AFGE, NFFE, NAGE vs. VA

Case 1:18-cv-02629 Document 1 Filed 11/14/18 Page 1 of 24
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
AMERICAN FEDERATION OF GOVERNMENT )

EMPLOYEES, AFL-CIO )
80 F St N.W. )
Washington, D.C. 20001 )
)
NATIONAL FEDERATION OF FEDERAL )
EMPLOYEES, FD-1, IAMAW, AFL-CIO )
1225 New York Avenue, N.W., Suite 450 )
)
and )
)
NATIONAL ASSOCIATION OF GOVERNMENT )
EMPLOYEES, INC., )
159 Burgin Parkway )
Quincy, MA 02169 )
)
Plaintiffs, )
)
v. ) Civil Action No.
)
ROBERT WILKIE )
In his official capacity as Secretary of Veterans Affairs )
Department of Veterans Affairs )
810 Vermont Avenue, N.W. )
(202) 273-5400 )
)
Department of Veterans Affairs )
810 Vermont Avenue, N.W. )
(202) 273-5400 )
)
Defendants. )
_______________________________________________ )
COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF
INTRODUCTION
1
Plaintiffs bring this action to hold unlawful and set aside determinations by the U.S.
Department of Veterans Affairs (“VA”) that, effective November 15, 2018, employees who
occupy positions listed in 38 U.S.C. Section 7421(b) may not, under any circumstances, perform
union representational activities while on “official time,” notwithstanding that, inter alia, 5
U.S.C. Section 7131 specifically guarantees employees the right to engage in such union
representational activities while on official time. Plaintiffs are the American Federation of
Government Employees, AFL-CIO (“AFGE”), the National Federation of Federal Employees,
FD-1, IAMAW, AFL-CIO (“NFFE”) and the National Association of Government Employees,
Inc. (“NAGE”). The VA issued separate copies of these determinations, which it entitled in each
case “Notice of Repudiation” (hereinafter referred to collectively as the “Official Time
Determination”) to each plaintiff union dated November 7, 2018. True and accurate copies of
the Official Time Determination received by AFGE, NFFE and NAGE are attached to this
complaint as Exhibits 1- 3 respectively.
The Official Time Determination is contrary to 38 U.S.C. § 7422 and to the Federal
Service Labor Management Relations Statute, 5 U.S.C. § 7101, et seq. (hereinafter “Chapter
71”). Chapter 71 establishes a comprehensive labor relations scheme for federal sector
employees and their unions. See, e.g., AFGE, et al. v. Trump, et al., 318 F. Supp. 3d 370 (D.D.C.
2018). As part of this scheme, 5 U.S.C. Section 7131 specifically authorizes federal employees
to receive official time for work performed by unions in support of bargaining unit employees.
Plaintiff unions are certified as the exclusive representative of bargaining unit employees at their
workplace.
Section 7422 of Title 38 (“Section 7422”) creates a narrow exception for certain VA
positions listed in Section 7421 (“Title 38 employees”). Section 7422 allows the Secretary of the
2
VA to prescribe by regulation the hours and conditions of employment for Title 38 employees
and to remove certain matters relating to Title 38 employees from collective bargaining in three
delineated instances: (1) professional conduct or competence, (2) peer review, and (3) the
establishment, determination, or adjustment of employee compensation. 38 U.S.C. Section
7422(b). But outside of these three discrete instances, the Secretary’s authority to prescribe
regulations regarding Title 38 employees is subject to the right of Federal employees to engage
in collective bargaining pursuant to Chapter 71. 38 U.S.C. Section 7422(a). See AFGE, et al. v.
Trump, et al., 318 F. Supp at 434 (“Congress enacted [Chapter 71] to protect and preserve
collective bargaining rights, not to destroy them. . . Quite frankly, it is hard to even imagine a
rational statutory exception that is intentionally designed to swallow the rule.”)
The Official Time Determination is unsupported and unsupportable. The use of official
time by Title 38 employees does not fall under the statutory exemption from collective
bargaining for professional conduct and competence contained in 38 U.S.C. Section 7422.
Plaintiffs therefore seek a judgment declaring that the Official Time Determination is invalid and
setting it aside pursuant to 5 U.S.C. 706(2)(A) and (C) because it is arbitrary and capricious, an
abuse of discretion and contrary to law and exceeds the VA Secretary’s authority under 38
