Proposed Changes to Performance Standards: A Threat to Workforce Morale

Performance Standards Changes

In May 2024, Board management proposed significant changes to attorney performance standards following a record-breaking year in production. This came despite survey results showing that attorneys were already demoralized and burned out—largely due to existing production requirements. The proposed changes threatened to exacerbate these issues.

In summary, management’s proposals included:

• Elimination of the issues-track;
• Strict enforcement of the quota every four months, with no buffer at the two checkpoints during the fiscal year;
• 92% of cases graded at 3 or above during each four-month period for fully successful, 96% for exceptional;
• No more than 2 cases marked as untimely each four-month period for fully successful, no more than 2 for the entire fiscal year for exceptional;
• Attorneys required to brief hearing cases upon request from their VLJ;
• Creation of a new element called “Organizational Support.”

At the bargaining table, management proposed lowering the annual quota to 144. However, this reduction came with the condition of forfeiting several proration categories and eliminating the issues-track currently in place. Our bargaining team believed that these concessions would have further demoralized the workforce, exacerbating the existing challenges attorneys face in meeting performance expectations.

Management’s Rights and Union’s Role

Under current regulations, management holds the exclusive right to determine the content of performance standards. This means that they can:

• Set the quota;
• Eliminate the issues-track;
• Require that 92% of cases be rated 3 or higher under the Quality element;
• Require that no more than 2 cases be untimely under the Case Management element.

The Union, on the other hand, can only negotiate procedures and appropriate arrangements surrounding these standards. For example, negotiable topics include:

• Proration categories for the quota;
• Issuing a tracking tool to help attorneys monitor their progress;
• Allowing a panel of VLJs to review any decision rated 1 or 2, upon the attorney’s request; to determine if a higher rating is warranted;
• Applying equitable tolling on case deadlines for leave and weekends.

Interest-Based Bargaining Approach

This year, management opted for an interest-based bargaining approach, where both parties discussed the actual content of the standards. Management pursued this strategy to avoid:

• Expanding proration categories, which would effectively lower the annual quota;
• Lengthy impasses, which could take months to resolve.

Union Proposals

During bargaining sessions, the Union presented the following counterproposals aimed at mitigating the negative impacts on the workforce:

• Lowering the quota to 140;
• Adding a three-week buffer zone at each checkpoint (January 31 and May 31);
• Maintaining the existing language in the Quality and Case Management elements, specifically “generally meets expectations” and “generally exceeds expectations”

Ground Rules and Key Events

The parties’ ground rules required that a mediator be present during all bargaining sessions, which were scheduled every Tuesday, Wednesday, and Thursday from 10:00 a.m. until 3:00 p.m. The Federal Mediation and Conciliation Service (FMCS) sent a mediator who flew up every week from Florida, while the Board had an attorney from the General Counsel’s Office drive up every week from North Carolina.

Senior DVC Christopher Santoro and Acting DVC Tracie Wesner represented the Board.  Both were respectful and listened to our ideas and proposals, despite our fierce disagreements. However, the Chairman never appeared, which is unusual for someone in his position not to drop in at some point during the negotiations. The Union’s team included Calanit Kedem, JR Cummings, MB Viccellio, and Nick Keogh.

On September 18th, the mediator notified the Union that management decided to suspend bargaining for two weeks to engage in internal discussions.  On that same day, the Union held a town hall with over 490 attorneys.  Many of you posed questions in the chat that we were not able to answer during the session.  As promised, below are the questions and answers from the town hall.

Questions and Answers

Special Thanks to Karen McKenzie for her assistance in compiling these questions from Teams.

Why was bargaining suspended? … Will it resume? … Was it just due to the mediator’s schedule or is some other reason suspected? … Can management unilaterally suspend bargaining? … Maybe management is going to balk on instituting changes since they suspended bargaining. 

We received a variety of questions asking about the suspension of bargaining.  The short answer is that because management was the moving party in this bargaining (they proposed the changes), yes, they can suspend bargaining.  They can end bargaining altogether if they wanted to, which would mean no new standards and a rollover of last years.  The definition of “suspending” in this instance is open to interpretation and we’re not sure what management’s intent is. 

