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Historically, full-time physicians, dentists, podiatrists, chiropractors, and optometrists (collectively, “physicians”) accrued and used leave in “daily” increments. AFGE/NVAC represents approximately 18,000 full-time physicians across the country. Physicians earn 26 “days” of annual leave and 13 “days” of sick leave per calendar year, and historically, they also used that leave in increments of “days.” Physicians are compensated based on 24/7/365 availability and regularly work long and irregular tours of duty. Therefore, each “day” of leave covered their entire shift regardless of whether they worked, for example, 8, 10, 12, or 13-hour days.
In August 2017, the Agency notified the Union of its desire to revise VA Handbook 5011 to include variable work schedule provisions and to change leave policy for physicians. The Agency explained that this change would convert leave accruals from “days” to “hours” and reduce the “minimum charge” for leave to hourly increments. Implementation of this change (VA Handbook 5011/32) was then put on hold pending system enhancements to VATAS. On August 28, 2019, the Agency published a bulletin explaining that existing leave balances would be converted to hourly increments on September 15, 2019, with each day equaling only 8 hours regardless of an employee’s unique tour of duty. The Union immediately raised concerns with VHA senior leadership at a meeting in Washington, DC in early September 2019. We explained that this change would penalize physicians working alternative work schedules and would unjustifiably result in the forfeiture of accrued leave balances. Our follow-up emails to VHA leadership were not answered.
On September 15, 2019, the Agency retroactively converted existing leave balances from “days” to “hours” using an 8-hour multiplier regardless of the employee’s unique tour of duty. This conversion resulted in substantial harm to bargaining unit employees.
On October 9, 2019, NVAC filed a National Grievance alleging that the Agency violated law and the 2011 Master Agreement by implementing VA Handbook 5011/32 and retroactively converting physician leave balances. While the Deputy Under Secretary for Health for Operations and Management later agreed, on November 12, 2019, that VHA would complete a “One-Time Modification to Leave Conversion Rates” as of September 15, 2019 to address this issue, the Agency never implemented that one-time modification. Thus, the Parties proceeded to arbitration on August 7, 2020.
On December 30, 2020, the Arbitrator issued an award sustaining the Grievance and found that the Agency violated law and contract by implementing VA Handbook 5011/32 and retroactively converting accrued leave balances. The Arbitrator further found that the Agency’s actions constituted an unjustified or unwarranted personnel action for purposes of the Back Pay Act. He ordered the Agency to make-whole any physician impacted by these violations within 60 days and to email a notice posting to all AFGE bargaining unit employees within 45 days to remedy its unfair labor practice. A copy of the arbitration award is attached here.
Further updates on this case will be distributed to the field as they become available. If you have questions in the meantime, please contact the NVAC Legal Team at nvacattorney@afge.org. Thank you.
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