U.S.C. Section 7422.
I. JURISDICTION
1. This court has jurisdiction under 28 U.S.C. §§ 1331, 2201 and 2202; 38 U.S.C. § 7422(b)
and (d); and 5 U.S.C. § 701 et seq.; see AFGE Local 446 v. Nicholson, 475 F.3d 341,
347-350 (D.C. Cir. 2007).
3
II. VENUE
2. Venue lies in this court under 28 U.S.C. § 1391(e)(1) and (2).
III. PARTIES
3. Plaintiff AFGE is a national labor organization and unincorporated association
having its headquarters at: 80 F Street N.W., Washington, D.C. 20001. AFGE
represents approximately 650,000 federal civilian employees in agencies and
departments across the federal government, including approximately 350,000
federal civilian employees in the VA.
4. AFGE and its affiliated councils and locals are the certified exclusive representative,
under 5 U.S.C. § 7111, of employees at the VA.
5. AFGE is an exclusive representative of a consolidated unit in the VA which includes
Title 38 employees.
6. Plaintiff NFFE is an unincorporated association with its principal place of business at
1225 New York Ave., N.W., Suite 450, Washington, D.C. 20005. NFFE is affiliated
with its parent organization the International Association of Machinists and Aerospace
Workers.
7. NFFE is certified as the exclusive bargaining representative of approximately 110,000
federal employees, including Title 38 employees of the VA. As the exclusive
representative of these employees, NFFE advances the social and economic welfare and
education of federal employees by representing their interests through collective
bargaining, filing and arbitrating grievances to uphold the provisions in such agreements,
4
filing complaints with administrative agencies, lobbying Congress for legislative action,
and promoting labor-management partnerships in agency decision-making.
8. Plaintiff NAGE is a national labor organization and is affiliated with the Service
Employees International Union. NAGE in incorporated in the state of Delaware with its
place of business at 159 Thomas Burgin Parkway Quincy, MA 02169.
9. NAGE and its local units are the certified exclusive bargaining representative of
approximately 110,000 employees, including nearly 75,000 federal employees. NAGE
represents bargaining units in the VA. These units include Title 38 employees.
10. NAGE and its locals are the certified exclusive representative, under 5 U.S.C. § 7111, of
employees at the VA.
11. NAGE is an exclusive representative of a consolidated unit in the VA which includes
Title 38 employees.
12. Defendant Robert Wilkie is the Secretary of the U.S. Department of Veterans Affairs. He
is sued solely in his official capacity.
13. The U.S. Department of Veterans Affairs is a federal agency whose headquarters are
located at 810 Vermont Avenue N.W. Washington, D.C 20420.
IV. FACTS
The Federal Service Labor-Management Relations Statute (Chapter 71)
14. 5 U.S.C. Chapter 71 governs labor relations in the federal civilian workplace.
15. When enacting Chapter 71, Congress explicitly found that labor organizations and
collective bargaining are in the public interest. 5 U.S.C. § 7101(a).
5
16. 5 U.S.C. § 7102, as part of Chapter 71, protects the right of employees to form, join, or
assist any labor organization freely and without fear of penalty or reprisal.
17. 5 U.S.C. § 7131(a) provides that employees representing an exclusive representative shall
be authorized official time to negotiate a collective bargaining agreement.
18. 5 U.S.C. § 7131(c) provides that the Federal Labor Relations Authority shall determine,
except as provided in § 7131(a), whether employees are entitled to official time in any
phase of proceedings before the Authority.
19. 5 U.S.C. § 7131(d) provides that “any employee representing an exclusive
representative,” or “in connection with any other matter covered by this chapter, any
employee in an appropriate unit represented by an exclusive representative, shall be
granted official time in any amount the agency and the exclusive representative involved
agree to be reasonable, necessary, and in the public interest.”
38 U.S.C. Sections 7421 and 7422
20. 38 U.S.C. Section 7421 provides that the Secretary of the VA “shall prescribe by
regulation the hours and conditions of employment and leaves of absence of employees
listed in 38 U.S.C. Section 7421(b).”