No changes to the standards can go into effect until management has completed the bargaining process with the Union.  If they implement anyway, it would be a violation of the law, we will file an Unfair Labor Practice (ULP) charge, a cease-and-desist letter, and things would subsequently be reverted.  We’d rather not speculate on the why because we do not know.  To provide some context, we were in the middle of asking questions about management’s proposals when bargaining concluded on Tuesday, and then Wednesday morning before our bargaining session began we got word that management was suspending bargaining. 

What happens if no deal is finalized by October 1?

Historically, this means the current standards roll over, but that is usually explicitly stated by management at some point.  They have not said that yet, so it would be premature to definitively say that is what’s happening at this juncture.  It would be best to refrain from making any assumptions until management either announces something, or we do.  Not too long ago, the Union concluded bargaining with management in mid-October and the standards went into place a few weeks into the fiscal year.  This is obviously not idea and we would like to avoid this.

Are there timelines on how long bargaining can continue? … Why does bargaining start so close to the end of the fiscal year each year? … Why doesn’t it start earlier?

Good questions!  There are no hard timelines, though we’re rapidly coming up on October 1.  Bargaining takes time, there are many steps.  One thing unique about this year’s bargaining was that the parties agreed to use a mediator from the start, so that was one more schedule we had to account for.

Why do they try to change the standard every year?…Why change the standards if we’re breaking records?… Aren’t we hitting our goals? … Is this the reward for breaking a new record in volume of cases completed? …  The incentive awards are why we are killing it this year … and now they come out with their big sticks to beat us down. Have they learned nothing? … Frustrated over the lack of transparency… Why change the entire system for performance reviews because of a few select situations, we will end up with a performance system that is as broken as AMA!

We hear you.  These are good questions to ask management yourself!  We recommend taking it up with your VLJ or DVC either personally or in their office hours.  Some of the reasons they expressed to us is that the average number of cases per attorney has decreased despite overall numbers increasing, the need for accountability for attorneys, and their desire to eliminate vague terms in certain elements (Quality, Case Management). For what it’s worth, the Board has been on pace or ahead of pace for its Board-wide goal for most of the year, and we’ve already broken another record, all under the current performance standards that have been in place since FY21.

Many comments and questions involved our proposal of 2 credits for cases involving 10 to 19 issues and 3 credits for cases with 20 or more issues and how it does not capture the amount of work required to complete these high-issue cases.

We understand.  We did not make much progress on this matter prior to the suspension of bargaining and nothing is finalized.  The goal was to try to counteract the elimination of the issues-track.  Thank you for your feedback and we will be sure to incorporate it into any future proposals.

Can we keep the mid-year system and not switch to trimesters?

This is a priority for management – they want more check-ins and to hold people more accountable throughout the year to ensure attorneys are staying on pace.  We think it’s unnecessary and will lead to more PIPs.  This is obviously a massive point of contention between the two sides. 

Is the issues-tracking already gone for FY25?

No.  Management’s proposal was to eliminate issues-tracking, but that cannot be implemented before the bargaining process is completed.  We were in the middle of bargaining when management suspended bargaining.  Nothing is finalized.  If you are concerned about the potential elimination of issues, please voice those concerns to your VLJ and DVC and ask that they relay it upwards.

SCT for high-issue cases would be a good idea … Can they have a detail to handle high-issue cases?

Certainly worthy of consideration.  This is a little outside the Union’s bailiwick, so we’d recommend starting the discussion with your VLJ, DVC, or the Ombudsman Mary Cullinan.  Get the conversation started!

Why can’t cases be split up or why can’t there be a limit on [the] number of issues per submission?

Not sure I understand the question but I’ll answer generally.  Each VLJ handles issues in cases a little differently.  If you have s/c left knee and s/c right knee under the same theory, for example, some VLJs will require you to collapse them into a single s/c bilateral knee issue.  They can remain separate if the analysis for each knee is different.  Other VLJs would allow you to keep them separate.  Other VLJs prefer you take the issues as they come to you in Caseflow. 

There is variety at the Board on how issues are handled.  When discussing the proposal of whether to assign more than one case credit based on a certain number of issues in a case, management proposed the following language: “Issues shall not be created or modified for the purpose of achieving additional case ‘credit’ under this provision.”  When asked to clarify, they gave the example of turning a single s/c bilateral shoulder into two issues, one for each shoulder, in an attempt to stretch a 9 issue case into a 10 issue case to get the extra case credit. 

