New VA ban on clinicians' union work spurs litigation threats

Unions representing Veterans Affairs Department medical workers are ramping up for another legal battle over the VA's decision Thursday to bar 430 VA clinicians from doing any union work during their salaried employment hours to ensure a full-time focus on hands-on patient care.

VA Secretary Robert Wilkie's move overrides a collective bargaining agreement made by the Obama administration and will take effect Nov. 15. It targets agreements made with the American Federation of Government Employees, National Federation of Federal Employees, National Association of Government Employees-SEIU and National Nurses United.

It will impact VA physicians, dentists, podiatrists, chiropractors, optometrists, registered nurses, physician assistants, and expanded-duty dental auxiliaries who are employed under a specific provision, Title 38 of the U.S. Code for medical employees.

On Friday, members of the National Nurses Organizing Committee/National Nurses United condemned the move as administrative overreach and vowed to take the Trump administration to court.

"We'll have to go through a battle of the courts," said Irma Westmoreland, a registered nurse who has worked for the VA for nearly 30 years. Since 2010 she has been full-time on union work, representing nurses at 23 VA facilities across 12 states.

She said she is one of four registered nurses, out of 11,000 in the region she represents, who work full time on union responsibilities. Most clinicians split up the hours required for union duties, Westmoreland added: some of the 430 people in roles specified by the decision may spend as little as one hour per week on union work.

She also acknowledged that Congress has granted the VA secretary wide authority, and there aren't arbitration or appeals processes to reverse this kind of decision outside the courts.

"This shows why the rules that Congress has put in place to assist the VA need to be repealed, because whoever is in the position can make unfettered decisions," she added. "They abuse their power all the time, and you have to be able to prove that they overstep their bounds."

In this case, she feels the unions can prove this action is an overstep by Wilkie.

Curt Cashour, a spokesperson for the VA, said that federal law bars the Title 38 medical employees from using official time "when it negatively impacts patient care." He added in an email that "certain matters are precluded from collective bargaining for Title 38 employees, including matters related to direct patient care."

"As stated in VA's repudiation notices to labor unions, Title 38 employees will no longer be able to utilize official time as doing so negatively impacts direct patient care," Cashour said. "Federal agencies are allowed to repudiate collective bargaining agreements or provisions thereof that conflict with law."

Thursday's decision and the subsequent outcry follow months of bad blood between the VA and the unions after President Donald Trump issued a May 25 executive order to limit the hours federal workers spend salaried time on union duties to 25%.

The order, which called out VA employees including 74 nurses, spurred a lawsuit from the American Federation of Federal Employees, filed in the U.S. District Court of the District of Columbia.

Judge Ketanji Brown Jackson in a mixed judgment specifically invalidated that provision of the order.

"As to the merits of the Unions' contentions, while past precedents and pertinent statutory language indicate that the President has the authority to issue executive orders that carry the force of law with respect to federal labor relations, it is undisputed that no such orders can operate to eviscerate the right to bargain collectively as envisioned in the FSLMRS (Federal Service Labor-Management Relations Statute)," Jackson wrote in an Aug. 25 decision. "In this Court's view, the challenged provisions of the executive orders at issue have that cumulative effect."

Cashour said that the latest VA administrative action "had nothing to do with any executive orders."

Debate over salaried VA medical workers has been ongoing on Capitol Hill. The VA is the only federal department that employs Title 38 medical workers, who were granted collective bargaining rights under the VA Labor Relations Act of 1991. In 2005, they were allowed to start using official time.

Official time accounts for about $32.5 million in VA salaries as of fiscal 2017, according to data from the Government Accountability Office. This was up from about $22 million in fiscal 2016.

A breakdown of the GAO data obtained by Modern Healthcare in June showed that the number of medical clinicians who worked official time varied. Boston's VA health system paid three nurses working 100% official time salaries ranging from $115,000 to $138,000, for example.

Westmoreland said numbers cited by the administration are misleading because they tally up the total number of work hours and accompanying salaries of all VA medical workers who log any official time to show how many federal dollars are being funneled to union work.

"What they are forgetting to say is that Congress said it was in the interest of taxpayers to have folks on official time, because it keeps us having open lines of communication and helps us settle issues faster," she said.

She added that no matter whether she is involved in hands-on care or as a nurse representative she is working for the veterans and said medical workers have been unfairly targeted by the move, particularly since many of the VA's nonmedical personnel also work official time on federal salaries.

"Nurses stand up for the patients, and I need to stand up for the nurses so when they feel they have to whistleblow about a problem, or about patients getting abused, it needs to be reported—they need someone to stand up for them."

In Congress, Rep. Jodey Arrington (R-Texas) sponsored a bill that would essentially codify into law a stronger version of the official time curbs of the court-invalidated provision of Trump's executive order. With the Democrats taking control of the House in January, it's unlikely the legislation will advance.

Sen. Ted Cruz (R-Texas) introduced a companion bill in the Senate.

Current House VA Committee Chair man Phil Roe (R-Tenn.) supports the latest action, a committee aide said.

"Roe's No. 1 concern is that veterans are receiving the care and support they deserve," the aide added. "It is imperative that taxpayer-funded dollars are not being wasted and that the doctors, nurses, and other medical professionals at the VA are doing the jobs they were hired to do so veterans are able to receive timely and quality care."

Westmoreland has already made plans to report back for clinical work Nov. 15 at her home VA facility in Augusta, Ga. But as the battle heads to the courts she said she will continue representing the nurses in her region.

"I will be doing it on my off-time," she said. "I will do it before work, after work, and lunch time."