NEW CITATIONS AND THE PRICE OF DELAY

NEW CITATIONS

Two of arbitrator E Frank Cornelius’ recent opinions have been published:

(I)   AFGE Local 1629 and VA Battle Creek Medical Center, 2026 WL 2428385, 126 LRP 24614 (Cornelius Arb 2026). The arbitrator's slip opinion can be accessed by clicking here.

(II)  AFGE Local 85 and VA Financial Services Center, 2026 WL 2428386, 126 LRP 25695 (Cornelius Arb 2026). The arbitrator's slip opinion can be accessed by clicking here.

The first of these (I) is the subject of the arbitrator’s blog post of August 6, 2026, “Arbitrator E Frank Cornelius Upholds Arbitral Authority in AFGE Local 1629 Case with VA Medical Center”. The second, a puzzling case, is discussed below.

Introduction to VA Financial Services

This arbitration is a good example of the price of delaying an otherwise simple case.

The grievance concerns unpaid union dues. The amount ultimately claimed is only $300.12. Yet the case remained pending for almost two and one-half years, involved a national arbitration award, the putative termination and subsequent reinstatement of the VA collective bargaining agreement, Executive Order 14251, federal litigation, several changes in position by the parties, numerous emails, and substantial arbitration expense.

The case began on Saint Valentine’s Day, February 14, 2024, when the arbitrator received his appointment from FMCS for case No. 24-02414. The Union shortly thereafter requested that the case be held in abeyance, because a substantially identical national grievance was pending.

The national grievance was subsequently decided by Arbitrator Howard J. Stiefel on July 15, 2024. He found that the VA had violated Article 45 of the Master Collective Bargaining Agreement by unilaterally changing the procedures for processing union-dues deductions. Among other things, he ordered the VA to comply with the contractual timing requirements and to make whole employees who had been required to perform certain dues-related procedures during non-duty time. He also directed the parties to establish a claims procedure.

Unfortunately, the parties did not establish such a claims procedure. Instead, the matter drifted from the national level to the local level, where it remained unresolved. Thus began a remarkably long journey over $300.12.

The Long Road to Arbitration

For much of 2024 and 2025, the arbitrator repeatedly asked the parties for status reports and suggested that they select a hearing date. The Union repeatedly advised that the Agency had not complied with the national award and asked that the case remain in abeyance. The arbitrator accommodated those requests.

Eventually a September 30 date was reserved for the present case. But before the arbitration could proceed, another and much more consequential event occurred.

Executive Order 14251

On March 27, 2025, President Trump issued Executive Order 14251, excluding the VA from the Federal Service Labor-Management Relations Statute, with certain exceptions for police officers, firefighters, and security guards.

On August 6, 2025, the Secretary of Veterans Affairs terminated the AFGE Master Collective Bargaining Agreement, together with its local agreements and related memoranda, except as they applied to the exempted employees. The VA therefore advised the arbitrator that the present grievance involved only non-exempt employees and that AFGE was no longer recognized as their exclusive representative. The Agency stated that the arbitration should cease immediately and that it would not pay for arbitration services performed after August 6, 2025. It also stated that it would not participate in further proceedings or abide by an arbitration award issued after that date. The Union disagreed.

The arbitrator did not regard the matter as so simple. The parties had jointly selected him to arbitrate the case, and the contractual relationship with the arbitrator was a joint agreement. The Agency could not simply declare the arbitration terminated. Nevertheless, because the legal situation surrounding EO 14251 was developing rapidly, the arbitrator postponed the scheduled hearings and retained jurisdiction. He also tolled applicable limitations periods.

The Rhode Island Litigation

The situation changed again in March 2026. The United States District Court for the District of Rhode Island issued an injunction requiring the VA to reinstate the 2023 AFGE Master Collective Bargaining Agreement, together with its subsidiary agreements and memoranda, for the remainder of the agreed-upon term.

The Union promptly advised that it wished to proceed with the arbitration. The Agency, however, maintained that the Rhode Island decision did not invalidate EO 14251 and did not make the FSLMRS generally applicable to the VA. The Agency therefore requested that the arbitration remain in abeyance until the federal litigation was resolved.

The arbitrator was not persuaded that further delay was necessary. He noted that the District Court had expressly ordered the VA to reinstate the Master Agreement. He also questioned the Agency's continued resistance to proceeding with the arbitration.

The Union subsequently obtained advice from AFGE's General Counsel and informed the arbitrator that it was prepared to proceed. The arbitrator therefore moved the case forward.

The National Award Was Particularly Important

There was, however, a fundamental question: Was there really anything left to arbitrate? The national grievance had already been decided. Arbitrator Stiefel had already held that the VA violated the Master Agreement concerning dues deductions and had ordered the VA to make affected employees whole. The present case was essentially the local application of that national award.

The arbitrator therefore concluded that the present matter appeared to be principally a claim for backpay under the Back Pay Act, 5 U.S.C. § 5596. He advised the Union that it should identify the employees claiming backpay, the number of hours or pay periods involved, their rates of pay, and the total amounts claimed.

The Union eventually identified five employees:

• SC — 3 paydays

• ME — 2 paydays

• BK — 3 paydays

• LH — 2 paydays

• JF — 2 paydays

The total was 12 paydays at $25.01 per payday, or $300.12.

At this point the arbitrator discovered the rather extraordinary fact that the entire dispute involved only $300.12. One can hardly blame him for asking: “Are we really having an arbitration over $300? How much is this going to cost?”

Award

The national award had already determined the underlying contractual violation. The Union had identified the employees affected and established the amount claimed. The Agency had been given an opportunity to respond but did not do so.

The arbitrator observed, in retrospect, that the Union probably should have proceeded under the Back Pay Act rather than allowing the matter to continue through a separate local arbitration. Nothing in Arbitrator Stiefel's award prohibited such a procedure, and the AFGE National VA Council's legal staff had indicated that locals could proceed with their claims along with the national grievance. But that observation came too late to undo the history of the case.

The five employees identified by the Union are awarded $25.01 for each payday. 

Original arbitration opinion on Scribd.

The reader interested in the arbitrator’s handling of jurisdictional issues arising under EO 14251 might consult the “Arbitrator’s Decision on Jurisdiction and Authority” in VA Battle Creek case (I) here.