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. 949 and draft bills relating to performance pay and collective bargaining (draft dated March 8, 2010 (2:49 p.m.) and continuing professional education (draft dated December 9, 2009 (11:42 a.m.).)

AFGE represents nearly 200,000 employees in the Department of Veterans Affairs (VA), more than two-thirds of whom are proud employees of a world class health care system that provides unsurpassed specialized care to the men and women who have served our nation.

The VHA workforce includes in its ranks many physicians, registered nurses (RN), physician assistants (PA) and other clinicians who bring to this great health care system invaluable experience and compassion from their own military service where they provided medical care on the battlefield.  

Sadly, back home, these fine clinicians face work environments plagued by fear, disrespect and exclusion. Their deep desire to care for veterans is challenged every day by personnel policies that demoralize them and deprive them of the basic rights and dignity provided to their colleagues working outside the VA.  VA’s ability to recruit and retain professionals who want to build a career in the VA is getting more difficult every day.

H.R. 949 and Draft Collective Bargaining Language

H.R. 949

Two years ago, this Subcommittee considered this legislation to restore equal collective bargaining rights to these dedicated VA clinicians.  At that time, the VA’s arguments in opposition to the legislation were riddled with fear and distortion, claiming it would “jeopardize[e] the lives of our veterans” (Senate Committee on Veterans Affairs, May 21, 2008 hearing). 

A great deal has changed in the past two years and the Department appears ready to embrace a 21st century transformation of VHA labor-management relations. We urge this Subcommittee to capture that momentum through passage of H.R. 949.

The most recent example of the Department’s shift away from its former, counterproductive interpretation of Title 38 collective bargaining law (38 U.S.C. § 7422, or “7422”) is evident in the implementation plan provided to the White House pursuant to Executive Order (EO) 13522. Its plan to fulfill this White House goal, i.e. “Creating Labor-Management Forums to Improve Delivery of Government Services’, recognizes that “[c]ooperative, constructive working relations between labor and management are essential to achieving common labor-management goals and objectives.” (Link: http://www.lmrcouncil.gov/plans/index.aspx)

The Implementation Plan also specifically addresses bargaining and negotiation rights::

“[T]he Department is committed to pre-decisional involvement in workplace matters, without regard to whether those matters are negotiable subjects of bargaining under 5 U.S.C. § 7106.... The Department is committed, wherever appropriate, to engage the labor partners on issues that historically have been outside the scope of bargaining.” (emphasis added).

Equally significant, last fall, the Department supported legislation to provide full bargaining rights for two years to VA physicians and RNs converting from the Defense Department (DoD) personnel system at the joint DoD-VA medical facility in North Chicago (P.L. 111-84).  Despite all its past allegations that full bargaining rights will endanger patients, the Department agreed to give full Title 5 rights to new VA clinicians treating veterans and active duty personnel at a unique joint facility that is designed to serve as a national model for the future. These clinicians, will full rights to grieve and negotiate over routine employment matters such as schedules, assignments, and additional pay for good performance or weekend shift work, will be working side by side with VA clinicians with the same titles and duties who have very limited rights because of “7422”.

Therefore, AFGE urges this Subcommittee to vote for H.R. 949.  It is time to align the law with VHA’s new workforce goals. It is time to put an end to VHA personnel policies that have decimated valuable legislation that Congress passed to improve recruitment and retention. It is time to end the inequality and arbitrariness that keep new physicians and RNs from seeking VA careers. It is time to end the demoralization of long term, valuable VA physicians, dentists, RNs,  PAs, chiropractors, optometrists, and podiatrists who must work without a voice and without redress for unfair and illegal management actions. It is time to end the senseless inequality between VA clinicians without full rights and VA “hybrid” clinicians, such as pharmacists, psychologists and practical nurses with full rights. It is time to end the equally senseless inequality between physicians and nurses who treat veterans and physicians and nurses who treat active duty personnel and federal prisoners at other federal facilities.

