Labor Dispute Opens New Front in Fight to Privatize the VA

Robert Wilkie. Photo: Alex Wong/Getty Images

During his Senate confirmation hearing, Robert Wilkie, the secretary of the Department of Veterans Affairs, said he wouldn’t privatize the VA’s health-care services. He’s since repeated that promise to veterans themselves. “The private sector cannot replicate VA’s expertise in things like spinal cord injury, traumatic brain injury, rehabilitative services, prosthetics, audiology, services for the blind, suicide prevention,” he told members of the American Legion in 2018.

But Wilkie was nominated by President Trump, who has surrounded himself with advocates for the privatization of the VA since taking office. His decision to fire Wilkie’s predecessor, David Shulkin, an Obama appointee who opposed privatization, may not have had as much to do with Shulkin’s alleged spending improprieties as it did with months of sustained lobbying against the secretary from allies of Concerned Veterans for America. The Koch-backed advocacy group supports an expansion of private-sector care for veterans — and Wilkie, since his confirmation, has deviated little from that goal.

On Wilkie’s watch, the VA has begun to shrink. (The VA reached out following publication to dispute this, stating: ‘Since last quarter, VA achieved a net increase of 3,043 employees and maintained a vacancy rate of approximately 11 percent.”) The department, which provides free or low-cost health care to around 9 million enrolled veterans as part of its mission to support former service members, has nearly 49,000 unfilled vacancies. Meanwhile, the Mission Act, which will expand the VA’s privatized community-care network for eligible veterans, is scheduled to take effect in June.

Now, a nascent contract dispute between the VA and the American Federation of Government Employees may bolster fears that Wilkie’s reforms are privatization in all but name. On Thursday, the VA submitted a proposal to renegotiate its collective-bargaining agreement with the AFGE, which represents around 250,000 department employees. The department’s proposals would drastically reduce the amount of time employees are allowed to spend on union business during the workday, among other changes. In a press release, the VA said it hoped to reduce staffers’ union time from 1 million hours per year to around 10,000, a change that would, it claimed, direct “more than $48 million per year” back to aiding veterans. The press release was otherwise light on detail, though in it, Secretary Wilkie described this as “a reset” of the VA’s relationship with the AFGE. “With VA facing thousands of vacancies, these proposals could add more than 1 million man-hours per year back into our work force — a vital influx of resources that would make an almost immediate difference for veterans and the employees who care for them,” Wilkie said.

These restrictions on union time would make it difficult, if not quite impossible, for staff to conduct legally permissible union business during work hours. And the VA’s plan goes even further. According to a copy of the proposal package provided by the union, the VA wants to eliminate 28 provisions of the department’s current collective-bargaining agreement. Union representatives would lose their offices inside VA facilities, and could no longer use VA equipment to carry out their duties. The department’s new contract with AFGE would last for ten years, but only the VA could make changes to it during that time; the union would be prohibited from doing the same. The VA seeks to weaken the grievance procedures set out in its previous agreement with AFGE. Communication between the union and the department would have to take place entirely at the national level. Employees who need to file grievances, for example, would no longer be able to do so at the local level. The union believes this could create a bottleneck that would slow the processing of employee grievances. The union also alleges that at least two of the VA’s proposals — to require the union to pay for the time management spends on union business, and to pay attorneys’ fees to the VA — would violate existing labor law.

Contacted for comment, VA press secretary Curt Cashour directed New York to a May 2 editorial published by Wilkie on InsideSources.com. In it, the secretary said that the department’s reforms would “make sure that the contract does not interfere with the department’s ability to take action against poor performers” and eliminate language in the previous agreement that “has effectively allowed the union to co-manage the VA.”

Asked specifically about the union’s claim that some of the proposals are illegal, Cashour said, “When department employees and attorneys — at the demand of the union — are required to cease providing medical care and support for veteran services, to prepare for and engage in union-demanded activities such as grievances, disciplinary appeals, or arbitration, it’s only fair for the union to reimburse taxpayers for this time spent not taking care of veterans.”

David Cann, AFGE’s director of field services and education, told New York on Monday that the VA’s proposals “are unique.” He added, “What I’m seeing out of the VA is the most both-barrels anti-union effort that I’ve seen in my time with AFGE.” The VA’s proposals resemble executive orders that Trump signed last May. One would have significantly reduced the amount of time that federal workers are allowed to spend on union business. AFGE sued the administration and won an injunction in August that blocked certain provisions of the orders from going forward. The Trump administration appealed the injunction, and the case is ongoing. “For whatever reason, the VA is acting in contravention of that injunction, and proposing limitations on the rights of members that are exactly the same as what the court has said they’re not allowed to do,” Cann said.

The VA’s proposal package seems to be “a clear case of failing to bargain in good faith, which is an unfair labor practice under the relevant statute,” Joseph Slater, the Eugene M. Balk professor of law and values at the University of Toledo, told New York in an email. Slater, who has reviewed a summary of the VA’s proposals, added that provisions “strike me as illegal bargaining proposals on their own,” including the provision that would allow only the VA to make changes to the contract once it’s in place. “The ten-year duration is clearly trying to lock in extreme terms for an unusually long time, which is commonly held to be bargaining in bad faith. Eliminating procedures and appropriate arrangements generally seems legally dicey to me too, as those are statutory rights,” he continued.

