NVAC PIP Arbitration Victory

(November 16, 2020) 

To further improve communication lines and respond to the concerns between the National VA Council and you, our members, I have established a National VA Council Briefing. This NVAC Briefing will bring you the latest news and developments within DVA and provide you with the current status of issues this Council is currently addressing. I believe that this NVAC Briefing will significantly enhance how we communicate, and how we share new information, keeping you better informed. 

Alma L. Lee

National VA Council, President

In This Briefing: PIP Arbitration Victory: FLRA Decision

Following the passage of the Veterans Affairs Accountability and Whistleblower Protection Act of 2017, the VA took the position that it no longer had to comply with Article 27, Section 10 of the 2011 Master Agreement and provide performance improvement plans (PIPs) to employees before initiating performance-based action under the Accountability Act.  Despite NVAC’s early efforts to explain to the VA that its legal position was incorrect, the VA refused to comply with our contract.  NVAC filed a National Grievance on September 29, 2017. 

On August 23, 2018, Arbitrator Jerome Ross sustained NVAC’s national grievance and found that the VA violated law and contract by failing to provide PIPs to employees before taking performance-based actions under the Accountability Act.  The Arbitrator ordered the VA to comply with the 2011 Master Agreement, to rescind any performance-based actions taken against employees who did not first receive a PIP that complied with Article 27, and to make-whole affected employees with reinstatement, backpay, leave, other benefits, and attorney’s fees. 

However, on September 24, 2018, the VA filed exceptions to this arbitration award.  We have been waiting for the FLRA’s decision for more than two years.  Earlier today, in a 2-1 decision, the FLRA denied the VA’s exceptions and upheld the arbitration award.  A copy of the decision is attached. 

The FLRA found it had jurisdiction to resolve the dispute and denied all of the VA’s arguments, including that the arbitration award was contrary to law, that the Arbitrator exceeded his authority, and that the award did not draw its essence from our contract.  In sum, the FLRA agreed with the Arbitrator’s conclusion that Article 27, Section 10 of the 2011 Master Agreement (requiring 90-day PIPs) is not contrary to the Accountability Act because the contract governs what must happen prior to initiating a performance-based action, while the procedures and timelines in the Accountability Act only govern what happens after the VA initiates a performance-based action.  This is the exact same argument that NVAC raised with the VA in the summer of 2017. 

This is a major victory for NVAC.  We are proud of this result and thank you for your patience and support during this years-long dispute with the VA.