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Mary Jean Burke

Mary Jean Burke, American Federation of Government Employees, AFL-CIO, First Executive President, National Veterans Affairs Council

Madam Chairwoman and Members of the Subcommittee:

The American Federation of Government Employees, AFL-CIO, which represents more than 600,000 federal employees who serve the American people across the nation and around the world, including significant numbers of preference eligibles in the Department of Veterans Affairs (VA) and Department of Defense (DOD), appreciates the opportunity to testify today regarding veterans’ preference rules. 

An effective veterans’ preference policy should promote both the hiring and retention of eligible veterans.  Veterans’ preference rules need to be regularly updated to remain effective when new personnel rules are put in place. Outsourcing and other policies that have a major impact on the federal workforce must be assessed for their impact on veterans’ employment.  Current mechanisms for oversight and enforcement of veterans’ preference rules must be significantly enhanced.


AFGE has received reports of selecting officials maintaining separate applicant lists to evade veterans’ preference requirements.  There does not appear to be sufficient oversight of this or other harmful practices.  Therefore, as discussed below, AFGE urges Congress to require more training for selecting officials and greater oversight of current hiring practices to ensure more consistent application of veterans’ preference rules.

Title 38 employees, most of whom work in VA medical facilities and in some DOD medical facilities, are not currently covered by statutory veterans’ preference requirements.  Preference eligibles in these positions should be afforded the same protections as their Title 5 counterparts.

Direct-Hire Authority (DHA), implemented in 2003 by federal regulation (5 CFR part 337, subpart B), has also made it easier for selecting officials to bypass veterans in the hiring process. DHA rules clearly state that veterans’ preference does not apply when selecting individuals under DHA. Despite the elaborate process set forth in the DHA rules to establish a “severe shortage of candidates” or a “critical hiring need”  in order to fill selected positions through direct hire, it is quite easy for an agency to qualify for DHA and pass over all preference eligibles.  In addition, OPM can decide independently if certain positions meet the criteria for DHA. 

AFGE urges Congress to reject pending proposals to increase the use of DHA for targeted groups, such as proposals for direct hiring of annuitants, Presidential Interns and Americorps alumnae.  Veterans’ employment will be severely impacted by allowing selecting officials to completely exclude preference eligibles from the applicant pool.



AFGE commends Chairwoman Herseth Sandlin for her leadership in protecting preference eligibles in involuntary geographic reassignments through H.R. 728, the Veterans Reassignment Protection Act. We urge the Subcommittee to clarify through additional language that preference eliglbles under all federal personnel systems, i.e. Title 5, Title 38, DOD National Security Personnel System (NSPS) and Department of Homeland Security (DHS) personnel rules are equally protected in the event of involuntary geographic reassignment. 

New Personnel Rules   

More generally, new DOD and DHS personnel rules threaten the consistency of veterans’ preference government-wide when reductions-in-force (RIF) occur. Lack of consistency, in turn, makes it nearly impossible to counsel veterans as to their RIF rights. DOD claims that NSPS preserves veterans’ preference by assigning it the exact same priority as in OPM regulations. This overlooks a key difference between NSPS and OPM RIF rules: OPM rules provide maximum opportunities for retention of those affected by the layoff, including other placement opportunities, while NSPS takes away these opportunities. The overall result of NSPS RIF rules will be the retention of junior employees over senior employees and the retention of non-veterans over veterans.

For example, under the current OPM RIF procedures, an employee who is released from his competitive level in a RIF is permitted to "bump" to a position that is held by an employee in a lower tenure group or in a lower subgroup within the same tenure group.  Similarly, a Career employee may bump a Career-Conditional employee. A veteran with a service connected disability of 30% or more may bump a veteran without such a condition, or a non-veteran, and has the right to "retreat" to a position that is the same or essentially the same job that he or she previously held. Thus, a veteran with 15 years of service could displace a veteran with 10 years. A non-veteran with 10 years of service could displace a non-veteran with only 5 years.

These opportunities are eliminated under NSPS Workforce Shaping regulations, allowing, DOD to exploit its broad discretion to select a very narrow area for a RIF.  For example, DOD could eliminate a group of three jobs held by veterans with 15-20 years of service and continue other jobs at the same location held by non-veterans with fewer years of service. Under NSPS, the preference eligibles would have no recourse to bump into these jobs.

This limitation on retention opportunities is exacerbated by the discretion DOD gives itself in the final NSPS regulations to determine the scope of competition in a RIF, known as the competitive area and narrow the competition to exclude preference eligibles from the pool.

For example, if DOD cut the number of positions at a depot devoted to major repair of the engines for F-16 aircraft, under OPM rules, all employees who report to that Depot Commander would be in the same competitive area, allowing them to compete for retention with those holding other similar jobs at the depot, e.g. those who work on the F-16 may also be qualified to work on the F-14 or the C-5.

In contrast, under NSPS, DOD will be able to depart from this procedure, allowing itself to determine competitive areas along divisions it calls "product lines" or "lines of business" or "funding lines." Repair of the F-16 engines could be defined as a "product line," so that would be the entire competitive area. Only those employees who worked on the F-16 engine would compete in the RIF.  As a result, the aircraft mechanic who is a disabled veteran would not be able to bump and displace the non-veteran who works on the C-5. In fact, that aircraft mechanic would not even be able to compete with someone who worked on another component of that same aircraft, such as avionics.

