Dear Bargaining Unit Employee:

We want to update you on the letter we provided in November last year concerning the VA’s actions with Title 38 Union representatives and answer some questions you may have had.

As a reminder, on November 8, 2018, the Department notified AFGE that it would be repudiating several provisions of our Master Agreement effective on November 15, 2018. The notice rescinded nearly 30 provisions of our agreement regarding the use of official time that the Department has deemed to be inconsistent with 38 U.S.C. 7422.

Q: Which employees are considered Title 38?

A: Title 38 positions are the occupations listed in 38 U.S.C. 7401(1). Those occupations are: physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants, expanded-duty dental auxiliaries, and chiropractors.

Q: What is 38 U.S.C. 7422?

A: 38 U.S.C. 7422 is the law that granted Title 38 employees collective bargaining rights, such as the right to file grievances, be represented by a union, and negotiate conditions of employment. However, a section of 38 U.S.C. 7422 allows the Secretary of the VA to exempt certain matters from collective bargaining. Those matters must fall into one of the following categories: (1) professional conduct or competence, (2) peer review, or (3) compensation. The Secretary has used this authority to exempt a broad range of matters that are routinely bargained over by other employees at the VA and other agencies, including those that also directly involve health care delivery, such as grievances on the improper staffing of PACT teams or bargaining over the criteria for physician’s performance pay. Challenges to the Secretary’s use of this authority must be filed in federal court.

Q: What did the November 8, 2018 change actually do?

A: 38 U.S.C. 7422 defines professional conduct or competence as “direct patient care” or “clinical competence.” The VA’s November 8, 2018 notice prohibits any employee in a Title 38 position from using official time because it claims the use of official time negatively impacts direct patient care.

Q: Does the use of official time negatively impact direct patient care?

A: NO! Direct patient care means how care is delivered. If care for a patient is not assigned, then direct patient care is not affected. There are management officials that never provide patient care, but not at any time did the VA claim they had a negative impact on patient care. This is simply another attack on the Union, which is why AFGE has filed a lawsuit in federal court. The lawsuit is still pending.

Q: What else is being done to challenge this?

A: In addition to the lawsuit, the Union has filed a national grievance challenging the VA’s conduct. We expect the lawsuit and the grievance to take at least one year before we see a resolution. Our lobbying team has also been able to get a bill, H.R. 1133, introduced in the U.S. House of Representatives that provides Title 38 employees with full collective bargaining rights, called the “VA Employee Fairness Act.” A Senate bill has also been introduced, S. 462. These bills will eliminate the Secretary’s authority to exempt certain matters from collective bargaining.

Q: What does all this mean for you?

A: This means the VA is not allowing Title 38 employees to represent you on official time. However, you are still a bargaining unit employee entitled to representation and collective bargaining rights. T38 employees are able to represent you on their own time. Also, we will make sure you have a representative for all matters in which you are entitled, and we will continue to bargain on your behalf. So, continue contacting the Local for all your needs as usual.

Please send your issues to: comments@afge477.org so it can be addressed by our local staff.

In solidarity,

Kip Chappell

Local # 477