“I could go on,” he concluded, “but this is a set of radical, unworkable proposals that no union would agree to.”

The VA isn’t the first federal agency to call for a draconian renegotiation of its collective-bargaining agreement with AFGE. The Social Security Administration has proposed similar changes to its union contract, down to the removal of union representatives from their offices inside SSA buildings. Contract negotiations with AFGE may become not just a backdoor for the Trump administration to get around the injunction, but the locus at which its antipathy to the federal workforce meets its hostility toward unions.

The first two years of Trump’s presidency have already been difficult for the federal workforce. One of Trump’s first actions as president was to implement a temporary federal hiring freeze. He’s overseen two significant government shutdowns, the most recent of which lasted for five weeks and cost federal employees two pay periods. (Though federal workers received back pay after the government reopened, many federal contractors did not.) The VA isn’t the only federal agency facing a staffing crisis, either. Though the status of the VA’s workforce has a clear, disproportionate effect on veterans, so too does the state of the federal workforce at large. A third of federal employees are veterans. Cann told New York that AFGE believes that figure is even higher for employees of the VA.

But the fact that Wilkie is pursuing certain conflict with AFGE, instead of filling his department’s vacancies, kindles a fear specific to the VA: that the secretary intends to let the VA atrophy and funnel more and more veterans into private medical care. “If we really want to fix the VA so badly, let’s start hiring, and fill up some of those 49,000 [staff] vacancies,” Representative Alexandria Ocasio-Cortez said at a recent town hall co-sponsored by National Nurses United and CommonDefense, a progressive veterans’ advocacy group.

There’s no question that the VA suffers from systemic problems. Twenty-four veterans have died by suicide on VA campuses during the last 18 months, the Military Times reported in April. The department’s tech problems are so pronounced that implementation of the Mission Act may prove disastrous. According to ProPublica, a planned tool to help determine which veterans are eligible for private community care is so unreliable that “it threatens to disrupt the health care of about 75,000 veterans every day.” Nevertheless, a joint study from the Dartmouth Institute for Health Policy and Clinical Practice and the White River Junction VA Medical Center found that VA medical facilities achieve health-care outcomes that are consistently as good as, or even better than, private alternatives in 121 regional markets. In polling, veterans themselves reliably oppose privatization, though they’re less hostile to the notion of some community-based choices as a supplement to the VA’s public services. The American Legion, like every other major veterans’ service organization, opposes privatization of the VA.

Alexander McCoy, the political director of Common Defense and a former Marine, told New York that his organization is watching the labor dispute closely. “The secretary of Veterans Affairs and Trump are trying to use veterans as props for union-busting,” he said. “This isn’t about improving our health care or fixing problems with the VA. They’re punishing workers for their own campaign to starve the VA.”

Kate Hoit, an Army veteran affiliated with VoteVets, a progressive organization that has repeatedly sued the Trump administration for its handling of the VA, agreed. “First and foremost, our concerns rest in the fact that the changes in the collective bargaining agreement will make the VA a worse place to work and therefore result in worse care for veterans,” Hoit said in a statement to New York.

Private-sector unions, too, worry that the VA’s contract proposals belie its commitment to privatization. Sara Nelson, who heads the Association of Flight Attendants-CWA and called for a general strike in response to the latest government shutdown, said that it’s “no surprise” that the Trump administration would target AFGE’s VA members, who have traditionally enjoyed a robust contract. “It’s all a direct attack on VA workers and their union,” Nelson said in a statement to New York. “Why? Because they are the ones demanding accountability at the VA, they are the ones blowing the whistle on waste and fraud, they are the ones standing in the way of privatization. That’s the ultimate goal: privatize the VA so the giant health care corporations can reap the billions spent on caring for our veterans, ignoring the fact that veterans overwhelmingly prefer the VA to private healthcare.”

AFGE will likely need all the support it can get. Slater, the law professor, cautioned that if the union wanted to file an unfair labor practices charge against the VA, it may have difficulty finding relief. Trump took until March of this year to nominate a general counsel to the U.S. Federal Labor Relations Authority, the body responsible for addressing labor grievances against federal agencies. Unions have already criticized Trump’s FLRA pick, Catherine Bird. National Treasury Employees Union president Tony Reardon told Bloomberg Law that Bird, who formerly worked in the office of general counsel for the Department of Health and Human Services, was “directly involved in the agency’s bad faith bargaining last year.” Reardon added that his union has filed four grievances against HHS for unfair labor practices. Even if Bird is confirmed, Bloomberg Law said she’ll have to process an extensive backlog of cases because the office has been vacant for two years.

Federal law also prohibits VA employees from going on strike, which further restricts AFGE’s options as it navigates contract negotiations. But Cann said that the union is considering other forms of direct action. “Getting people involved, doing petitions, doing informational rallies, applying pressure on the agency by pointing out their hypocrisy and their anti-union animus, reaching out to the handful of friends we have on the Hill, we plan on doing all of that,” he said, adding, “We’re counting on employees who care so much about the work they do as caregivers to veterans to be willing to stand up, and get involved in this campaign, and object to having their voices silenced.”

Disclosure: The author’s fiancé is a veteran who uses VA health services.

This post has been updated to include the VA’s response, and additional information about the number of vacancies at the VA.

Labor Dispute Opens New Front in Fight to Privatize the VA