While we can’t say for certainty, I’m sure management would prefer attorneys refrain from doing this to begin with, but considering this is couched in terms of achieving additional case credits, it seems like that is where the scrutiny would be stronger.

How many attorneys on the issues-track are GS-14s?

There’s no way of knowing precisely how many GS-14s, but extrapolating from our survey, approximately 25 percent of all decision-writing attorneys are on the issue track in FY24.  Our guess would be most but not all of those attorneys are GS-14s.

Are they planning to also continue the quarterly incentives next FY as well?

We hope so!  The Union views it as a smashing success.  Carrots work better than sticks, and the Board’s overall production is a testament to that theory.  The caveat is that management now views incentive awards and EOY bonuses for exceptional production as double-awarding, so one might affect the other.  Talk to your VLJ to game it out.

Will quarterly incentives be offered for issues?

Unlikely.  Management and Congress care about raw case numbers for Veterans, not issues. 

How can they handle three performance periods if it takes them six months to process bonuses?

Good question!

Whatever the standards are next FY, can a copy of the DOC excel sheet be sent to the attorneys so we can track our own numbers that we can reconcile with the official tracker?  Frequently, there have been mistakes and missed proration in the official tracker that I had to follow up with to make sure it is all counted. [15 likes]… EAs put in leave (holiday, sick, annual, etc) at the END of the pay period, so you don’t know what your quota is for the PP until after it’s over.

Without a change in the EA process, we need an excel sheet to manage our DOCs … I’m still confused about what exactly our case performance is recorded on. If the DOC says I’m FS, am I actually FS? Or is there some other recording instrument that they will use to double check to DOC at the end of the FY?

This was a common question, here’s the long and short of it – in the past, the official DOC was the Excel DOC we are all familiar with.  It was easy for management to just spin off of that individual DOCs to be sent to everybody for their own tracking purposes.  This past year, however, management moved to the PowerBI DOC and stopped using the Excel DOC.

  At the bargaining table, we specifically asked that each attorney be given a DOC they can fill out themselves to track their production, and we were told it would be difficult because they no longer upkeep the Excel DOC, there is no way to spin-off individual PowerBI DOCs, it would create extra work for management, and attorneys are professionals and should be tracking their own work on their own. 

We had been given various assurances during the rollout of PowerBI that attorneys would be given their own DOC to track their production, so we pushed back forcefully on this.  This will be a continued source of discussion with management as the new fiscal year begins.  We will make it a priority.

Regarding DOC discrepancies, management laid out a proposal for strict timelines for when DOC errors can be rectified (within one pay period) and laying out definitions of errors.  We pushed back on such arbitrary timelines.

The first rule of unauthorized overtime is we don’t talk about unauthorized overtime.

Brad Pitt would make a good DVC.

As to timeliness, are they taking into account when the case must be sent to Admin for some reason?

Management made clear that case timeliness is a decision made wholly by VLJs, who should take into account all types of factors affecting timeliness.  Among those things are if it is sent to Admin, the number of cases in your queue, whether your waiting for an answer from various board offices like IOCC, OAI, PDD, OCOB, etc.  It is up to VLJs to determine timeliness.  In turn, it is up to the attorneys to keep their VLJs apprised of what may make a case late.

Is there even a way for us to know in the new system if a case has been marked as untimely?

Good question, not sure.  One sure-fire way to know your cases are timely is to make sure you submit all AOD and CAVC Remand cases within 30 days and every other case within 60 days.  You could also ask your VLJ as they’re the ones ultimately making the unilateral decision whether to mark a case as timely or untimely.

Under the current standards, how many late cases can we have to be rated successful on the time management criteria?

There is no hard number.  The current standards for Case Management read as follows – Fully Successful: The attorney generally meets expectations.  Exceptional: The attorney almost always meets expectations.  Management made it a priority to change this language because they viewed the word “generally” too vague and impossible to hold attorneys accountable.  Barring an epidemic of untimely cases, which there is no evidence of, we disagree with management and don’t see the need for a change in the element language. 

