Mr. Chairman and Members of the Subcommittee:

The American Federation of Government Employees (AFGE) appreciates the opportunity to submit a statement for the record on H.R. 4089 and other bills under consideration today. AFGE represents nearly 160,000 employees in the Department of Veterans Affairs (VA), more than two-thirds of whom are Veterans Health Administration (VHA) professionals on the front lines treating the physical and mental health needs of our veteran population.

H.R. 4089 

H.R. 4089 would clarify that “pure Title 38” providers (hereinafter “providers”), i.e., registered nurses (RN), physicians, physician assistants, dentists, chiropractors, optometrists, podiatrists and expanded-duty dental auxiliaries, have the same rights as other health care professionals working at the VA, military hospitals and other federal government facilities, specifically:

• Collective bargaining rights: Section 1 would clarify that these providers have equal rights to challenge management personnel actions through grievances, arbitrations, labor-management negotiations, unfair labor practices (ULPs) and litigation before the Federal Labor Relations Authority (FLRA) and courts.
• Judicial review: Section 2 would clarify that these providers have the right to appeal to federal court the final decision of a labor arbitrator or the Department with respect to review of an adverse action.
• Disciplinary Appeals Board (DAB): Section 3 would clarify the right of these providers to a full and correct copy of the hearing transcript in advance of the deadline for submitting post-hearing briefs, in administrative appeals of major adverse actions involving professional conduct or competence under 38 USC § 7462.

H.R. 4089 is an essential enforcement tool for past and future VHA recruitment and retention legislation. Section 1 would close a harmful loophole in 38 USC § 7422 (“7422”) that the VA has repeatedly used to undermine Congressional intent. More specifically, VA management at the national and local levels regularly invoke the three exclusions to bargaining in Section 7422 to block virtually every provider grievance over conditions of employment: professional conduct and competence (defined as direct patient care or clinical competence); peer review; and compensation.

The VA’s Assertion That HR 4089 Will Interfere With Management’s Title 5 Rights to Carry Out its Mission is Unfounded

The VA contends that amending Section 7422 would interfere with the agency’s mission to serve the needs of our nation’s veterans, by requiring the Secretary to bargain over direct patient care, clinical competency and discretionary aspects of Title 38 compensation.

Yet, the VA does not, and cannot, point to a single attempt by employees or their representatives to interfere with medical procedures, the assessment of clinical skills or pay scales set by the agency.

Even if there was such an attempt, Title 5 already protects against such interference in VA health care settings. More specifically, Section 7106(a) of Title 5 clearly makes an agency's determination of its mission and organization a "management right" not to be affected by the grievance or arbitration process. In contrast, in Section 7103(a)(14) of Title 5 describes matters that can be modified at the bargaining table (or grieved) as "conditions of employment". In other words, Title 5 management rights render the exclusion language in Section 7422 redundant and unnecessary.

A review of decisions by the Federal Labor Relations Authority makes clear that if Section 7422 were amended to repeal the current exclusions to bargaining, labor would still be prohibited from negotiating with the agency on how it fulfills its mission, i.e., caring for veterans.[1]. If the union cannot require negotiations on even “when” services are to be provided to the public for “mission” reasons, it follows that a union lacks the right, under Title 5 provisions, to force discussion on the substance of what care is provided to its public.

VA’s 7422 Policy Undermines Congressional Efforts to Improve Recruitment Retention

VA’s 7422 policy has severely weakened legislation that Congress passed in recent years to recruit and retain a strong health care workforce:

• VA’s 7422 policy weakens recruitment and retention legislation on nurse locality pay: Congress enacted legislation in 2000 to authorize directors to conduct third party surveys to set competitive nurse pay (P.L.106-419). The Undersecretary of Health (USH) has ruled that the “compensation” exception blocks employees’ access to third party survey data. (Decision dated 1/06/05.)

• VA’s 7422 policy weakens recruitment and retention legislation limiting mandatory nurse overtime: Congress enacted legislation in 2004 to require facilities to establish policies limiting mandatory overtime except in cases of “emergency” (P.L. 108-445). The USH ruled that an AFGE national grievance over the definition of “emergency” is barred by the “professional conduct or competence” exception. ( Decision dated 10/22/07.)

• VA’s 7422 policy weakens recruitment and retention legislation on physician market and performance pay: Congress enacted legislation in 2004 to use local panels of physicians to set market pay that would be competitive with local markets (P.L.108-445). The USH ruled that AFGE’s national grievance over the composition of the pay panels was barred by the “compensation” exception. (Decision dated 3/2/07). (Local management in many facilities also asserted 7422 to block challenges to pay panel grievances.) Similarly, with regard to performance pay provisions in the 2004 law, VA physicians across the nation are unable to challenge management policies that set arbitrarily low bonuses and impose unfair performance measures based on factors beyond the physicians’ control. Local management also regularly asserts 7422 to deny physicians’ requests to have input into development of performance criteria.