21. 38 U.S.C. § 7421(b) refers to the following Title 38 positions: Physicians, Dentists,
Podiatrists, Optometrists, Registered Nurses, Physician Assistants, Expanded-Duty
Dental Auxiliaries, and Chiropractors.
22. 38 U.S.C. Section 7422(a) provides “Except as otherwise specifically provided in this
title, the authority of the Secretary to prescribe regulations under section 7421 of this title
is subject to the right of Federal employees to engage in collective bargaining with
respect to conditions of employment through representatives chosen by them in
6
accordance with chapter 71 of title 5 (relating to labor-management relations).”
23. 38 U.S.C. § 7422(b) provides: “Such collective bargaining . . . in the case of employees
described in section 7421(b) of this title may not cover, or have any applicability to, any
matter or question concerning or arising out of (1) professional conduct or competence,
(2) peer review, or (3) the establishment, determination, or adjustment of employee
compensation under this title.”
24. 38 U.S.C. § 7422(c) provides: “For purposes of this section, the term ‘professional
conduct or competence’ means any of the following: (1) Direct patient care. (2) Clinical
competence.”
25. 38 U.S.C. § 7422(d), provides that “an issue of whether a matter or question concerns or
arises out of (1) professional conduct or competence, . . . shall be decided by the
Secretary and is not itself subject to collective bargaining and may not be reviewed by
any other agency.”
The VA/AFGE Master Agreement
26. The VA and AFGE executed a national collective bargaining agreement on March 15,
2011 (hereinafter “VA/AFGE Master Agreement”).
27. Eric K. Shinseki, then Secretary of the U.S. Department of Veterans Affairs, approved
the VA/AFGE Master Agreement, including those articles governing the use of official
time under 5 U.S.C. § 7131.
28. The Duration of Agreement provision stated that the VA/AFGE Master Agreement
would be implemented and become effective after it had been approved, ratified, signed
by the Parties, and subjected to Agency head review pursuant to 5 U.S.C. § 7114(c).
29. The VA/AFGE Master Agreement remains in effect.
7
30. Article 48, Section 1(B) of the VA/AFGE Master Agreement states, “As provided in 5
U.S.C. § 7131, official time shall be granted as specified in law and in any additional
amount the Department and the Union agree to be reasonable, necessary, and in the
public interest. Official time shall be granted for activities as specified in law and in
amounts specified by this Agreement or otherwise negotiated.”
31. Article 48, Section 2 of the VA/AFGE Master Agreement sets forth agreed-upon amounts
of official time for Union officials designated at the national and district levels.
32. Article 48, Section 10 of the VA/AFGE Master Agreement sets forth agreed-upon
amounts of official time for Union officials designated at the local level.
33. Pursuant to the VA/AFGE Master Agreement, other collectively bargained agreements
between AFGE and/or its affiliated councils and locals and the VA, and past practice,
Title 38 employees in the AFGE/VA bargaining unit have received official time.
The VA/NFFE Master Agreement
34. The VA and NFFE executed a national collective bargaining agreement on June 6, 2011
(hereinafter “VA/NFFE Master Agreement”).
35. Eric K. Shinseki, then Secretary of the U.S. Department of Veterans Affairs, approved
the VA/NFFE Master Agreement, including those articles governing the use of official
time under 5 U.S.C. § 7131.
36. The Duration of Agreement provision stated that the VA/NFFE Master Agreement would
be implemented and become effective after it had been approved, ratified, signed by the
Parties, and subjected to Agency head review pursuant to 5 U.S.C. § 7114(c).
37. The VA/NFFE Master Agreement remains in effect.
8
38. The VA and NFFE are in bargaining over a successor agreement to the VA/NFFE Master
Agreement, pursuant to the terms of a private settlement agreement between the parties
reached on or about January 31, 2018.
39. Article 2 of the VA/NFFE Master Agreement provides, among other things, that NFFE
has the exclusive right to represent employees in presenting grievances (Art. 2, Sec.
1(C)); the Union has the right to attend all discussions between the Employer and