As to quality, what qualifies what is [rated] as a “1” or a “2”.  There is no consistency from one VLJ to another. Shouldn’t there be an objective rubric [to determine the quality rating of a case]? …Any case a VLJ sends back to rewrite must be graded at either a 1 or 2 … If a 1 or 2 is getting signed, what’s the problem? … Quality ratings are also subjective and completely dependent on our judge … Quality has nothing to do with the number your VLJ gives you, as CAVC.

There was a lot of consternation about this, so let’s lay it out.  First and foremost, management was adamant about decisions being graded based on initial submission; they noted this is the current policy and they have reminded VLJs to do this.  Whether that is actually happening is another story, and we’d agree that quality ratings are largely based on which VLJ you write for.  Management laid out their proposal for criteria for a 4 or a 5 – a list of positive factors such as “responsive to contentions and theories,” “well-analyzed medical and lay evidence,” “Veteran-centric writing,” and “logically organized.”  These factors largely track what is already in Caseflow. 

Alternatively, a score of a 1 or 2 will be justified if the VLJ identifies problems with the case, to include failure to consider and apply theory contention, case law, statutes/regulations, administrative procedures, or required other areas of improvement such as missed an issue, inadequate reasons and bases, missed due process violations, incomplete remands, grammar issues, etc.  The VLJ should determine whether a 4 or 5, or a 1 or 2, should be issued based on the number and significance of the issues. 

Importantly, to quote management’s proposals directly: “A score of level 3 is justified when the tentative decision is not returned for quality-related rewriting, contains none of the level 5/4 positive factors, and contains none of the level 2/1 failures and areas for improvement.”  We asked whether that meant a case that was returned for a non-judgment-call rewrite would be ineligible for a grade of 3 or higher, they said yes.  This is highly concerning.  When questioned on it, management responded by saying rewrites are a burden on VLJs and attorneys are expected to submit signature-ready work the first time. 

For some further context, many of you know the Union won an arbitration this past year regarding the “consistently on-pace” standard with regard to promotions, WIGIs and PIPs.  Because we won the arbitration, management is having a hard time “holding people accountable” for production problems. 

The Union speculated at the time that management would pivot their scrutiny to quality, and based on this it appears we were right.  This is a problem because a small number of VLJs issue a majority of the 1s and 2s at the Board (a single judge has issued 64 2’s this year alone) and your quality scores may depend more on which VLJ you’re randomly assigned to rather than the actual quality of your work.  As a result, we are fighting to keep the current language for the Quality standard in place, even if the word “generally” needs to be defined. 

* There was a question about an update on the Arbitration Implementation.  As this is a separate matter aside from the FY25 Attorney Standards, please direct any questions about the Arbitration Implementation to JR Cummings at john-ryan.cummings@va.gov or Calanit Kedem at calanit.kedem@va.gov. 

I don’t know what it would be, but I wish there were some way to account for case complexity other than issue count.  I’ve had 13-issue cases that are just a bunch of interconnected remands that I can knock out in a day, and single-issue 1800-document nightmares that take a week.

A great point.  Initial case complexity does not equal final case complexity – VLJs have the autonomy to change the complexity of a case upon signature, and frequently do.  So while issue count is a big part of a cases initial complexity score, if it is 13 interconnected remands, the VLJ can lower the complexity rating.  In the inverse, a one issue case may seem easy on its face, but after review it may turn into a dog.  The VLJ can then raise the complexity rating of it.  These are ripe issues to discuss with your VLJ

If we are moving to hard numbers on quality and complexity, then shouldn’t we have a formal process for challenging the quality or complexity rating?

This was part of our proposals.  We want to create a joint committee to review every case rated as a 1 or 2, at the request of the attorney, to determine whether it is justified.  There’s no reason that committee can’t also review a case’s complexity as well.  We did not get to this proposal yet in the bargaining prior to suspension, so we don’t know management’s thoughts on it yet.

I feel like some judges just give out all 5’s no matter the decision and others give out 3s and never give out 5’s; its very subjective.

Your suspicion is correct.  As part of the bargaining process, the Union filed multiple Requests for Information under 38 U.S.C. 7114 (akin to discovery).  One of the pieces of information we requested were the quality scores each VLJ gave over the past 3 years.  After reviewing the information, it was eye-opening.  It is indeed very subjective.