In short, the NSPS regulations will narrow the scope of competition and reduce the number of retention opportunities for senior employees and veterans. Management will be able to terminate qualified veterans with high-level performance and retain junior, non-veterans.  The discretion NSPS affords DOD managers to evade veterans’ preference is central to the NSPS system.  This is just one of the many important reasons why Congress should repeal the broad personnel authorities that gave rise to NSPS.  AFGE strongly supports the House version of the FY 2008 National Defense Authorization Act which would restore to DOD civilians the veterans’ preference rules that they enjoyed prior to the creation of the new rules under NSPS.

Veterans’ Preference Rules Should Apply to Promotions and Transfers        

Currently, preference eligilbles are only recognized in the hiring and RIF processes. Veterans’ preference rules do not apply to internal agency actions such as promotion, transfer, reassignment, and reinstatement.  These protections should be extended to internal agency actions. This change would be of particular benefit to federal employees in the Reserves or National Guard who are deployed, then return to their former positions and seek a transfer or promotion, especially in cases where they acquire a service-connected disability and therefore earn greater preference eligibility during their deployment.  These men and women who served our country should not have to transfer to another federal agency in order to benefit from their veterans’ status.


This Administration’s relentless agenda to outsource government functions has had a devastating impact on veterans, particularly those in low wage positions and those who entered federal government after rehabilitation for service-connected disabilities,

Ironically, the harm to veterans is especially evident at the Department of Veterans’ Affairs itself, where by its own admission, veterans comprise 80% of the low wage workforce.  Many of the disabled veterans who participate in VA vocational rehabilitation programs are later hired to work in VA medical facilities. In addition, certain positions in VA medical facilities and other agencies, such as custodians and guards, are restricted to preference eligilbles under 5 CFR § 330.401 et al. 

In instances where federal employers conduct OMB A-76 privatization reviews or other cost comparison studies prior to converting federal functions to contract work,  Congress should require agencies to factor in the impact of these conversions on veterans’ employment as an additional cost. 

In other instances, agencies directly convert federal work held by preference eligibles to contractors by illegally bypassing competition requirements in federal law (Section 842 of the FY06 Transportation-Treasury-HUD Appropriations Bill) and the OMB A-76 Circular. AFGE has received numerous reports from VA sites across the country of direct conversions of a wide range of federal functions including hospital laundry workers and housekeepers and cemetery groundskeepers. AFGE hopes these reports serve as an additional catalyst for Congress to impose restrictions on outsourcing of federal work and increase oversight of taxpayer dollars used for cost comparison studies, direct conversions and other outsourcing activities. 

The highly publicized crisis at Walter Reed Army Medical Center (WRAMC) produced similar reports of the adverse effects of privatization on both preference eligibles and veterans receiving care. At WRAMC, preference eligible employees held the majority of base operations support positions that were subjected to a prolonged A-76 competition, causing great job uncertainty, which in turn led to a wave of resignations and loss of jobs.

While contractors regularly assure agencies that they will make every effort to consider former federal employees for contractor jobs, they are under no obligation to hire them, much less consider veterans’ status in the hiring process, with one exception: 5 CFR §330.404 places “additional responsibilities” on agencies and OPM when the aforementioned positions that are restricted to  preference eligibles are contracted out through the OMB A-76 process.  AFGE urges Congress to ascertain whether OPM and agencies engaged in contracting out these low wage preference eligible positions have in fact met their responsibilities.


Meaningful oversight of veterans’ preference policies and the ability to track compliance are hampered by inadequate data collection.  Currently, agencies are generally responsible for enforcement, not OPM (5 USC §3320. 

AFGE urges Congress to adopt a tracking system modeled after the EEOC Management Directive 715 that provides policy guidance and standards for establishing and maintaining effective affirmative programs and reporting. This tracking system should include information about the number of preference eligibles who applied for each vacant position, and whether the applicant applied for and was turned down for other positions previously, in order to determine how many veterans were turned away from each vacant position.       


Mandatory compliance training and certification is needed to ensure that selecting officials apply veterans’ preference rules in a consistent, effective manner.  This will ensure that employees are provided updated information on veterans’ preference rules, and that in hiring and RIF actions, they properly consider veteran status.  In addition, AFGE has received reports that indicate that some preference eligilbles are not  being properly rated for their military experience, e.g. medics applying for Licensed Practical Nurse positions.


AFGE is also concerned about the adverse impact of new physical testing requirements for DOD Police and Guards, many of whom were hired under special hiring authorities designed to increase veterans hiring in DOD. Many GS-083 (Police) and GS-085 (Guards) have been grandfathered or had waivers for any physical testing requirements as many were hired under special hiring authorities designed to give veterans jobs in DOD. Now, the Army, and ultimately DOD, are seeking to force these requirements on existing employees, many of whom are disabled veterans hired under Veterans Readjustment Act.

This concludes my testimony. I would be happy to answer any questions that members of the Subcommittee may have. Thank you.