Draft Collective Bargaining Language

In the alternative, AFGE asks the Subcommittee to support Section 2 of the March 8, 2010 draft.  This draft language is significantly narrower than H.R. 949 which also addresses bargaining rights in peer review matters, the rights of Title 38 clinicians to appeal final agency decisions and arbitration decisions to federal court, and needed changes in the Disciplinary Appeals Boards process.  However, the March 8th draft focuses on the two most harmful VA “7422” exclusions to bargaining: compensation and patient care. Enactment of this draft language will yield significant benefits for workplace morale and VHA recruitment and retention.

More specifically, Subsection 2(a)(1) inserts a single word – “rates” – in 38 USC § 7422 to clarify what Congress intended in 1991 when it enacted Title 38 bargaining rights.  This proposed change addresses opponents’ assertions that employees will try to set pay rates, in violation of federal law.  Compensation issues other than pay rates cover pay issues that Congress has specifically addressed in legislation to help the VA recruit and retain such as nurse locality pay and physician performance pay. Compensation issues other than pay rates also cover wage law violations that public and private employees throughout this country have a right to challenge, such as failure to pay overtime or shift differential pay for weekend work.

AFGE notes that the VA has never offered an example of an employee’s attempt to use bargaining rights to set federal pay rates, and that there are no Undersecretary of Health 7422 cases involving such an attempt.

Subsection 2(a)(2) also clarifies Congressional intent in established routine bargaining rights for Title 38 clinicians for matters only indirectly related to patient care – rights that are no greater than the routine bargaining rights of federal employees covered by Title 5, including Hybrid Title 38 VHA health care professionals and DoD and BOP clinicians with the exact same job titles and scopes of practice.  This subsection will not allow employees to interfere with management rights to determine the best medical procedures or skill sets for patient care, or its right to take needed actions during medical emergencies.  Rather, Subsection (2)(b) only makes clear that these federal employees have the same, routine rights to a voice in scheduling and assignment policies that other federal employees have when they care for patients in hospitals and clinics.

 Again, AFGE notes that the VA has never offered an example of labor’s attempt to use bargaining rights in scheduling and assignment matters to interfere with management’s choice of medical procedures, determination of needed medical skills or other direct patient care matters. VA has never offered an example of labor’s attempt to prevent management from responding timely to emergency medical needs. We further note that there is no Undersecretary of Health 7422 case involving any such attempts.

Draft Language on Physician and Dentist Performance Pay Criteria

AFGE supports the enactment of the December 9, 2009 draft language to provide a long overdue fix to problematic performance pay polices at local facilities. Such policies have virtually stripped this valuable recruitment and retention tool any benefit.

The problem is two-fold. First, local management does not issue performance criteria in accordance with deadlines set by Congress, and in many cases, never issues them.  Second, when management does set criteria, they very widely from facility to facility, and/or they measure improper factors beyond the individual clinician’s control, such as missed appointments, clinical utilization and patients’ satisfaction with their overall hospital experiences.  

This draft language will improve the uniformity and effectiveness of these measures, which in turn, will improve recruitment and retention. First, Section 1(a) clarifies that these criteria should measure individual, not group, performance – a clarification that is already in VA regulations (but regularly ignored.)  Second, Section 1(b) ensures that the Secretary fulfills a requirement that Congress put on the books six years ago that has been ignored to date, specifically, to prescribe specific goals at performance objectives at the national level  (“Performance pay shall be paid to a physician or dentist on the basis of the physician's or dentist's achievement of specific goals and performance objectives prescribed by the Secretary.” (emphasis added) (P.L. 108-445)

Draft Language on Continuing Professional Education Reimbursement

AFGE urges the Subcommittee to approve this draft language to increase the annual reimbursement for continuing professional medical education (“CME”).  The CME amount provided under current law has not increased since 1991 and other health care employers currently offer much higher reimbursement to their clinicians. We also support draft language extending CME reimbursement to other Title 38 clinicians who need to meet licensing and certification requirements and update their skills.

AFGE urges the Subcommittee to add additional language to clarify the following:  at facilities where some, but not sufficient internal CME courses are offered to maintain licensure, the law should clearly state that reimbursement for outside CME is still available. 

Thank you for the opportunity to share AFGE’s views on these critical recruitment and retention legislative proposals.