employee(s) conducted to resolve grievances (Sec. 1(D); the Union will be given the
opportunity to represent employees at formal meetings (Sec 2(A)); and establishes the
right for Union representatives to hold and attend meetings with the Agency and among
themselves (Art. 2, Sec. 5). Art. 2, Sec. 3. Article 48, Section 2 of the VA/AFGE Master
Agreement sets forth agreed-upon amounts of official time for Union officials designated
at the national and district levels.
40. Article 2, Section 8 details official time that is automatically granted to certain NFFE
officers and locals, so that they need not request official time for each pay period where
they work to represent NFFE bargaining unit members. Article 2 establishes that certain
NFFE officers are granted official time as a set percentage of their work week. For
example, the NFFE VA Council President is on 100% official time, whereas NFFE
Council Vice Presidents are on 20% official time. Art. 2, Sec. 8.
41. Article 2, Sec. 8 is the main grant of official time to NFFE officers under 5 U.S.C. §7131
(d); however, official time appears, incidentally, elsewhere throughout the collective
bargaining agreement. See, for example, Art. 10, Sec. 5 (“All partnership activities and
preparation will be conducted on official time.”).
9
42. Pursuant to the VA/NFFE Master Agreement, other collectively bargained agreements
between NFFE and/or its affiliated councils and locals and the VA, and past practice,
Title 38 employees in the NFFE/VA bargaining unit are granted official time.
The VA/NAGE Master Agreement
43. The VA and NAGE executed a national collective bargaining agreement on September
27, 2016 (hereinafter “VA/NAGE Master Agreement”).
44. Robert A. McDonald, then Secretary of the U.S. Department of Veterans Affairs,
approved the VA/NAGE Master Agreement, including those articles governing the use of
official time under 5 U.S.C. § 7131.
45. The Duration of Agreement provision stated that the VA/NAGE Master Agreement
would be implemented and become effective after it had been approved, ratified, signed
by the Parties, and subjected to Agency head review pursuant to 5 U.S.C. § 7114(c).
46. The VA/NAGE Master Agreement remains in effect through September 30, 2019, at
which point it will automatically be renewed for a period of three (3) years, or, if either
party choses to open the contract for renegotiations, remain in full force and effect during
the renegotiation of the VA/NAGE Master Agreement.
47. Article 6, Section 1(D) of the VA/NAGE Master Agreement states, “Consistent with the
requirements of this Article, should the Union exhausts [sic] its allocations of official
time in Sections 2 and 3 below, any additional requested time will be provided consistent
with 5 USC 7131.”
48. Article 6 Section 2 of the VA/NAGE Master Agreement sets forth agreed-upon amounts
of official time for Union officials designated at the national level.
10
49. Article 6, Section 3 of the VA/NAGE Master Agreement sets forth agree-upon amounts
of official time for Union officials designated at the local level.
50. Article 6, Section 4 of the VA/NAGE Master Agreement sets forth the activities official
time may be used for.
51. Pursuant to the VA/NAGE Master Agreement, other collectively bargained agreements
between NAGE and/or its locals and the VA, and past practice, Title 38 employees in the
NAGE/VA bargaining unit are granted official time.
The Official Time Determination As to AFGE
52. On November 7, 2018, Jacquelyn Hayes-Byrd, Acting Assistant Secretary for Human
Resources and Administration of the VA, issued the Official Time Determination at issue
in this case.
53. The Official Time Determination stated that, “pursuant to 38 U.S.C. § 7422, employees
described in 38 U.S.C. § 7421(b) (“Title 38 employees”) may no longer utilize official
time because the use of official time by Title 38 employees negatively impacts direct
patient care.”
54. Regarding the VA/AFGE Master Agreement, the Official Time Determination stated that
“[t]he official time exclusion applies to all Title 38 employee official time provisions
found in the VA/AFGE Master Agreement, as well as any Memorandum of
Understanding (“MOU”), past practices, supplemental agreements, and collectively
