On behalf of the National Federation of Federal Employees (NFFE) and the 110,000 federal employees our union represents throughout the United States and abroad, including more than 5,000 Department of Veterans Affairs (VA) health care providers, I thank you for the opportunity to submit this statement regarding H.R. 949.

Summary of NFFE’s Position on H.R. 949

Over the last several years, Department of Veterans Affairs (VA) healthcare professionals have seen their collective bargaining rights diminish appreciably.  Agency management’s improperly broad interpretation of a certain provision in federal labor law has allowed them to circumvent the bargaining process on numerous critical issues, and the effect is taking its toll on the morale of VA health care providers.  It is time for Congress to do what is right for VA workers and the veterans for whom they provide care by passing H.R. 949, which will eliminate the collective bargaining exceptions under Sec. 7422 of Title 38.

Background on Collective Bargaining for VA Title 38 Health Care Workers

In 1991, Title 38 was amended by Congress to give health care providers at the VA collective bargaining rights.  This was a necessary change that was supported by our union.  This change allowed Title 38 health care providers access basic collective bargaining rights, including a negotiated grievance procedure and the ability to take an unsettled grievance to arbitration.  However, under Sec. 7422 of Title 38, VA health care providers are permitted to negotiate contracts, arbitrate disputes, and file grievances over working conditions except for matters concerning or arising out of professional conduct or competence, peer review, and compensation.  We refer to these as “7422 exceptions.”

In the years immediately following the change in law, these 7422 exceptions were interpreted narrowly, which in our view was an appropriate interpretation of the law.  However, over the past decade, the VA has greatly expanded their interpretation of Sec. 7422 of Title 38 so that practically any matter the VA wished to avoid bargaining with the union over could be circumvented.  When you take away the right to collectively bargain over conduct, competence, peer review, and compensation, you make the negotiated grievance procedure all but meaningless. The VA’s broad interpretation of Sec. 7422 has been a great disservice to VA health care providers that we represent.  It has also been a disservice to the American veterans for whom our members provide care. 

Why H.R. 949 Should Be Passed Into Law This Congress

For the following reasons, NFFE believes that it is critical for Congress to pass H.R. 949 in this session of Congress:      

• Veterans’ care suffers from the toxic labor-management climate caused by Sec. 7422
• The 7422 exceptions are completely unnecessary and inconsistent with the health care industry
• Health care providers use collective bargaining to maintain fairness in the workplace and improve patient care; bargaining does not hurt patient care
• There are veterans groups that support this legislation; veterans groups do not tend to support legislation that will hurt veterans’ care
• Only legislation can solve the 7422 problem permanently
• With thousands of veterans returning from conflicts abroad, the time to address this cancer at the VA is now

Veterans’ Care Suffers from the Toxic Labor-Management Climate Caused by Sec. 7422 of Title 38

I would classify the labor-management atmosphere throughout most of the VA as toxic.  Our members from across the country, who provide care to the American veteran, report that the VA’s willingness to use the 7422 exceptions to circumvent their bargaining obligations and avoid legitimate employee grievances is an enormous problem that is taking a very large toll on the morale of VA health care providers. 

A year ago, we were optimistic that a new Administration might usher in a new approach to labor-management relations at the Department.  It is with great disappointment that I report that the labor-management relations climate at the VA is unchanged from a year ago.  In fact, from many accounts we get from the field, labor-management relations at the VA are currently at an all-time low.

We believe that the failure of the VA to establish effective labor-management relationships stem from Sec. 7422 of Title 38.  VA management have grown quite accustomed to standing behind the 7422 exceptions to avoid bargaining over workplace issues or to settle legitimate grievances that involve management’s wrong-doing, including the improper firing of VA employees or the failure to provide employees with due process.  The VA’s broad interpretation of the 7422 exceptions has given management the ability to trump almost any action taken by the union to enforce workplace rules or defend employees against adverse actions.  It is no surprise that VA employees are feeling great frustration over the practice.