We have always been able to challenge a “grade.”  In 30 plus years, you have been able to challenge this whether or not it has been an avenue that has been used by an attorney.

We’re unaware of any formal process in place, but know that informally you can ask your VLJ to review it again and regrade it.

How many, if any, in management have decision writing experience?

Reading this to mean senior leadership, Acting DVCs Deichert and Wesner are experienced Board attorneys and VLJs who have extensive decision writing experience.  DVC Scharnberger was a VLJ and decision writer many years ago.  DVC Rodrigues, SDVC Santoro, VC Arnold and Chairman Areizaga-Soto have no significant decision writing experience. 

Are we still 385th best place to work ahead of Bureau of Prisons?

In the most recent rankings, we are down to 444^th out of 459, so no.  But we’re still ahead of Bureau of Prisons!  To be fair, our most recent AES scores showed slight improvement in many categories, but we are still well below the average.

Still waiting on the 3^rd Quarter Incentive award, btw.

You’re not alone.  From what we understand, though, they should be paid out in the coming weeks. 

Can we talk about the new VLJs? Those of us with outside, new VLJs have gotten cases returned to brief the VLJ on the law.

This is ridiculous and should not be happening.  A large majority of the outside-hire VLJs have been at the Board for well over two years at this point.  If Board attorneys are expected to be fully functioning decision writers within one year of onboarding in order to keep their job, all VLJs need to be held to that standard as well and they should not be relying on their subordinates to do their job for them.  Thank you for bringing this to our attention.   

The union is effectively representing us.  I freeloaded off the union for 20 some years. It is well worth the dues you pay and it’s really just a drop in the bucket. You won’t miss the money if you join.

Thank you! We appreciate the support and your membership.  If you’d like to become a member, there are two ways to become a member: 1) E-Dues, where your dues come directly from your bank account or credit card, or 2) SF-1187, where dues will be deducted from your paycheck (return completed SF-1187’s in an encrypted email to JR, john-ryan.cummings@va.gov; you can leave “Timekeeper Number” blank, and please do not use your e-signature).  It takes less than 5 minutes, and our dues are only $18.50 a pay period, second lowest in the entire federal government. 

Full Survey Responses

If you’d like to review the full list of responses to our survey, we’ve compiled them here.

Question 1

Do you believe it would be fair to assign 2 credits for cases with 10 to 19 issues and 3 credits for cases with 20 or more issues if the issues-track were eliminated? Please offer any suggestions on this topic if the issues-track is eliminated, as proposed by management. Please elaborate.

Question 2

Are you currently on the issues track or the case track for the Productivity element?

Question 3

In the past, the annual quota was enforced quarterly with a buffer zone, meaning that attorneys only needed to meet 75% of their pro rata goal by the end of the first fiscal quarter, 80% by mid-year, and son on, to be considered full successful. Do you believe a similar buffer zone should be implemented for the two proposed check points of January 31 and May 31? If so, should it be based on a percentage, a specific number of cases, or a certain number of weeks? Please elaborate.

Question 4

Throughout the fiscal year, are there periods when you do not meet the ‘green’ status on the DOC?”

Question 5

If yes, approximately how many cases were you behind during those periods?

Question 6

Are you more likely to be behind during the following time periods:

• I’m usually not behind
• I don’t knkow
• During the first trimester (October through the end of January)
• During the second trimester (February through the end of May)
• During the third trimester (June until the end of the year on September 30th)

Question 7

If you’ve fallen behind your pro rata goal (not “green”) during the fiscal year, have you been able to make up the deficit to meet your annual goal?

Question 8

What do you consider to be a fair annual case quota – assuming proration is restricted to total work stoppages due to IT issues and approved leave (including jury duty) – with additional proration under a good-cause exception at the discretion of management?

Question 9

How do you feel about management’s proposal that, to be deemed fully successful in the Quality element, no more than 8% of your cases can be rated at Level 2 or below during each four-month period?

Question 10

How do you feel about management’s proposal that, to be deemed fully successful in the Case Management element, no more than 2 cases can be marked untimely during each four-month period?

Question 11

Do you have any other additional comments for senior leadership concerning our performance standards?