bargained agreements with AFGE that are currently in effect.”
55. The Official Time Determination listed the following articles of the VA/AFGE Master
Agreement as containing provisions that reference official time and were therefore
impacted by the Official Time Determination:
11
Articles 3: Labor Management Cooperation
Section 7—Use of Time
Article 4; Labor Management Training
Section 3—Joint Management Training;
Article 5: Labor Management Committee
Article 7: Quality Programs
Section 2-General
Section 3—Quality Programs Council Charter
Section 4—Official Time Usage
Section 5—Labor Management Forums and Official Time
Section 6—Performance Evaluation
Section 7—Return to Duty of 100% Union Representative
Article 8: Child Care
Section 33—Local Child Care Committees
Article 18 Equal Employment Opportunity
Section 7—VA Diversity Council/EEO Committees
Article 27: Performance Appraisal
Section 3—Policy
Article 29: Safety, Health and Environment
Section 2—National Safety and Health Committee
Section 3—Union Participation
Article 45: Dues Withholding
Section 6—Revocation for Bargaining Unit Employees
12
Article 46: Local Supplement
Section 3—Ground Rules for Negotiating Local Supplemental Agreements
Article 47: Mid-Term Bargaining
Section 2-National
Section 4—Local
Article 48: Official Time
Section 1—Purpose
Section 2—Designated Union Officials/Representatives
Section 3—Accumulated Official Time
Section 4—Additional Time Allotted
Section 5—Travel to Other Locations
Section 6—Other Activities
Section 7—Performance Evaluation
Section 10—Local
Article 49: Rights and Responsibilities
Section 9—New Employee Orientation
56. The Official Time Determination stated, “Beginning on November 15, 2018, the
Department will no longer comply with the official time provisions for Title 38
employees contained in the VA/AFGE Master Agreement, any MOUs, past practices,
supplemental agreements, and any other collectively bargained agreements currently in
effect.”
13
The Official Time Determination As to NFFE
in this case.
patient care.”
59. Identically to the VA/AFGE Official Time Determination - the VA/NFFE Master
Agreement Official Time Determination stated that “[t]he official time exclusion applies
to all Title 38 employee official time provisions found in the VA/NFFE Master
Agreement, as well as any Memorandum of Understanding (“MOU”), past practices,
supplemental agreements, and collectively bargained agreements with AFGE that are
currently in effect.”
60. The Official Time Determination listed the following articles of the VA/NFFE Master
The impacted VNNFFE Master Agreement articles include:
Article 2 - Union Rights and Representation
Section 2
Section 3
Section 5
Section 8
14
Section 9
Section 11
Section 12
Article 10 - Partnership/Collaborative Relationships
Section 5
Article 21 - Safety and Health
Section 3
Section 4
Article 22 - Leave
Section 7 - Leave Without Pay
Article 26 - Disciplinary Actions, Adverse Actions and Major Adverse Actions
Section 5 – Procedures
Article 27: Employee Assistance Program
Section 1 - Policy
Section 6
Article 37: Labor Management Relations Training
Section 1
Article 41: Childcare
Section 9
Article 43: Alternate Dispute Resolution (ADR)
Section 3
61. The Official Time Determination stated, “Beginning on November 15, 2018, the
Department will no longer comply with the official time provisions for Title 38
15
employees contained in the VA/NFFE Master Agreement, any MOUs, past practices,
supplemental agreements, and any other collectively bargained agreements currently in
effect.”
The Official Time Determination As to NAGE
in this case.
patient care.”
64. Identically to the VA/AFGE Official Time Determination and the VA/NFFE Master
Agreement Official Time Determination, the VA/NAGE Master Agreement Official
Time Determination stated that “[t]he official time exclusion applies to all Title 38
employee official time provisions found in the VA/NAGE Master Agreement, as well as
any Memorandum of Understanding (“MOU”), past practices, supplemental agreements,
and collectively bargained agreements with NAGE that are currently in effect.”
65. The Official Time Determination listed the following articles of the VA/NAGE Master
Article 5: Union rights Responsibilities
Section 8 – New Employee Orientation