Many of the issues that VA employees lose the ability to bargain over because of the 7422 exceptions are very important to the VA rank-and-file workforce.  Some of these issues include: time schedules, shift rotations, evaluations, fair and equal opportunity to be considered for promotion, and fair treatment among colleagues.  VA management frequently handles issues like these in ways that warrant grievances from VA employees, but workers have their efforts to maintain fairness blocked by the VA’s 7422 exceptions.  VA employees experience great frustration when they have no mechanism to demand fairness in the workplace.

This toxic labor-relations climate results in many Title 38 health care providers being terrified to come forward with concerns—some that directly impact patient care—because VA employees know that if they are retaliated against by management, there is little that the union can do to protect them.  For many VA employees, this kind of atmosphere is more than they are willing to tolerate, especially when the health care skills they have are in demand, and in all likelihood, they can get paid more elsewhere. 

Poor recruitment and retention rates at the VA are well documented, and these problems adversely impact patient care.  The elimination of the 7422 exceptions, which would be accomplished by passing H.R. 949, would lead to a substantially improved labor-relations climate at the VA.  Improved labor-relations would lead to a fairer workplace, a happier workforce, and better recruitment and retention of VA health care providers.  Improved recruitment and retention would lead to fewer staffing problems, and ultimately, better care for American veterans.The 7422 Exceptions are Completely Unnecessary and Inconsistent with the Health Care Industry

Eliminating the 7422 exceptions to restore the scope of bargaining for Title 38 employees at the VA would bring VA health care providers in line with the collective bargaining and grievance rights already enjoyed elsewhere in the health care industry.  The VA is unique in its ability to avoid bargaining over issues concerning conduct, competence, compensation, and peer review.  The rest of the roughly 12 million health care workers in the United States have a full scope of bargaining should they choose to be represented by a union; and yes, they can bargain and file grievances over issues concerning conduct, competence, compensation, and peer review. 

Eliminating the 7422 exceptions under Title 38 would level the playing field with regard to collective bargaining for Title 38 and Title 5 employees of the VA.  Some of the Title 5 VA health care providers include psychologists, LPNs, pharmacists, and those holding other positions.  These VA employees enjoy a broader scope of bargaining because they are under Title 5.  It is only Title 38 VA employees who are singled out under the law, and have their scope of bargaining limited by Sec. 7422 of Title 38.

Even federal employees who have the exact same positions as Title 38 VA employees, but work in other federal agencies, have a broader scope of bargaining.  For example, nurses and doctors at the Army Medical Centers such as Walter Reed, who perform the very same function as nurses and doctors at the VA, have broader collective bargaining rights.  Even VA physicians and RNs converting from a Department of Defense personnel system at the joint DoD-VA medical facility in North Chicago will be granted broader bargaining rights.  All these federally employed health care providers have basic bargaining rights that the majority of federal employees enjoy under Title 5.

The bottom line is, VA Title 38 health care providers are in the same basic positions as those working at DoD medical facilities, joint DoD-VA facilities, and private sector hospitals.  Title 38 VA employees are just treated differently because the VA is taking advantage of, and in our opinion abusing, an outdated provision that should be eliminated from the law.

There is no real reason for Title 38 VA workers to be singled out in the health care community and forced to have their critical rights taken away. There are, however, many compelling reasons to eliminate the disparity in treatment that Title 38 VA health care providers are experiencing.  The VA is at a distinct disadvantage to employers in other sectors of the economy, and even elsewhere in the federal government, where employees have a meaningful voice in the workplace on critical conditions of employment.  The VA would be in a better position to recruit and retain a talented workforce if H.R. 949 was passed into law, and the 7422 exceptions under Title 38 were eliminated.

Health Care Providers Use Collective Bargaining to Maintain Fairness in the Workplace and Improve Patient Care; Bargaining Does Not Hurt Patient Care

The VA, over the last several years, has perpetuated the misconception that collective bargaining would imperil the VA’s ability to provide timely and quality care for veterans.  This is 100% false, and it is offensive to the tens of thousands of dedicated VA health care providers who provide this service to veterans.