• VA’s 7422 policy weakens recruitment and retention legislation on nurse alternative work schedules: Congress enacted legislation in 2004 to authorize facility directors to offer full-time pay for three 12 hour work days, to become competitive with the private sector. The USH has ruled that disputes over compressed work schedules and alternative work schedules are barred by the “patient care” exception. (For example, see decisions dated 10/1105, 8/22/05 and 3/15/05.)

VA’s 7422 Policy Undermines Other Statutory Rights

Since the VA does not inform AFGE of pending cases or unpublished decisions, we are only aware of a portion of all 7422 decisions made at the USH level or below. The following are examples of other cases where the VA also invoked 7422 in ways that undermined important rights established by Congress:

• No right to challenge performance rating based on use of approved leave: Management invoked 7422 when a nurse tried to grieve the lowering of her performance rating that was based on her authorized absences using earned sick leave and annual leave. Management’s actions were carried out without any written justification.

• No right to challenge error in pay computation: Management invoked 7422 when a nurse was incorrectly denied a statutory within-grade pay increase because she lost work time due to a work-related injury covered by workers compensation.

• No right to pursue grievance alleging employment discrimination:

• In a case involving a VA physician who lost his surgical privileges and specialty pay, a federal appeal court upheld the barring of his grievance alleging unlawful age and gender discrimination on the basis of the “professional conduct or competence” exception in 7422. The union had contended that management’s 7422 assertion was a mere pretext for unlawful discrimination. AFGE Local 2152 v. Principi, 464 F.3d 1049 (9th Cir. 2006).
• A nurse who alleged that management’s denial of specialized skills pay to her was racially motivated was not allowed to pursue a grievance. (USH decision dated 6/1/07).

VA’s 7422 Policy Contradicts Congressional Intent to Provide Full Collective Bargaining Rights to Title 38 Providers

When Congress enacted the Civil Service Reform Act (CSRA) in 1978, it viewed Title 38 and Title 5 employees as having the same collective bargaining rights.

A decade later, in a decision involving annual nurse “comparability pay” increases, the U.S. Court of Appeals for the D.C. Circuit held that the VA could not be compelled by the CSRA to engage in collective bargaining over conditions of employment for Title 38 providers. Colorado Nurses Ass’n v. FLRA, 851 F.2d 1486(D.C. Cir. 1988).

Congress enacted Section 7422 three years later in direct response to the court’s ruling. The 1990 House committee report on the underlying bill defined the “direct patient care” exception as “medical procedures physicians follow in treating patients.” This report also cited guidelines for RNs wishing to trade vacation days as falling outside the exception. (H. Rep.No.101-466 on H.R. 4557,101st Cong., 2d Sess., 29 (1990)).

The plain language of Section 7422 confirms Congress’ intent to give these providers broad rights to challenge management personnel actions (as opposed to medical procedures) through the negotiated grievance process, by specifying that nongrievable matters relate to “direct patient care” or clinical competence.”

VA’s 7422 Policy is Unsound and Inconsistent

VA Title 38 policy is inconsistent with the rights of other VA and DOD providers

The VA is using Section 7422 to block routine grievances over conditions of employment by Title 38 providers that are regularly filed by other federal employees, including employees at VA medical facilities. These inconsistencies are harmful to recruitment and retention, and administration of hospital affairs. For example:

• A VA psychologist has more grievance rights than a VA psychiatrist.
• A VA Licensed Practical Nurse has more grievance rights than a VA Registered Nurse.
• A physician treating active duty personnel at Walter Reed has more grievance rights than a physician treating veterans at the VA.

Federal employees working in health care settings use their collective bargaining rights every day without disrupting patient care. As already discussed, Title 5 safeguards against the improper use of grievance rights by Title 38 and Title 5 employees.

Section 7422 is invoked in an inconsistent manner

At the national level, VA’s application of the law is inconsistent and unsupported. For example:

• The VA is currently negotiating with AFGE over reimbursement of physician continuing medical education expenses but refused to negotiate over the composition of pay panels to set physician market pay.
• The VA negotiated a Memorandum of Understanding with AFGE over the role of the Clinical Nurse leader. Yet the VA refused to negotiate over the right of a union local to have input into the drafting of medical staff bylaws that impact personnel policies.

Inconsistency is rampant at the local level. Human resources personnel regularly make unauthorized 7422 decisions instead of seeking a proper USH ruling, and without adequate legal oversight. It is also common practice for local management to threaten to invoke 7422 in order to discourage employees from using their grievance rights, rather than seek an USH ruling.

Current VA policy contradicts its own past policy on 7422

In 1996, the VA and labor unions entered into a detailed agreement regarding the scope of 7422’s exceptions. Sadly, the VA unilaterally abandoned this useful, inclusive agreement seven years later as well as its commitment to resolve labor-management disputes in a less adversarial manner. For example, in that agreement:

·       The VA recognized the narrow scope of the direct patient care exception, i.e., it does not extend to “many matters affecting the working conditions of Title 38 employees [that] affect patient care only indirectly” (emphasis provided).