Article 6: Official Time
16
Section 1 – General
Section 2- National Union Representatives
Section 3- Local Union Representatives
Section 4- Official Time Usage
Section 5 – Labor Management Forums and Official Time
Section 6 – Performance Evaluation
Section 7 – Return to Duty of 100% Union Representative
Article 10: Labor Management Training
Section 1- Union Sponsored or Requested Labor Management Relations (LMR)
Training,
Section 4 – Joint Master Agreement Training
Section 5 – Joint 3rd Party Sponsored Training
Article 11: Labor Management Cooperation
Section 7 – Use of Time
Article 12: Labor Management Relations Meeting
Article 13: National Consultation Rights and Mid-Term Bargaining
Part A- Section 3- Official Time
Part B – Section 2 General
Article 19: Official Travel
Section 5 – Transportation, Travel and Per Diem
Section 10 – Local Travel
Article 22: Performance Appraisal
Section 8 – Performance Appraisal for Union Officials
17
Article 27: Upward Mobility
Section 3 Administrative Investigation Training
Article 38: Official Records
Section 2- Access to Records
Article 40: Grievance Procedure
Section 7 – Informal Resolution
Article 42: Equal Employment Opportunity (EEO)
Section 7 – Special Emphasis Program Coordinator/EEO Advisory Committee
Article 44: Safety, Health and Environment
Section 2 – Union Participation
Section 32- Ergonomic Lifting
Article 47: VA Drug Free Workplace Program
Section 13 – Union Rights
Article 52: Child and Other Dependent Care
Section 3 – Local Child Care Committees
Article 58: Wage Surveys
Section 2 – Membership Survey Teams
Article 69: Title 38 Professional Standards Boards (PSBs)
Section 2 – Representation
COUNT I
Violation of the Administrative Procedure Act
5 U.S.C. § 706(2)(C)
66. Paragraphs 1 through 65 are hereby incorporated by reference.
18
67. The use of official time by Title 38 employees does not concern professional conduct or
competence within the meaning of 38 U.S.C. § 7422(b) or Section 7422(d).
68. The use of official time by Title 38 employees does not concern direct patient care within
the meaning of within the meaning of 38 U.S.C. § 7422(b), Section 7422(c) or Section
7422(d).
69. By issuing the Official Time Determination that applied the 38 U.S.C § 7422(b)
exclusion to situations that do not pertain to professional conduct or competence within
the meaning of 38 U.S.C. § 7422(b), the VA Secretary violated, misinterpreted, and
misapplied 38 U.S.C. § 7422(b) and (d).
70. By the conduct set forth in paragraphs 1 through 66, the VA Secretary acted outside the
scope of his 38 U.S.C. § 7422(d) authority in violation of 38 U.S.C. § 7422(b), 38 U.S.C.
§ 7422(d), and 5 U.S.C. § 706(2)(C).
COUNT II
5 U.S.C. § 706(2)(A)
7422(d).
19
75. By the conduct set forth in paragraphs 1 through 66, the Official Time Determination is
arbitrary and capricious in violation of 38 U.S.C. § 7422(b), 38 U.S.C. § 7422(d), and 5
U.S.C. § 706(2)(A).
COUNT III
5 U.S.C. § 706(2)(A)
7422(d).
an abuse of discretion in violation of 38 U.S.C. § 7422(b), 38 U.S.C. § 7422(d), and 5
U.S.C. § 706(2)(A).
20
COUNT IV
5 U.S.C. § 706(2)(A)
7422(d).
not in accordance with law in violation of 38 U.S.C. § 7422(b), 38 U.S.C. § 7422(d), and
5 U.S.C. § 706(2)(A).
RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief:
1. Hold unlawful and set aside the Official Time Determination because its holding that the
use of official time by Title 38 employees as provided in the VA/AFGE Master
Agreement, the VA/NFFE Master Agreement and the VA/NAGE Master Agreement
concerned professional conduct or competence exceeded the VA Secretary’s statutory
authority;
21
Agreement, VA/NFFE Master Agreement and the VA/NAGE Master Agreement
concerned professional conduct or competence is arbitrary and capricious and an abuse of
discretion;
Agreement, VA/NFFE Master Agreement and the VA/NAGE Master Agreement
concerned professional conduct or competence is not in accordance with law;
4. Order the Defendants to comply with the VA/AFGE Master Agreement, the VA/NFFE
Master Agreement and VA/NAGE Master Agreement regarding official time for Title 38
employees;
5. Order the Defendants to return to the status quo ante: and
6. Grant any other relief which the Court deems proper.
Respectfully submitted,
/s/ Judith Galat

