensate for the time AAs would spend preparing hearing briefs.
Based on the record evidence, I find that the Union has demonstrated by preponderant evidence that, by requiring AAs for the first time to prepare hearing briefs, the Agency: changed the AAs’ conditions of employment without satisfying its statutory duty under 5 U.S.C. § 7106(b)(2) and (3) to bargain with the Union over procedures and appropriate arrangements; by such violation committed an unfair labor practice under 5 U.S.C. § 7116(a)(1), (5), and (8); and violated Articles 27 and 47 of the Master Agreement by not affording the Union the opportunity to provide input into changes in performance standards or the establishment of new performance standards and failing to meet its bargaining obligations.
The ICARE Claim
The Union contends that the Agency violated the ICARE regulations by its actions in connection with implementing the AAs’ performance standards. The Union points to how the Agency told the Union that it was rolling over the FY 21 Performance Standards and withdrawing the proposed amendment to the AAs’ FY 22 Performance Standards that added language on hearing briefs, but then proceeded to have AAs do prehearing briefs in FY 22 anyway. While I have found that the existing performance standards did not include the task of performing hearing briefs, I find that the Agency put forth a plausible argument to the effect that certain language in those standards (particularly the reference to “legal briefs” and serving as a “team member”) covered the task. I am therefore not persuaded that the Union demonstrated that the Agency acted without a good faith belief that prehearing briefs was covered by the performance standards such that it might be found to have violated the ICARE regulations.
The Union also contends that the Agency violated the ICARE regulations by making defamatory statements to AAs and VLJs about how the Union allegedly walked away from bargaining. As discussed above, while I found tht the Agency was largely responsible for the cancellation of the last scheduled bargaining session, I also found that the Union contributed to the chain of events that led to the session being cancelled. Therefore, there was at least some factual basis for the alleged statements that blamed the Union and no evidence that they were made in bad faith. I am therefore not persuaded that the Union demonstrated by preponderant evidence that the Agency violated the ICARE regulations.
I find that an order requiring the Agency to cease and desist from requiring AAs to prepare hearing briefs is appropriate under the circumstances of this case. Under 5 U.S.C. § 7118(a)(7), upon a finding that the Agency committed an unfair labor practice, the Arbitrator may order the Agency to cease and desist. It is noted that the Agency has not presented any evidence that such a remedy would disrupt its operations. Further, the record reflects that the Agency ceased assigning briefs during the pendency of the Union’s earlier grievance without evidence of disruption. Accordingly, the Agency will be ordered to cease and desist from requiring AAs to prepare hearing briefs unless and until it satisfies its obligation to notify the Union of its intention to implement that practice and, upon the Union’s request, bargains in good faith over the procedures and appropriate arrangements related to that duty.
Further, under the Back Pay Act, upon a finding that an employee has “been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials,” the employee is entitled to a correction of the personnel action and reimbursement of the monetary losses. 5 U.S.C. § 5596(b). A violation of a statute or provision in a collective bargaining agreement, such as occurred in this case, is considered an “unjustified or unwarranted personnel action.” Thus, bargaining unit members who were required to prepare hearing briefs since the beginning of FY 22 are entitled to be made whole to the extent they can demonstrate a causal link between their performance of that duty and monetary losses. Such losses may include, but are not limited to, missed performance bonuses due to receiving a lower rating on performance appraisals, and missed step and grade increases.
For the foregoing reasons, the Union’s grievance is sustained to the extent it alleges that the Agency violated the FSLMRS and the Master Agreement by requiring AAs to prepare prehearing briefs in FY 22. The grievance is denied to the extent it alleges that the Agency violated the VA’s ICARE regulations.
The Agency is ordered to cease and desist from requiring AAs to prepare hearing briefs until it satisfies its statutory and contractual duty to notify and, upon the Union’s request, bargain with it over procedures and appropriate arrangements.
The Agency is further ordered to make whole those AAs who demonstrate that, since the start of FY 22, they were required to prepare briefs and that such requirement caused them monetary losses, such as those due to missed performance bonuses and the loss of step and grade increases.
The Agency is further ordered to post the attached Notice for at least 60 days, to be signed by the Chairman of the Agency, at all locations where employees represented by the Union are assigned, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced or covered by any other material.
Jurisdiction is retained for a reasonable period of time to address any disputes that may arise in implementing this Award and to decide any petition for attorney’s fees that the Union may submit.
Dated: May 15, 2023 Elliot H. Shaller
1 It is unclear from the record how many AAs were required to prepare hearing briefs. DVC Scharnberger testified that he thought that it was only a small number of VLJs who required their AAs to prepare these briefs, that other VLJs only had their AAs to do them on a voluntary basis, and other VLJs continued to do the prehearing briefs themselves. In any event, the Authority has held that the number of employees affected by a change is not dispositive of whether the change is de minimis. U.S. Dep’t of the Air Force, Air Force Materiel Command, Space & Missile Sys. Ctr. Detachment 12, Kirtland Air Force Base, N.M. and AFGE Local 2263, 64 F.L.R.A. 166, 173 (2009)
2 On October 8, 2021, the Agency denied the Union’s prior step 3 grievance. The parties did not introduce evidence on whether the Union invoked arbitration in that case. In any event, the Agency did not in the case at bar raise any procedural or jurisdictional defenses based on the filing or disposition of the prior grievance.
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