• The VA agreed that pay matters other than setting pay scales are grievable: “Under Title 38, pay scales are set by the agency, outside of collective bargaining and arbitration. Left within the scope of bargaining and arbitrations over such matters as: procedures for collecting and analyzing data used in determining scales, alleged failures to pay in accordance with the applicable scale, rules for earning overtime and for earning and using compensatory time, and alternative work schedules.”

• The VA agreed that scheduling matters may be grievable: “For example, scheduling shifts substantially in advance so that employees can plan family and civic activities may make it more expensive to meet patient care standards under certain circumstances. That does not relieve management of either the responsibility to assure proper patient care or to bargain over employee working conditions.”
• The VA acknowledged that providers provide valuable input into medical affairs: “We recognize that the employees have a deep stake in the quality and efficiency of the work performed by the agency.”; “The purpose of labor-management partnership is to get the front line employees directly involved in identifying problems and crafting solutions to better serve the agency’s customers and mission.”

The VA’s 7422 Review Process is Biased in Favor of Management

The VA recently testified that the current restriction on collective bargaining rights is a “sound compromise” between the VA’s mission and the interest of Title 38 providers”. Compromise? Management wins almost all the time: of all USH posted decisions since December 2001, 94% were in favor of management.

It is interesting to note that shortly after this Subcommittee’s May 22nd hearing, VA issued its first USH ruling in favor of the employee since December 2004.

Current 7422 Policy Limits the VA’s Accountability to Congress, Taxpayers and Veterans

When the VA perpetually invokes 7422 in matters such as nurse scheduling and assignment, it does not have to answer for chronic short staffing, which in turn leads to costly contract care, longer patient waiting lists and diversion to non-VA hospitals.

For example, in one nurse alternative work schedule (AWS) case that went before the USH, the hospital ward staff was continuously “scheduled” to be shorted of coverage a minimum of 4 hours at least 3 days a week.  In a reassignment case, the employee experienced retaliation for requesting orientation.

Similarly, VA uses 7422 to avoid being held accountable for noncompliance with physician pay laws, which makes it more difficult to hire physicians in scarce supply. For example, an orthopedic surgeon was entitled by VA regulations to a $15,000 dollar increase in his market pay. He was notified of this raise six months ago but he has still not received his pay increase.   

The VA’s use of 7422 to block grievances relating to mandatory nurse overtime prevents ward nurses from challenging work schedules that are unsafe for patients.

H.R. 4463

AFGE has no specific position on this legislation.

H.R. 5888

AFGE supports H.R. 5888. This bill will enable veterans with partial coverage from a private insurer, including veterans with very limited private coverage, to receive reimbursement from the VA for emergency care provided at a non-VA facility. This bill will also assist veterans recently denied reimbursement due to current restrictions in the law.

H.R, 6114

AFGE has no specific position on this legislation.

 H.R. 6122

AFGE supports H.R. 6122. Chronic pain is a leading cause of disability among veterans. Pain management is an essential component of quality health care. This bill will ensure that VA facilities across the country have the resources to improve and expand their pain care services.

Thank you.

[1] See Department of the Air Force, Lowry AFB, Colo., 16 FLRA 1104, 1004-05 (1984) (hours that a base commissary will be open not subject to an agency’s duty to bargain for mission reasons); AFGE Local 3231 and SSA, 22 FLRA 868, 869-70 (1986) (bargaining proposal seeking to establish hours that SSA district office is open to the public is outside the agency’s statutory duty to bargain under the “mission” management right); West Point Elementary School Teachers Ass’n, NEA and U.S. Military Academy Elementary School, West Point, N.Y , 29 FLRA 1531, 1536-38 (1987) (bargaining proposal on what dates shall constitute the school calendar outside the agency’s duty to bargain under the “mission” management right because it determined the days on which children will attend school); Fort Bragg Ass’n of Educators, NEA and Dep’t of the Army, Fort Bragg Schools, 30 FLRA 508, 516-17 (1987) (bargaining proposal on what times on each day a school shall be open found to be outside the agency’s duty to bargain under the “mission” management right because it determined the times of the day at which children will attend school); National Labor Relations Board Union Local 21 and NLRB, Washington, D.C., 36 FLRA 853, 857-58 (1990) (bargaining proposal seeking to establish hours that an NLRB office is open to the public is outside the agency’s statutory duty to bargain under the “mission” management right). See also U.S. Immigration and Naturalization Service and AFGE Local 1917, 20 FLRA 391 (1985) (“INS”) (holding Section 7106(a) may serve to bar a remedy ordered by an arbitrator that impermissibly infringes on the agency’s right to determine mission.)