For example, last year, Gerald M. Cross, Principal Deputy Under Secretary for Health testified before the Senate Veterans’ Affairs Committee on April 22, 2009 at a hearing on pending health-related legislation.  Mr. Cross’s testimony includes grossly inaccurate statements such as “[S.362/H.R. 949] would give [union members] bargaining rights on clinical care matters that would clearly and foreseeably endanger the well-being of our veteran-patients” and “would thwart VA’s ability to immediately re-assign staff from direct patient care duties to administrative duties based on an allegation that the staff committed patient abuse.”

These claims are nothing but fear tactics.  Millions of health care providers in the private sector and elsewhere in government have full collective bargaining rights, and those rights do not lead to endangering the well-being of patients.  They would not lead to the endangering of veteran-patients at the VA either. 

The reality is that collective bargaining improves patient care because VA health care providers have the best interest of their patients at heart.  When employees have protections, they come forward when they see a practice that could be endangering veteran-patients.  On the other hand, if they are intimidated by management and worried that coming forward will lead to retaliation, they will think twice about coming forward.  Veterans deserve to have their care administered by employees who have basic workplace rights. 

Eliminating the 7422 exceptions, which would give Title 38 VA employees a sense of fairness in the workplace, would give VA employees peace of mind in speaking up about patient care problems.  Not giving VA employees basic protections is, in my opinion, what leads to situations like the one experienced in the VA Medical Center in Marion, IL, where nine patients died due to surgical mistakes and poor post-surgical care.  Giving employees the peace of mind to come forward when they see problems like these will help keep these problems from occurring.  Right now, Se. 7422 of Title 38 is preventing it from happening throughout the VA.  Veterans deserve better.

There are Veterans Groups that Support this Legislation; Veterans Groups do not Tend to Support Legislation that Will Hurt Veterans’ Care

The fact that some veterans groups support this legislation demonstrates that the VA’s assertions that collective bargaining will hurt patient care are preposterous.  Plain and simple, veterans groups do not support legislation that is going to hurt veterans’ care. 

The Paralyzed Veterans of America (PVA) have endorsed H.R. 949.  The Disabled American Veterans (DAV) have indicated that they support the intent of the bill.

Only Legislation Can Solve the 7422 Problem Permanently

The VA and five VA employee unions, including NFFE, have assembled a 7422 Work Group to make a recommendation to the Secretary of the VA aimed at improving the consistent use of the authorities and limitations on Sec. 7422 of Tile 38.  While we hope to make some improvements, we do not expect to reach a permanent solution from this 7422 Work Group.  Regardless of what changes the VA agrees to, the Work Group recommendation would not be binding on future Administrations without a change in law.  The 7422 problem is a significant one that is hurting veterans’ care.  We should address this issue permanently by passing H.R. 949.  A non-statutory fix will have very little impact on the ability to maintain a fair workplace for Title 38 VA employees over the long-term.

With Thousands of Veterans Returning from Conflicts Abroad, the Time to Address this Cancer at the VA is Now

The VA is anticipating a large increase in the number of veteran-patients to whom it provides service as American veterans return from conflicts abroad.  The VA should take necessary steps to improve labor-relations in anticipation of the increased demands on the Department’s workforce.  Our veterans deserve the best care this nation can provide them.  Let’s take the necessary steps to ensure the nurse or doctor who actually provide care to veterans are given basic protections under the law.

Conclusion

By passing H.R. 949, many of the concerns that that I have described would be sufficiently addressed.  This bill would restore a meaningful scope of bargaining for Title 38 VA health care professionals by eliminating the 7422 exceptions (conduct, competence, compensation, and peer review) under the law that the VA has continued to exploit.

The restoration of meaningful bargaining rights for Tile 38 VA employees will increase the morale at the VA greatly.  It will also serve to improve recruitment and retention rates, issues which have been areas of great concern at the VA.  With thousands of veterans returning home from conflicts abroad, the time to address this critical issue is now.  Restoring a broader scope of bargaining will lead to better care for our nation’s veterans. 

NFFE greatly appreciates the Subcommittee’s decision to hold a hearing on this matter. I thank the Subcommittee for the opportunity to provide this statement.