JUDITH GALAT *
Assistant General Counsel, AFGE
[email protected]
D.C. Bar #399962
*Lead Counsel
22
/s/ Andres Grajales

ANDRES GRAJALES
Deputy General Counsel
[email protected]
American Federation of Government
Employees, AFL-CIO
80 F Street, N.W.
Washington, D.C. 20001
(202) 639-6424
D.C. Bar #476894
Attorneys for Plaintiff AFGE
/s/ Jefferson D. Friday

Jefferson D. Friday
General Counsel
D.C. Bar No. 358253
/s/ Renee L. Mantone

Renee L. Mantone
Assistant General Counsel
D.C. Bar No. 1045053
/s/ Suzanne Summerlin

Suzanne Summerlin*
D.C. Bar No. 1044859
* Lead Counsel
National Federation of Federal Employees,

FD-1, IAMAW, AFL-CIO
1225 New York Avenue, N.W., Suite 450
Washington, D.C. 20005
Phone: (202) 216-4420
Fax: (202) 898-1861
Email: [email protected]
Attorneys for Plaintiff NFFE
23
/s/ Sarah E. Suszczyk

Sarah E. Suszczyk (pro hac vice application pending)
Deputy General Counsel
*Lead Counsel
/s/ Robert J. Shore

Robert J. Shore
D.C. Bar No. 999552
National Association of Government Employees, Inc.
1020 North Fairfax
Suite 200
Alexandria, VA 22314
Telephone: 703-519-0300
Facsimile: 703-519-0311
Attorneys for Plaintiff NAGE
24

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Case 1:18-cv-02629 Document 1 Filed 11/14/18 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT

AMERICAN FEDERATION OF GOVERNMENT )

COMPLAINT FOR INJUNCTIVE

Government Employees, AFL-CIO (“AFGE”), the National Federation of Federal Employees,

case “Notice of Repudiation” (hereinafter referred to collectively as the “Official Time

complaint as Exhibits 1- 3 respectively.

establishment, determination, or adjustment of employee compensation. 38 U.S.C. Section

rational statutory exception that is intentionally designed to swallow the rule.”)

U.S.C. Section 7422.

347-350 (D.C. Cir. 2007).

2. Venue lies in this court under 28 U.S.C. § 1391(e)(1) and (2).

3. Plaintiff AFGE is a national labor organization and unincorporated association

represents approximately 650,000 federal civilian employees in agencies and

departments across the federal government, including approximately 350,000

federal civilian employees in the VA.

under 5 U.S.C. § 7111, of employees at the VA.

5. AFGE is an exclusive representative of a consolidated unit in the VA which includes

6. Plaintiff NFFE is an unincorporated association with its principal place of business at

7. NFFE is certified as the exclusive bargaining representative of approximately 110,000

federal employees, including Title 38 employees of the VA. As the exclusive

education of federal employees by representing their interests through collective

and promoting labor-management partnerships in agency decision-making.

place of business at 159 Thomas Burgin Parkway Quincy, MA 02169.

approximately 110,000 employees, including nearly 75,000 federal employees. NAGE

employees at the VA.

11. NAGE is an exclusive representative of a consolidated unit in the VA which includes

is sued solely in his official capacity.

located at 810 Vermont Avenue N.W. Washington, D.C 20420.

The Federal Service Labor-Management Relations Statute (Chapter 71)

collective bargaining are in the public interest. 5 U.S.C. § 7101(a).

be authorized official time to negotiate a collective bargaining agreement.

phase of proceedings before the Authority.

19. 5 U.S.C. § 7131(d) provides that “any employee representing an exclusive

employee in an appropriate unit represented by an exclusive representative, shall be

agree to be reasonable, necessary, and in the public interest.”

38 U.S.C. Sections 7421 and 7422

listed in 38 U.S.C. Section 7421(b).”

Podiatrists, Optometrists, Registered Nurses, Physician Assistants, Expanded-Duty

Dental Auxiliaries, and Chiropractors.

is subject to the right of Federal employees to engage in collective bargaining with

respect to conditions of employment through representatives chosen by them in

accordance with chapter 71 of title 5 (relating to labor-management relations).”

matter or question concerning or arising out of (1) professional conduct or competence,

(2) peer review, or (3) the establishment, determination, or adjustment of employee

compensation under this title.”

arises out of (1) professional conduct or competence, . . . shall be decided by the

any other agency.”

The VA/AFGE Master Agreement

2011 (hereinafter “VA/AFGE Master Agreement”).

time under 5 U.S.C. § 7131.

29. The VA/AFGE Master Agreement remains in effect.

amounts specified by this Agreement or otherwise negotiated.”

The VA/NFFE Master Agreement

(hereinafter “VA/NFFE Master Agreement”).

time under 5 U.S.C. § 7131.

Parties, and subjected to Agency head review pursuant to 5 U.S.C. § 7114(c).

37. The VA/NFFE Master Agreement remains in effect.

reached on or about January 31, 2018.

at the national and district levels.